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Madhya Pradesh High Court · body

2012 DIGILAW 402 (MP)

Raghu Thakur v. State of M. P.

2012-04-13

SHEEL NAGU

body2012
ORDER 1. Both these criminal revisions filed under sections 397 and 401 of Cr.P.C. assail the rejection of an application under section 227 of Cr.P.C. filed by the petitioner for discharging him of the offences punishable under sections 489A, 489B & 489C of IPC, in which common set of facts are involved, after being heard analogously are being decided by this common order. 2. The sole ground of challenge raised by the petitioner is that except for the statement under section 27 of Indian Evidence Act made by the co-accused Jagdish, there is no evidence on record to support the case of the prosecution qua the petitioner even for the purpose of framing of charge in the above said offence. 3. Perusal of the charge sheet filed by the petitioner indicates that a person named Jagdish S/o Bhagwan Lal Khatik was arrested by the police who was in possession of several counterfeit currency notes of denomination of Rs. 500/- for the purpose of circulating the same in the market. In the statement of said Jagdish recorded under section 27 of Indian Evidence Act, the name of the petitioner was disclosed. 4. Counsel for petitioner has placed reliance on a Single Bench decision of this Court in the case of Prakash Singh V. State of M.P. 1994(II) MPWN 72 in support of his contention that naming of a person by co-accused in a statement under section 27 of Indian Evidence Act cannot enable the prosecution to bring that person within the domain of suspicion much less grave suspicion for enabling the court to frame charge of an offence for which no other evidence is collected by the prosecution. In sums and substance the said decision lays down that the statement under section 27 of Indian Evidence Act for disclosure of fact by an accused cannot be used to implicate another person against whom there is no other piece of evidence collected by the prosecution. 5. Analysing the statutory provision, it is seen that section 27 of Indian Evidence Act reads thus: “27. 5. Analysing the statutory provision, it is seen that section 27 of Indian Evidence Act reads thus: “27. How much of information received from accused may be proved- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 6. A plain reading of section 27 of Indian Evidence Act indicates that the statement under section 27 of Indian Evidence Act is an exception to the ban imposed upon the courts to utilize the confessional statement made under sections 25 and 27 of Indian Evidence Act, so as to protect a person making disclosure from being falsely implicated by the police in whose custody that person remains at the time of making disclosure. The provision of section 27 of Indian Evidence Act further indicates that the facts disclosed under section 27 of Indian Evidence Act can be used only against the person making disclosure and not against any other person. 7. The present case relates to the stage of framing of charges under section 228 of the Cr.P.C. which for convenience is reproduced below: “228.Framing of charge - (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which - (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrantcases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of subsection (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 8. Section 228 of Cr. P. C. requires formation of “presumption of the accused having committed an offence” as a prerequisite for framing of charge. The said presumption of commission of an offence is required to be arrived at by the court concerned after due consideration of the material and evidence placed by the prosecution on record, followed by formation of just, fair and legal opinion about the commission of offence, on a prima facie basis. 9. The framing of charge is an important stage of trial. At the time of framing of charge, the court concerned for the first time applies it’s mind in a judicious manner to the tenability and triability of the allegations made in the charge sheet putup by the prosecution. At this stage the court can either frame charge if the evidence and material made available by the prosecution is sufficient to presume commission of an offence or discharge the accused by invoking the provision of section 227 of Cr.P.C. on finding absence of sufficient ground to proceed by recording reasons in that regard. 10. The crux of matter which falls for consideration is that in what manner the presumption of commission of offence, which section 228 of Cr.P.C. contemplates, is required to be arrived at and when can it be said that the material and evidence made available in the charge sheet is not enough to form that presumption. 11. An insight into the above said question of availability and sufficiency of presumption has been shown by the Apex Court in the case of Dilawar Balu Kurane Vs. State of Maharashtra reported in 2002 SCC (Cri.) 310 by holding that not mere suspicion but a grave suspicion of commission of offence is required to exists in the mind of the Judge to frame charge on the strength of the prosecution material. 12. State of Maharashtra reported in 2002 SCC (Cri.) 310 by holding that not mere suspicion but a grave suspicion of commission of offence is required to exists in the mind of the Judge to frame charge on the strength of the prosecution material. 12. This court is of the considered view that sufficiency of presumption of commission of an offence or existence of grave suspicion of commission of an offence can very well be deciphered from the allegation made in the prosecution story by testing the said allegation on the anvil of the basic ingredients which constitute a particular offence as defined in the Indian Penal Code or any other piece of legislation as the case may be. 13. Reverting back to the present case, it is seen that the offences alleged by the prosecution in the charge sheet are punishable under sections 489A, 489B and 489C of IPC which relate to counterfeit of currency notes or bank notes knowing or having reason to believe the same to be forged or counterfeit note being in possession of accused for which different punishments have been provided. Thus the primary offence is of counterfeit which is defined in section 28 of IPC thus: “28. Counterfeit: A person is said to “counterfeit” who cause one thing to resemble another thing. Intending by means of that resemblance to practise deception, or knowing it to be likely that deception will thereby be practised.” 14. A perusal of the entire evidence and material placed by the prosecution before the court in shape of chargesheet/ final report, it is evident as day light that the implication of the petitioner is based solely on the statement made by coaccused Jagdish under section 27 of Indian Evidence Act without there being any other piece of evidence/ allegation against the petitioner to satisfy the requirement of the basic ingredients of the offence of counterfeit. 15. Learned counsel appearing for the respondent is State also unable to point out any evidence against the petitioner in the charge sheet except the statement of the coaccused Jagdish made under section 27 of Indian Evidence Act. 16. 15. Learned counsel appearing for the respondent is State also unable to point out any evidence against the petitioner in the charge sheet except the statement of the coaccused Jagdish made under section 27 of Indian Evidence Act. 16. Considering the submission of counsel of the rival parties and material available on record which after being tested on the anvil of the statutory provisions as stated above, this court is of the considered view that the statement of coaccused Jagdish made under section 27 of Indian Evidence Act can be used only against coaccused Jagdish and not against the petitioner, in the absence of any other piece of evidence available on record against the petitioner. Thus, no charge could have been framed against the petitioner as is held by the decision of this court in the case of Prakash Singh vs. State of M.P. (supra) and also in the case of Bhoorelal Vs. State of M.P. 2008(2) M.P.L.J. (Cri.) 271 & Sushil Kumar Sharma v. State of M.P. 1995 JLJ 444 . 17. In view of the above, it is held that there was no evidence at all against the petitioner much to frame charges against the petitioner for offence punishable under sections 489A, 489B and 489C of IPC. Resultantly, these criminal revisions are allowed and the charge framed against the petitioner for offence punishable under sections 489A, 489B and 489C of IPC is setaside. The petitioner is accordingly discharged of the offences alleged against him under sections 489A, 489B and 489C of IPC.