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2012 DIGILAW 281 (RAJ)

Bheru Singh v. State of Rajasthan

2012-02-03

SANDEEP MEHTA

body2012
Hon'ble MEHTA, J.—The instant miscellaneous petition has been preferred by the petitioner seeking quashing of the criminal proceedings arising out of the FIR No. 20/2011; registered at the Police Station, Baap, District Jodhpur for offence under Section 16/54 of the Rajasthan Excise Act and the proceedings subsequent to filing of the charge-sheet. 2. Succinctly stated, the facts of the case, relevant and necessary for disposal of the present miscellaneous petition, are that Shri Rajeev Bhadu, Station House Officer, Police Station, Baap, District Jodhpur, received an information from the source-informer that Bheru Singh S/o Pep Singh r/o Badi Seed, Police Station, Baap, District Jodhpur the present petitioner) has used an abandoned field for the purposes of manufacture of illicit liquor by using spirit and that he had concealed a tanker full of spirit beneath the soil. On receiving the said information, the Station House Officer initiated search proceedings at the outskirts of village Badi Seed. He saw an elevated portion in the field, which on being dug open, was found to be having a tanker buried under the soil. The tanker, on being dug out from the land, was found containing liquid smelling like spirit and was bearing registration No. MP-09-HE-5194 and was having the name "Heera Tanker Corporation" printed on it. Spirit measuring about 1200-1500 liters was found in the tanker. It is alleged that the search of the petitioner was undertaken but he was not found anywhere near the village. On the basis of the recovery, a case under Section 16/54 of the Rajasthan Excise Act was registered being FIR No.20/2011 at the Police Station, Baap and the samples were taken from the recovered contraband and thereafter the investigation commenced. On an inquiry made from the "Halka" Patwari about the ownership of the land in question, he informed that the land in question was a "Gair-Mumkin" government land bearing khasra No.113 of village Badi Seed. On the conclusion of the investigation, the police filed a charge-sheet against the accused-petitioner for the offence under Section 16/54 of the Rajasthan Excise Act, which has been assailed and impugned by way of the instant miscellaneous petition. 3. Learned counsel for the petitioner, assailing the charge-sheet and all the subsequent proceedings, sought to be taken against the petitioner in this matter, submitted that the charge-sheet ex facie does not disclose any reason or justification to prosecute the petitioner in this matter. 3. Learned counsel for the petitioner, assailing the charge-sheet and all the subsequent proceedings, sought to be taken against the petitioner in this matter, submitted that the charge-sheet ex facie does not disclose any reason or justification to prosecute the petitioner in this matter. He submitted that whole of the charge-sheet does not disclose any cause of action whatsoever against the petitioner because neither the land in question is that of the petitioner, nor there is anything evidence on record to show that the petitioner was using or having possessed the said portion of land. He further submitted that no link whatsoever has been established in relation to the petitioner being in possession or control of the tanker in question; thus he prayed that the charge-sheet impugned deserves to be quashed. 4. This Court had issued notices to the respondents and a specific direction was given to the learned Public Prosecutor to call the investigating officer before this Court. Mr. Rajeev Bhadu, the Investigating officer, Police Station, Baap, District Jodhpur, appeared before this Court on 12.1.2012 and the learned Public Prosecutor was directed to file a reply to the miscellaneous petition and was also directed to keep the Commissioner of Police as also the Superintendent of Police (Rural), Jodhpur to remain present in the court on 19.1.2012. The aforesaid Police Officials appeared before this Court and on a query being made about the grounds raised in the miscellaneous petition, it was intimated to this Court that the charge-sheet filed in the matter against the petitioner did not reveal any evidence to connect the petitioner with the field in question. It was also intimated that that the ownership or possession of the tanker in question could also not be linked with the petitioner because the registered owner of the said tanker had expired. A reply has also been filed to the miscellaneous petition, in which an aspersion has been made on the conduct of the petitioner in reference to a large number of cases having been registered against him. A reply has also been filed to the miscellaneous petition, in which an aspersion has been made on the conduct of the petitioner in reference to a large number of cases having been registered against him. The Superintendent of Police (Rural), Jodhpur Police has submitted that he approved filing of the charge-sheet against the petitioner, but he took frankly admitted that there is no evidence on the record of the case within the meaning of the term "evidence" as defined in Section 3 of the Indian Evidence Act, which can be proved against the petitioner at the proposed trial on the basis of the charge-sheet filed. He submitted that he was satisfied that the petitioner, was a known offender of Excise Act offences and since the field in question from where the recovery of tanker was made, was near to the village where the petitioner resides, therefore, there was ample material to charge-sheet the petitioner in the case in his opinion. 5. The Commissioner of Police candidly admitted before the Court that the charge-sheet should only be filed against a person accused of an offence after there being evidence available on record to connect him with the crime because in absence of any evidence being on record, the offender would be set free by the court as the prosecution would fall to bring home the guilt to the accused. On a further inquiry being made as to whether any preventive measures were taken against the petitioner looking to his alleged criminal conduct stated to be adverse to the law and order situation in the society, it was intimated that proceedings under the Rajasthan Habitual Offenders Act and for opening of a History-sheet have been initiated against the petitioner on 25.2.2011. On further inquiry by the court as to whether any preventive detention orders are being proposed against habitual offenders in Jodhpur Division, no figures were pointed out to the court about the use of such preventive measures under the laws preventive detention. 6. After having considered the arguments advanced at the bar, this Court feels that consideration of the term "evidence", as defined in the Evidence Act, has to be made in this matter. The term "evidence" has been defined in Section 3 of the Evidence Act, which reads as under: "3. 6. After having considered the arguments advanced at the bar, this Court feels that consideration of the term "evidence", as defined in the Evidence Act, has to be made in this matter. The term "evidence" has been defined in Section 3 of the Evidence Act, which reads as under: "3. Evidence.—"Evidence means and includes- (1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence. 7. For the purpose of proceeding against a person on a charge-sheet, the Magistrate has to proceed in accordance with Section 190(1)(b) Cr.P.C. Thus, before the Magistrate can take cognizance of an offence, he should receive a police report of such facts which constitute an offence. Subsequent to taking of cognizance, the Magistrate has to summon the accused by resort to Section 204 Cr.P.C. and thereafter only the accused can be proceeded against. Section 204 Cr.P.C. reads as below : "204. Issue of process.—(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process -fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of Section 87." 8. (5) Nothing in this section shall be deemed to affect the provisions of Section 87." 8. Thus, a conjoint reading of these two provisions clearly reveal that though a police report may disclose fact sufficient for the Magistrate to take cognizance of an offence, but before the Magistrate proceeds against the accused, he has to be satisfied that there is sufficient ground for proceeding against the accused. Unless and until there is evidence available on record which is capable of being proved against the accused, it would not be permissible for the Court to proceed against the accused. 9. As has been observed above and as is apparent from the reply to the miscellaneous petition, there is no such evidence on the record of the investigation, which, if proved, can be treated to be a piece of evidence for connecting the present petitioner with the alleged crime. Thus, this Court is left with no option but to exercise its powers under Section 482 Cr.P.C. for quashing the charge-sheet filed against the petitioner in this case. 10. Before parting with the matter, this Court feels its duty to make a comment about the functioning of the Rajasthan Police. A big issue is being sought to be raised by the police officials in relation to the conduct of the accused and it has been intimated to this Court that the conduct of the present petitioner is prejudicial to the society at large because he has been found involved in a large number of criminal cases including the cases under the Rajasthan Excise Act. If at all this is the contention and satisfaction of the police officials then the appropriate action, which ought to have been taken by the police officials, was to have exercised the powers of preventive detention available under the Rajasthan Prevention of Anti-Social Activities Act or the National Security Act and other like Statutes. As has been noted above, the Commissioner of Police has informed this Court that hardly any order of preventive detention has been passed for last three years in the Jodhpur Division. This, in the opinion of this Court, is a serious issue reflecting on the lack of decisive approach of the concerned police officials. As has been noted above, the Commissioner of Police has informed this Court that hardly any order of preventive detention has been passed for last three years in the Jodhpur Division. This, in the opinion of this Court, is a serious issue reflecting on the lack of decisive approach of the concerned police officials. If at the police officials are serious about using the preventive measures for the purpose of taking action against an anti-social elements in the society and when the Legislature has enacted various Acts like the National Security Act and the Rajasthan Anti-Social Activities Act, whereby such persons, whose activities are genuinely prejudicial to the safety of the society at large or are prejudicial to the Law and Order situation, then the resort to such provisions has to be made. The situation wherein the police officials try to shirk their responsibility and pass their burden on the courts by filing frivolous charge-sheets leading to a situation wherein a person, who ought to be behind the bars by application of appropriate measure provided under the Preventive Detention Laws, goes scot-free because the courts have to act on hard evidence which can be proved whilst the police saves itself from the responsibility by filing such charge-sheet. 11. Thus, this Court holds that in future, instead of filing a frivolous charge-sheet against a person, whose conduct is prejudicial to the society at large, the concerned police official should take resort to the preventive majors, some of which have been mentioned above. 12. Resultantly, the miscellaneous petition succeeds. The charge-sheet filed against the petitioner in this case, as well as all the subsequent proceedings sought to be taken against him, are hereby quashed. The stay application also stands disposed of.