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2016 DIGILAW 1671 (RAJ)

Hansmukh Son of Heera Lal v. State of Rajasthan

2016-11-19

BANWARI LAL SHARMA

body2016
JUDGMENT : Banwari Lal Sharma, J. Petitioner-accused Hansmukh has preferred this misc. petition under Section 482 Cr.P.C. for quashing FIR No. 162/2014 registered at Police Station Gandhi Nagar, Jaipur City (East) for offence under Sections 420, 467, 468 and 471 IPC and Section 12 of the Passport Act, 1967. 2. Learned counsel for the petitioner Mr. A.K. Gupta submits that petitioner is not named in FIR, he has been implicated in this matter only on the basis of statements of co-accused - Pradeep Kumar Panchal with whom petitioner has no concern. He submits that he didn't endorse any entry in the passport of Pradeep Kumar Panchal, therefore, impugned FIR qua petitioner may be quashed. 3. Investigating Officer Mr. Subhash Chand, SI, PS, Gandhi Nagar, Jaipur (East) is present in person who submitted factual report of the matter through learned PP Mr. Anil Yadav which is taken on record. He submits that passport holder Pradeep Kumar Panchal submitted an affidavit wherein he clearly stated that the said entry was managed from petitioner. 4. Learned PP Mr. Anil Yadav submits that coaccused Pradeep Kumar Panchal submitted an affidavit stating therein that he got managed the PCC in passport from petitioner but thereafter he submitted another -affidavit wherein he denied for the same, therefore, there are contradictory affidavits of co-accused Pradeep Kumar Panchal. 5. Learned PP Mr. Anil Yadav further submits that there is no evidence except the affidavit of co-accused Pradeep Kumar Panchal against the present petitioner to connect him with the alleged offence. He fairly conceded this fact that statement or affidavit of co-accused is not admissible in evidence and Investigating Officer could not collect any evidence against the present petitioner to connect him with the alleged offence except the aforesaid affidavit. 6. I have considered the submissions made at Bar. 7. In the matter of Saquib Abdul Hameed Nachan v. State of Maharashtra reported in 2010 (9) SCC 93 Hon'ble Supreme Court clearly observed that confession of a co-accused ought not be brought within the sweep of Section 32(1). As a corollary, it follows that the confession of the first and second accused in this case recorded by the police officer under Section 32(1), are of no avail against the co-accused or against each other. 8. As a corollary, it follows that the confession of the first and second accused in this case recorded by the police officer under Section 32(1), are of no avail against the co-accused or against each other. 8. We also agree with the High Court that such confessions cannot be taken into consideration by the Court under Section 30 of the Evidence Act. The reason is that the confession made to a police officer or the confession made while a person is in police custody, cannot be proved against such person, not to speak of the co-accused, in view of the mandate of Sections 25 and 26 of the Evidence Act. If there is a confession which qualifies for proof in accordance with the provisions of the Evidence Act, then of course, the said confession could be considered against the co-accused facing trial under POTA. But, that is not the case here. 9. As such the confessional statement before the police officer of the co-accused is not admissible and cannot make ground to implicate the petitioner in the present case. 10. It was also contended by the learned counsel for the petitioner that the case of the petitioner falls on the grounds laid down by the Hon'ble Supreme Court in the case of State of Haryana & Ors. v. Ch. Bhajan Lal & Ors. [1992 Suppl (1) SCC 335]. In this case, the Hon'ble Supreme court have framed seven grounds on the basis of which the FIR can be quashed. The Hon'ble Supreme Court, in para No.105, observed as under:- "105. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognisable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the un-controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognisable offence but constitute only a non-cognisable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 11. In the case in hand, since if allegations made in the FIR and the evidence collected in support of the same are taken as face value in this case, same do not disclose the commission of any offence against the present petitioner, therefore case of present petitioner covers with ground 3 of the aforesaid judgment. 12. In view of it, this Misc. 12. In view of it, this Misc. petition is allowed and the impugned FIR No. 162/2014 registered at Police Station Gandhi Nagar, Jaipur City (East) for offence under Sections 420, 467, 468 and 471 IPC and Section 12 of the Passport Act, 1967 qua petitioner Hansmukh is quashed and set aside. However it is made clear that this order shall not effect the case of the other accused.