Madhya Pradesh High Court
Ramgopal Sahu @ Gopal Sahu vs The State Of Madhya Pradesh on 20 January, 2025
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 20th OF JANUARY, 2025
MISC. CRIMINAL CASE No. 45338 of 2024
RAMGOPAL SAHU @ GOPAL SAHU
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Sukhendra Singh - Advocate through videoconferencing.
Shri Raghuwar Prajapati - Panel Lawyer for the State.
ORDER
The present petition has been filed under Section 528 of the BNSS
(Sec.482 of the Cr.P.C.) for quashing of the charge-sheet filed by the police
of the Police Station, Gadarwara District Narsinghpur in connection with
Crime No.450/2024, dated 07-05-2024 registered under sections 379, 467,
468, 471, 34 and 411 of the IPC and under Section 136 of the Electricity Act
and ensued proceedings thereon.
2. The counsel for the petitioner contends that in the present case
impugned FIR was lodged on 07-05-2024 at around 09:44 p.m., vide FIR
No.450/2024 with the Police Station, Gadarwara District Narsinghpur
alleging inter alia that when the complainant went to his field on 06-05-2024
at about 11:00 a.m., he found that three persons were running from the spot.
Then the complainant made an effort to switch on the transformer, but the
same did not start. Upon its inspection it was found that 70 liters of oil from
the transformer value of which was Rs.9500/-, was stolen. It is contended by
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the counsel that later on, a TIP was conducted which is contained in
Annexure-A/2, and the complainant identified three persons, who had
committed the offence, namely, Amit Kumar, Rghuvir Kushwaha and
Rambabu @ Badabhai. This TIP was in tune with the FIR, inasmuch as in
the FIR also there was mention of the names of three persons only by the
complainant. The counsel contends that if the FIR was against three persons,
three persons were duly identified in the TIP, implication of the present
petitioner was unsustainable.
3. It is contended by the counsel for the petitioner, that without there
being any basis, the present petitioner has been implicated and, therefore, the
entire prosecution so launched against the present petitioner deserves to be
quashed.
4. Per contra, counsel for the State submits that instant petition filed by
the petitioner deserves to be dismissed. In the present case, three accused
persons were in collusion with other person also, and even the stolen oil was
sold to other persons, who have been made accused in the present case. The
stand put forth on behalf of the petitioner cannot be gone into at this stage,
and the same is required to be considered by the trial Court during course of
trial. Hence, at this stage no interference in the proceedings is warranted,
and the instant petition deserves to be dismissed.
5. Having considered the submissions advanced on behalf of the
parties, a perusal of the record reflects that in the FIR, it was clearly
mentioned by the complainant that three persons upon finding them fled
from the spot and those three persons were duly identified by the
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complainant in the TIP. The TIP is on the record. There is memorandum of
Ankit Sahu, and in the said memorandum it is mentioned by Ankit Sahu that
Raghuvir Kushwaha, Dashrath Kushwaha, Rambabu Kushwaha and the
present petitioner had made a plan to steal the transformer oil. On the basis
of the said memorandum, the present petitioner has been implicated. Apart
from the said memorandum, there is no mention of the name of the present
petitioner. The memorandum of the co-accused itself cannot be made basis to
implicate the present petitioner.
6. Undisputedly, only three persons were found on the spot by the
complainant himself, and the complainant duly identified those three persons
in the TIP. The present petitioner was not one of those three persons and,
therefore, implication of the present petitioner on the basis of memorandum
of co-accused is unsustainable, as the transformer oil so stolen from the
complainant was sold to two persons, namely, Vipin Sahu and Rajaram
Sahu. As per the memorandums of all accused persons, namely, Ankit Sahu,
Raghuvir, Rambabu Kushwaha, they were stealing the oil and they fled away
from the spot, when they found that the owner of the field was coming. It is
undisputed from the perusal of the FIR that, only three persons were there,
who escaped when the complainant reached to the spot, and those three
persons were identified by the complainant in the TIP.
7. It is further important to note that one Ashok Kaurav, who is owner
of the adjoining field, had also seen only three persons. Therefore,
apparently, it is not the case of the prosecution that apart from three persons,
there was any other person at the spot.
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8. It is true, that interference with the prosecution under Section 482 of
CrPC is not permitted, when the FIR and the documents prima facie, disclose
commission of the offence. In the present case, the FIR as well as statement
of the complainant and also the statement Ashok Kaurav, who is neighbour
and he had also seen the accused persons, clearly reveal that only three
persons were there at the spot, who fled when they found that the owner of
the land was coming. Therefore, implication of the present petitioner on the
strength of memorandum of the co-accused is unsustainable.
9. A Co-ordinate Bench this Court in the case of Dilip Kumar Vs.
State of M.P., M.Cr.C. No.2748/2022 decided on 12.04.2022 has held in
paragraph No.15 to 18 as under:-
"15. A close scrutiny of the charge sheet reveals that apart from
the aforesaid memo and the bank statement of Dangi brothers,
there is no other material available on record to suggest that the
present petitioner Deelep had also facilitated the sale of fake
fertilizer which was prepared by Suresh Dangi and other accused
persons. There is also no evidence available on record to suggest
that the present petitioner Deelep obtained from Suresh Dangi any
amount over and above the requisite amount of the sale of gypsum
granules to him, which can be said to be connected with the sale
of fake fertilizer.
16. Regarding admissibility of the confessional statement given
by a co-accused and of the petitioner, a reference may be had to
the decision rendered by the Supreme Court, authored by Vivian
Bose, J. in the case of Kashmira Singh v. State of Madhya Pradesh
(supra), the relevant paras 8, 9, 10 and 11 of the same read, as
under : -
"8.Gurubachan's confession has played an important part in
implicating the appellant, and the question at once arises, how far
and in what way the confession of an accused person can be used
against a co-accused? It is evident that it is not evidence in the
ordinary sense of the term because, as the Privy Council say in
Bhuboni Sahu v. King. "It does not indeed come within the
definition of 'evidence' contained in Section 3 of the Evidence
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Act., It is not required to be given on oath, nor in the presence of
the accused, and it cannot be tested by cross-examination."
Their Lordships also point out that it is "obviously evidence of a
very weak type ... It is a much weaker type of evidence than the
evidence of an approver, which is not subject to any of those
infirmities."
They stated in addition that such a confession cannot be made
the foundation of a conviction and can only be used in "support of
other evidence". In view of these remarks it would be pointless to
cover the same ground, but we feel it is necessary to expound this
further as misapprehension still exists. The question is, in what
way can it be used in support of other evidence? Can it be used to
fill in missing gaps? Can it be used to corroborate an accomplice
or, as in the present case, a witness who, though not an
accomplice, is placed in the same category regarding credibility
because the Judge refuses to believe him except insofar as he is
corroborated?
9. In our opinion, the matter was put succinctly by Sir Lawrence
Jenkins in Emperor v. Lalit Mohan Chucker-butty where he said
that such a confession can only be used to "lend assurance to other
evidence against a co-accused" or, to put it in another way, as
Reilly J. did in Inre Periyaswami Moopan
"the provision goes no further than this--where there is evidence
against the co-accused sufficient, if believed, to support his
conviction, then the kind of confession described in Section 30
may be thrown into the scale as an additional reason for believing
that evidence".
10. Translating these observations into concrete terms they come
to this. The proper way to approach a case of this kind is, first, to
marshal the evidence against the accused excluding the confession
altogether from consideration and see whether, if it is believed, a
conviction could safely be based on it. If it is capable of belief
independently of the confession, then of course it is not necessary
to call the confession in aid. But cases may arise where the Judge
is not prepared to act on the other evidence as it stands even
though, if believed, it would be sufficient to sustain a conviction.
In such an event the Judge may call in aid the confession and use
it to lend assurance to the other evidence and thus fortify himself
in believing what without the aid of the confession he would not
be prepared to accept.
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11. Then, as regards its use in the corroboration of accomplices
and approvers. A co-accused who confesses is naturally an
accomplice and the danger of using thetestimony of one
accomplice to corroborate another has repeatedly been pointed
out. The danger is in no waylessened when the "evidence" is not
on oath and cannot be tested by cross-examination. Prudence will
dictate the same rule of caution in the case of a witness who
though not an accomplice is regarded by the Judge as having no
greater probative value. But all these are only rules of prudence.
So far as the law is concerned, a conviction can be based on the
uncorroborated testimony of an accomplice provided the Judge
has the rule of caution, which experience dictates, in mind and
gives reasons why he thinks it would be safe in a given case to
disregard it. Two of us had occasion to examine this recently in
Rameshwar v. State of Rajasthan. It follows that the testimony of
an accomplice can in law be used to corroborate another though it
ought not to be so used save in exceptional circumstances and for
reasons disclosed. As the Privy Council observe in Bhuboni Sahu
v. King:
"The tendency to include the innocent with the guilty is
peculiarly prevalent in India, as judges have noted on innumerable
occasions, and it is very difficult for the court to guard against the
danger ... The only real safeguard against the risk of condemning
the innocent with the guilty lies in insisting on independent
evidence which in some measure implicates such accused."
(emphasis supplied)
17. Testing the facts of the case at hand on the anvil of the
aforesaid dictum of the Supreme Court, this Court finds that the
only material evidence against the present petitioner is the memo
prepared under Section 27 of the Evidence Act by the co-accused
and certain bank transactions of the co-accused in which he has
sent certain amount to the present petitioner through NEFT. In
such facts and circumstances of the case, if the petitioner who is in
the business of manufacturing Gypsum Granules and Allied
products, and if in the legitimate business transaction the aforesaid
granules were purchased by the other accused persons and in turn
they use it in the manufacture of fake fertilizer, such act, in the
considered opinion of this Court, would not amount to an offence
for the present petitioner and he cannot be held guilty for the
aforesaid act of the co-accused persons in the absence of any other
material available on record to connect the petitioner with the
offence, as has already been observed above.
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18. Resultantly, the petition stands allowed and the charge sheet,
so far as it relates to the present petitioner is concerned, as also the
further proceedings initiated in the trial Court against him stands
quashed."
10. The Apex Court in the celebrated judgment of R.P. Kapur vs. State
of Punjab - (AIR) 1960 SC 866 has observed as under:-
"6. Before dealing with the merits of the appeal it is necessary to
consider the nature and scope of the inherent power of the High
Court under Section 561-A of the Code. The said section saves the
inherent power of the High Court to make such orders as may be
necessary to give effect to any order under this Code or to prevent
abuse of the process of any court or otherwise to secure the ends
of justice. There is no doubt that this inherent power cannot be
exercised in regard to matters specifically covered by the other
provisions of the Code. In the present case the Magistrate before
whom the police report has been filed under Section 173 of the
Code has yet not applied his mind to the merits of the said report
and it may be assumed in favour of the appellant that his request
for the quashing of the proceedings is not at the present stage
covered by any specific provision of the Code. It is well-
established that the inherent jurisdiction of the High Court can be
exercised to quash proceedings in a proper case either to prevent
the abuse of the process of any court or otherwise to secure the
ends of justice. Ordinarily criminal proceedings instituted against
an accused person must be tried under the provisions of the Code,
and the High Court would be reluctant to interfere with the said
proceedings at an interlocutory stage. It is not possible, desirable
or expedient to lay down any inflexible rule which would govern
the exercise of this inherent jurisdiction. However, we may
indicate some categories of cases where the inherent jurisdiction
can and should be exercised for quashing the proceedings. There
may be cases where it may be possible for the High Court to take
the view that the institution or continuance of criminal
proceedings against an accused person may amount to the abuse
of the process of the Court or that the quashing of the impugned
proceedings would secure the ends of justice. If the criminal
proceeding in question is in respect of an offence alleged to have
been committed by an accused person and it manifestly appears
that there is a legal bar against the institution or continuance of the
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said proceeding the High Court would be justified in quashing the
proceeding on that ground. Absence of the requisite sanction may,
for instance, furnish cases under this category. Cases may also
arise where the allegations in the first information report or the
complaint, even if they are taken at their face value and accepted
in their entirety, do not constitute the offence alleged; in such
cases no question of appreciating evidence arises; it is a matter
merely of looking at the complaint or the first information report
to decide whether the offence alleged is disclosed or not. In such
cases it would be legitimate for the High Court to hold that it
would be manifestly unjust to allow the process of the criminal
court to be issued against the accused person. A third category of
cases in which the inherent jurisdiction of the High Court can be
successfully invoked may also arise. In cases falling under this
category the allegations made against the accused person do
constitute offence alleged but there is either no legal evidence
adduced in support of the case or evidence adduced clearly or
manifestly fails to prove the charge. In dealing with this class of
cases it is important to bear in mind the distinction between a case
where there is no legal evidence or where there is evidence which
is manifestly and clearly inconsistent with the accusation made
and cases where there is legal evidence which on its appreciation
may or may not support the accusation in question. In exercising
its jurisdiction under Section 561-A the High Court would not
embark upon an enquiry as to whether the evidence in question is
reliable or not. That is the function of the trial Magistrate, and
ordinarily it would not be open to any party to invoke the High
Court's inherent jurisdiction and contend that on a reasonable
appreciation of the evidence the accusation made against the
accused would not be sustained. Broadly stated that is the nature
and scope of the inherent jurisdiction of the High Court under
Section 561-A in the matter of quashing criminal proceedings, and
that is the effect of the judicial decisions on the point (Vide : In Re
: Shripad G. Chandavarkar [AIR 1928 Bom 184] , Jagat Chandra
Mozumdar v. Queen Empress [(1899) ILR 26 Cal 786] , Shanker
Singh (Dr) v. State of Punjab [(1954) 56 Punjab LR 54] ,
Nripendra Bhusan Ray v. Gobind Bandhu Majumdar [AIR 1924
Cal 1018] and Ramanathan Chettiyar v. K. Sivarama Subrahmanya
Ayyar [ILR 47 Mad 722]"
[Emphasis supplied]
11. The Apex Court in State of Haryana vs. Bhajanlal 1992 Supp.(1)
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SCC 335 has reiterated that when allegations in the FIR do not constitute
congnizable offence and the allegations have been levelled with an oblique
motive to wreck vengeance, the proceedings deserve quashment.
12. In view of the aforesaid enunciation of law, the impugned FIR and
the ensued proceedings thereon, so far as they relate to the present petitioner
stand quashed, and the charge-sheet, dated 25-06-2024, filed in connection
with Crime No.450/2024 registered under sections 379, 467, 468, 471, 34
and 411 of the IPC and under Section 136 of the Electricity Act, so far it
relates to the present petitioner, also stands quashed. He stands discharged.
13. Ex-consequenti, the petition stands allowed.
(MANINDER S. BHATTI)
JUDGE
ac
