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2011 DIGILAW 2347 (RAJ)

Shakir @ Billu v. State of Rajasthan

2011-11-03

MAHESH CHANDRA SHARMA

body2011
Hon'ble SHARMA, J.—This misc. petition has been filed by the petitioners under section 482 Cr.P.C. against the order dated 21.6.2011 passed by Chief Judicial Magistrate Tonk whereby the application under section 306 Cr.P.C. filed by the SHO Police Station Purani Tonk in FIR No. 33/2011 for the offence under sections 302, 201, and 120 BIPC was allowed and accused Mujib S/o Sher Khan @ Habib was granted permission under section 306 Cr.P.C. to become as approver (sultani gawah). 3. Brief facts of the case are that on 23.3.2011 a written report was lodged at Police Station, Purani Tonk by Manjur Ahmed @ Madhopuria S/o Ismail Khan wherein it was alleged that when he was going towards Naya Bus Stand from Stadium on his Riksha and reached at near Water Tank, there he saw that a person is lying dead in the Nali near the road. Thereafter he telephoned to Police. On the basis of the above report the Police registered FIR No. 33/11 for the offence under sections 302 and 201 IPC and investigation commenced. During the course of investigation the accused petitioners and accused Chandra Prakash S/o Shyam Lal and Muzib son of Shri Sher Khan were arrested and presently they are all in custody. Chandra Prakash Harijan S/o Shyam Lal has been released on bail by the Coordinate Bench of this court being juvenile. 4. On 21.5.2011, the Station House Officer Police Station Purani Tonk filed an application before the Chief Judicial Magistrate, Tonk with the prayer to allow accused Muzib S/o Sher Khan as approver and to appoint Magistrate to record his statement under section 164 Cr.P.C. The Chief Judicial Magistrate Tonk appointed the Additional Chief Judicial Magistrate Uniara to record the statement under Section 164 Cr.P.C. of accused Mujib. The statement of accused Muzib under Section 164 Cr.P.C. was recorded on 27.5.2011 by the Additional Chief Judicial Magistrate Uniara. on 6.6.2011, the Station House Officer, Police Station, Purani Tonk filed application before the Judicial Magistrate First Class District Tonk to allow accused Muzib S/o Sher Khan as approver. The Judicial Magistrate vide its order dated 9.6.2011 dismissed this application with the direction to submit the application before the competent court on the ground that there is no enquiry or trial is pending before him. The Judicial Magistrate vide its order dated 9.6.2011 dismissed this application with the direction to submit the application before the competent court on the ground that there is no enquiry or trial is pending before him. The SHO filed fresh application before the Chief Judicial Magistrate Tonk on 10.6.2011 with the same prayer to declare accused Muzib as approver. The Chief Judicial Magistrate vide its order dated 21.6.2011 allowed the application filed by the SHO and declared accused Muzib S/o Sher Khan under Section 306 Cr.P.C. as approver (sultani gawah). The Judicial Magistrate Tonk on 28.6.2011 recorded the statement of Muzib son of Sherkha under Section 306(4) Cr.P.C. 5. Mr. Vimal Kumar Jain, learned counsel appearing for the petitioners has contended that the order passed by the Chief Judicial Magistrate is contrary to the provisions of Section 306 Cr.P.C. He has further contended that the trial court has not seen the fact that during the course of investigation upto the date there is no eye witness of the incident and thus there is no hope of success in the matter and that is why they have moved aforesaid application for declaring Muzib as approver. He has further drawn attention of this court that the approver Muzib in the statements recorded under section 164 Cr.P.C. and 306 (4) Cr.P.C. has separated himself from committing any offence and has narrated himself as witness seeing the incident from 08-10 feet. Therefore such type of persons can not be declared under section 306 Cr.P.C. as an approver. Hence the judgment passed by the Chief Judicial Magistrate Tonk dated 21.6.2011 is against the provisions of section 306 Cr.P.C. 6. On the other hand, Mr. Peeyush Kumar and Mr. Kapil Gupta, learned counsel appearing for the applicant Muzib have contended that from the bare perusal of the statements given by the approver Muzib are not contrary to section 306 Cr.P.C. and it cannot be said that he has separated himself from the offence. The statements recorded under section 164 Cr.P.C. and section 306(4)clearly show that he has participated in the offence and both the statements given by the approver are not contrary to each other but the fact is that both the statements are corroborated by each other. The statements recorded under section 164 Cr.P.C. and section 306(4)clearly show that he has participated in the offence and both the statements given by the approver are not contrary to each other but the fact is that both the statements are corroborated by each other. It is a fact that there is no eye witness in the case that is why the court has allowed Muzib as approver after considering the provisions of section 306 Cr.P.C. and the court has permitted Muzib as approver. The order of the CUM should not be interfered in Section 482 Cr.P.C. 7. I have heard the learned counsel for the parties. First of all the provisions of Sec. 306 Cr.P.C. are to be looked into. The same reads as under : 306. Tender of pardon to accomplice.- (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his know-ledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. (2) This section applies to- (a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952); (b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. (3) Every Magistrate who tenders a pardon under sub-section (1) shall record-(a) his reasons for so doing; (b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost. (4) Every person accepting a tender of pardon made u/sub-sec. (4) Every person accepting a tender of pardon made u/sub-sec. (1)- (a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b) shall, unless he is already on bail, be detained in custody until the termination of the trial. (5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case.- (a) commit it for trial- (i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii) to a Court of special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court; (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself. 8. From the provisions of section 306 Cr.P.C. it is clear that the order passed by the Chief Judicial Magistrate is not contrary to the provisions of this section allowing the application of the SHO for allowing Muzib to become approver. The statements given by Muzib under section 164 Cr.P.C. before the Additional Chief Judicial Magistrate and thereafter before the Judicial Magistrate Tonk under section 306(4) Cr.P.C. are corroborated with each other. It is also an admitted fact that there was no eye witness of the occurrence. In these circumstances I do not think it proper to interfere with the order dated 21.6.2011 passed by the Chief Judicial Magistrate Tonk in allowing the application of the SHO under section 306 Cr.P.C. to allow Mujib to become approver in the case and give his statements under section 164 Cr.P.C. and section 306 (4) Cr.P.C. 9. For these reasons, the misc. petition being devoid of merit stands rejected. The interim order dated 30.8.2011 passed by this court stands vacated. The stay application also stands rejected. The trial court is directed to complete the trial within a period of six months.