Kanhaiya Lal vs State Of Rajasthan

Rajasthan High Court - Jodhpur

Kanhaiya Lal vs State Of Rajasthan on 31 May, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:23028]

          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
     S.B. Criminal Miscellaneous 4th Bail Application No. 2916/2023

Kanhaiya Lal S/o Sh. Chunni Lal Meghwal Balai, Aged About 50
Years, Birbavdi, P.s. Begun Dist. Chittorgarh. (At Present Lodged
In Sub Jail, Shahpura).
                                                                     ----Petitioner
                                      Versus
State Of Rajasthan, Through Pp
                                                                   ----Respondent


For Petitioner(s)           :     Mr. Vijay Raj Bishnoi
                                  Mr. B.R. Bishnoi
For Respondent(s)           :     Mr. Arun Kumar, PP



                  HON'BLE MR. JUSTICE FARJAND ALI

                                       Order

ORDER PRONOUNCED ON                       :::                      31/05/2024

ORDER RESERVED ON                         :::                      18/03/2024
BY THE COURT:-

1. The jurisdiction of this court has been invoked by way of filing the instant 4th bail application under Section 439 CrPC at the instance of accused-petitioner. The requisite details of the matter are tabulated herein below:

S.No.                           Particulars of the Case
     1.     FIR Number                                240/2020
     2.     Concerned Police Station                  Jahajpura
     3.     District                                  Bhilwara
     4.     Offences alleged in the FIR               Section 8/15 of the NDPS
                                                      Act
     5.     Offences added, if any                    Section 8/29 of the NDPS
                                                      Act
     6.     Date of passing of impugned 20.01.2023
            order (Bail Appln. No.2916/2023




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 [2024:RJ-JD:23028]                   (2 of 5)                    [CRLMB-2916/2023]

2. The first, second and third bail applications of accused Kanahiyal Lal being SBCRLMB Nos.5215/2021, 13913/2022 & 13588/2022 came to be dismissed as withdrawn by the Coordinate Bench and this Court vide orders dated 27.08.2021, 21.01.2022 & 21.12.2022.

2. It is contended on behalf of the accused-petitioner that no case for the alleged offences is made out against him and his incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused- petitioner and he has been made an accused based on conjectures and surmises. He has not been named in the FIR and no recovery has been effected at his instance.

3. Contrary to the submissions of learned counsel for the petitioner, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

4. Have considered the submissions made by both the parties and perused the material available on record.

5. Admittedly, no recovery has been effected from the petitioner. He has not been named in the FIR. The prosecution has failed to show any direct nexus between the co-accused and the present petitioner so also there is no connection between the recovered article and the petitioner. It seems that the case of prosecution mainly and wholly based upon confessional statement made by the co-accused before a police officer while in police custody. What would be the evidentiary value of the above is a serious question which this Court is not going to adjudicate at this (Downloaded on 04/06/2024 at 08:38:25 PM) [2024:RJ-JD:23028] (3 of 5) [CRLMB-2916/2023] stage as the same may be fetter for the prosecution. No evidence has been collected by the agency to substantiate the above allegation. It is the admitted case of the prosecution that neither the petitioner was found present at the crime scene nor any incriminating material or contraband was recovered from his possession. Except the disclosure statement of the co-accused Lobichand and Ramzan there is no other evidence to book the petitioner in the present case. This court is wondering as to who will come to the witness box in the trial to assert the fact that the person, who made his escape good from the spot was the petitioner. If the Seizing Officer in his statement would narrate the fact that he was informed by the co-accused, then his evidence would be hit by the provisions of the Evidence Act on the premise that the same would be a hearsay evidence.

6. If it is an information under Section 27 of the Evidence Act, something is required to be recovered or discovered in pursuance of the information supplied under Section 27 of the Evidence Act which distinctly relates to the commission of the crime. It is the admitted case of prosecution that in pursuance of the information furnished under Section 27 of the Evidence Act regarding the culpability of the petitioner, nothing new was disclosed, recovered or discovered. This court is of the view that at least there must be some corroborations or support to verify the confession made by the accused to the Police Officer while in lockup.

7. It has been held by Hon'ble the Supreme Court in the case of Mohd. Inayatullah Vs. State of Maharastra, reported in AIR 1976 SC 483 that in order to apply Section 27 of the Indian Evidence Act, only the components which are essential or were the (Downloaded on 04/06/2024 at 08:38:25 PM) [2024:RJ-JD:23028] (4 of 5) [CRLMB-2916/2023] cause of the discovery would be considered to be legal evidence. The relevant paragraph of the judgment reads as under:-

"For the application of Section 27 the statement must be split into its components and to separate the admission portion. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected."

8. It can be manifested from a simple reading of Section 27 of the Evidence Act and the judgments referred above that only information in the form of confession received from disclosure made by an accused cannot be taken as reliable piece of evidence in isolation until there is a discovery or a recovery of another fact to corroborate the said information and prove its veracity. Precisely, it can be said that Section 27 of Evidence Act is an exception to Sections 24, 25 and 26 of Evidence Act, however, the exception limits its admissibility only upto what is envisaged in the statute itself and not beyond that. What would be the evidentiary value of the same cannot be adjudicated at this stage as the same may influence the course of trial, however, in the given circumstances I am sure that the embargo contained under Section 37 of the NDPS Act would not come into the way of granting bail to the petitioner. Be that as it may, no final observations and comments can be made at this stage, as the same may influence the course of trial.

9. Accordingly, the instant bail application under Section 439 Cr.P.C. is allowed and it is ordered that the accused-petitioner as named in the cause title shall be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two (Downloaded on 04/06/2024 at 08:38:25 PM) [2024:RJ-JD:23028] (5 of 5) [CRLMB-2916/2023] sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance before the court concerned on all the dates of hearing as and when called upon to do so.

(FARJAND ALI),J 1-Mamta/-

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