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2005 DIGILAW 356 (RAJ)

Jagdish Singh v. State of Rajasthan

2005-02-07

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-Both these criminal revision petitions under Section 397/401, CrPC are directed against the order dated 10.03.2004 passed by Judicial Magistrate No. 1, Jodhpur (for short the trial Court hereinafter) in criminal regular case No. 720/2003, whereby the trial Court framed the charges against the petitioners for the offences under Sections 394/34, 120-B and 411, IPC. Aggrieved by the order framing charges, both the petitioners have filed the aforesaid two separate revision petitions. 2. I have heard learned Counsel for the petitioners and the learned Public Prosecutor for the State. Perused the order impugned. I have carefully gone through the record of the trial Court. 3. It is contended by the learned Counsel for the petitioners that there appears to be no material to convict the petitioners for the offences charged with, even if the material placed on record by the prosecution remains controverted. It was contended that only material placed on record by the prosecution against petitioner Hari Singh is that he furnished information under Section 27 if the Evidence Act (for short the Act hereinafter) while in custody to the Investigating Officer stating therein that Sumer Singh gave him Rs. 4,000/-, out of which Rs. 2,500/-were borrowed by Onkar Singh Rajpurohit and remaining amount has been spent by him and so far as petitioner Jagdish Singh is concerned, he has furnished information under Section 27 of the Act to the Investigating Officer while in custody that Sumer Singh Rajpurohit gave him Rs. 4,000/-after robberring from Babu Lal, out of which Rs. 2,000/-was borrowed by Onkar Singh and remaining amount is with him. In furtherance of the information under Section 27 of the Act, nothing has been recovered from both the petitioners. Section 27 of the Act provides that only that portion of the information which relates strictly to discovery can be proved and admissible in evidence. In the instance case, nothing has been discovered in consequence of the information alleged to have been furnished by both the petitioners and, therefore, there being no worth evidence admissible in evidence against both the petitioners on which it can be presumed that the petitioners have committed the offence. Learned Public Prosecutor could not point out any other material against both the petitioners except the aforesaid information under Section 27 of the Act. 4. Learned Public Prosecutor could not point out any other material against both the petitioners except the aforesaid information under Section 27 of the Act. 4. On close scrutiny of the entire record of the trial Court, there being no other material except the information under Section 27 of the Act alleged to have been furnished by petitioner Hari Singh and Jagdish Singh. The information furnished by Hari Singh reads as under: unchallenged, then also there is no chance of basing the conviction on such an information. In consequence of the information received from petitioner Hari Singh, no fact has been discovered and nothing has beed recovered from him and, therefore, there is no chance of conviction even on the basis of information furnished by him. So far as information furnished by petitioner Jagdish Singh under Section 27 of the Act is concerned, nothing has been recovered and if petitioner Jagdish Singh stated that Sumer Singh gave him a sum of Rs. 4,000/-, which was robbed by him from Babulal, this could have been admissible in evidence had there being any amount recovered from him in consequence of this information. Admittedly, no amount has been recovered from both the petitioners and, therefore, there is no chance of conviction on the basis of information furnished by them, even if not challenged or controverted. 6. A Division Bench of this Court in Prithviraj vs. State of Rajasthan, 2004 (2) RLR 514, held that Section 27 of the Act is an exception to the general rule that a statement made before the police is not admissible in evidence. However, it was further held that requirement of the condition precedent for application of Section 27 of the Act are that the fact must have been discovered in consequence of the information received from the accused; the person giving the information must be accused of an offence; he must be in custody of a police officer; only that portion of the information which relates strictly to discovery can be proved; the rest is irrelevant and; the discovery of fact must relate to the commission of some crime. In the instant case, nothing has been discovered in furtherance of the alleged information furnished by both the petitioners and, therefore, there being no evidence which may be admissible in evidence against the petitioners to presume that the petitioners have committed the offence. .7. In the instant case, nothing has been discovered in furtherance of the alleged information furnished by both the petitioners and, therefore, there being no evidence which may be admissible in evidence against the petitioners to presume that the petitioners have committed the offence. .7. In Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi, 1976 (3) SCC 736 , the Honble Supreme Court held that where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused, the process issued by the Magistrate can be quashed on such case being. The guidelines have been given by the Honble Apex Court in Smt. Nagawwas case (Supra) that in the following cases the order of Magistrate issuing process can be quashed or set aside:- .(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; .(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of complainant by legally competent authority and the like. 8. In this view of the matter the order framing charges against the petitioners for the offences noticed above cannot be sustained and is liable to be set aside. 9. Consequently, both the revision petitions succeeds and are allowed. Order impugned dated 10.03.2004 framing charges against petitioners Jagdish Singh and Hari Singh for the offences under Sections 391/34, 120-B and 411, IPC is hereby set aside. The petitioners are discharged of the offences noticed above. Record of the trial Court returned forthwith.