Rajasthan High Court - Jodhpur

Vishnupal vs State Of Rajasthan on 29 November, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Revision Petition No. 546/2022

Vishnupal S/o Sh. Indrapal, Aged About 35 Years, R/o Chak 1 KYD, Post 365 Head, Tehsil Rawla, District Sri Ganganagar (Raj.)

----Petitioner Versus State Of Rajasthan, Through P.P

----Respondent

For Petitioner : Mr. D.S. Gharsana For Respondent : Mr. M.A. Siddiqui, G.A. -cum- A.A.G.

with Mr. Arun Kumar, P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 25/11/2022 Pronounced on 29/11/2022

1. This Criminal Revision Petition under Section 397/401 Cr.P.C.

has been preferred praying for the following reliefs:-

"It is therefore most respectfully prayed that this Criminal Revision Petition filed by the petitioner may kindly be allowed and order passed by Learned Additional District and Sessions Judge Pokran, District Jaisalmer dated 08.04.2022, by which the application filed by the prosecuting u/s 169 Cr.P.C. was rejected, may kindly be set aside.

Any other order that may be deemed proper in the fact and circumstance of the case may kindly be passed in favour of the petitioner."

2. Brief facts of the case, as placed before this Court, by the

learned counsel for the petitioner are that on 15.05.2011, the

police authorities of the concerned Police Station, Pokhran, were

on routine patrolling and checking duty on URMUL Circle, and at

about 07:30 a.m. a red coloured car, bearing registration no. RJ

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31 CA 2534, being driven by the present petitioner (Vishnupal),

was stopped by the concerned police authorities and upon

checking, 250 gms. of opium was recovered from the dickey of the

said car; upon which the present petitioner was taken into police

custody and an F.I.R., bearing no. 99/2011 was registered for the

offences under Section 8/18 N.D.P.S. Act against the petitioner.

2.1 During investigation, it was found that the petitioner was not

connected with the alleged contraband and that it was the main

accused-Santosh Kumar, who implanted the alleged contraband in

the dickey of the car to implicate the petitioner, owing to personal

animosity and enmity. That the concerned police authorities filed a

charge-sheet only against the main accused-Santosh Kumar for

the offence under Section 8/18 N.D.P.S. and did not file any

charge-sheet against the present petitioner.

3. Learned counsel for the petitioner submitted that in the

aforesaid factual backdrop, on 12.01.2012, the concerned police

authorities preferred an application under Section 169 Cr.P.C.

before the learned Trial Court, which was kept pending for an

entire decade, and after the span of such a long time, the

Additional District and Sessions Judge, Pokhran, vide the

impugned order dated 08.04.2022 rejected the said application

and the matter was fixed for framing of charges.

4. Learned counsel for the petitioner assailed the impugned

order on the ground that it is an admitted fact that the present

petitioner was not the owner of the vehicle in question, from

which the contraband in question was recovered, but the present

petitioner was an employee of the main accused-Santosh Kumar,

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and that the said vital aspect was duly appreciated by the

concerned police authorities, during the course of investigation,

and that the concerned police authorities subsequently filed a

conclusion in the matter, clearing the present petitioner of the

allegations levelled against him.

5. Learned counsel for the petitioner further submitted that the

call details of the main accused-Santosh Kumar, reveals that it

was he, who informed the Police Constable-Subhash Chand, with

regard to the vehicle number and the contraband in question,

which in turn lead to the search and seizure from the vehicle in

question; the same also reveals the intention of the main accused

to falsely frame and implicate the present petitioner.

6. Learned counsel for the petitioner further submitted that the

learned Court below grossly erred in not appreciating the same,

and thus, erred in law, in rejecting the application in question,

vide the impugned order.

7. Learned counsel for the petitioner sought to fortify his

submissions by placing reliance on the judgment rendered by a

Coordinate Bench of this Hon'ble Court in the case of Bhakar

Ram v. State of Rajasthan (S.B. Criminal Revision No.

430/2017, decided on 03.11.2017).

8. Learned Government Advocate - cum - Additional Advocate

General appearing with the learned Public Prosecutor, for the

respondent-State, submitted that one Amit and the main accused-

Santosh Kumar run a business together, and that owing to discord

between them and Amit, finding that due to cheating on the part

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of the main accused-Santosh Kumar, Amit handed over the charge

of handling the cash counter to the present petitioner-Vishnupal.

8.1 It was further submitted that one day prior to the occurrence

of the incident in question, on 14.05.2011, Amit and Vishnupal

took the car in question for the purpose of its service and

maintenance, which was returned back in the evening at about

05:00-6:00 p.m. after which the main accused-Santosh Kumar

offered to take Vishnupal and his family to a temple.

8.2 It was also submitted that a bare perusal of the statements

of Amit Kumar, Raman, Dharmpal and Krishan Kumar would reveal

that on the day of the incident in question, Vishnupal was taking

Amit's wife, in the car, to Jodhpur, and that while the luggage was

being loaded in the car in question, by Amit and Vishnupal, the

main accused-Santosh Kumar was nearby; thereby giving him

ample opportunity to plant the contraband in question in the said

car.

8.3 It was further pointed out that it was the main accused-

Santosh Kumar, who called the police constable-Subhash Kumar at

P.S. Pokhran from his registered mobile phone number and

informed him that a stolen car was travelling towards Jodhpur

from Jaisalmer, in which there were 2/3 passengers who were

residents of Hanumangarh. Upon receipt of such information, the

Police Constable-Subhash Kumar informed the higher authorities

and a nakabandi was put in place. That, the main accused-

Santosh Kumar again made a phone call and inquired about the

car in question from the concerned constable and informed him

that the car in question bore the registration number RJ-31-CA-

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2534 and that in the dickey of the car in question, some

suspicious material would be found.

8.4 It was also submitted that when the role of the main

accused-Santosh Kumar was realized by the concerned police

authorities, an attempt to arrest him was made but he was found

to be absconding from his residence.

8.5 It was also submitted that an anticipatory bail on his behalf

was filed before the learned District and Sessions Judge, Jodhpur

Metropolitan, which came to be allowed. That as a condition of

such bail, the main accused-Santosh Kumar appeared before the

concerned investigating officer and during the course of

interrogation, he admitted his guilt.

8.6 It was thus submitted that the owing to the above, no prima

facie case was found to be made out against the present petitioner

with regard to the crime in question and therefore, the concerned

investigating agency filed an application under Section 169 Cr.P.C.

with regard to the present petitioner, and accordingly filed a

charge-sheet for the offence under Section 8/18 N.D.P.S. Act,

1985 against the main accused-Santosh Kumar.

9. Heard learned counsel for both parties as well as perused the

record of the case and the case law cited at the Bar.

10. This Court observes that the learned Court below, in

rejecting the application preferred by the concerned investigating

authority under Section 169 Cr.P.C., vide the impugned order

dated 08.04.2022, rightly observed that Section 169 Cr.P.C.

applies when it appears to the concerned officer-in-charge that

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there is insufficient evidence or a lack of sufficient evidence to

justify the forwarding of the name of an accused person(s) to the

concerned Magistrate, then such accused, if in custody, may be

released on execution of a bond, with or without sureties, and that

the said Section would only operate during the investigation

period, and not after the names of the accused person(s) have

already been forwarded to the concerned Magistrate.

For the sake of brevity, the Section 169 Cr.P.C. is reproduced

hereinunder:-

"169. Release of accused when evidence deficient.

If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial."

11. This Court further observes, that the learned Trial Court,

looking into the present factual matrix of the case rightly held that

the application preferred by the concerned investigating agency

under Section 169 Cr.P.C. is not maintainable, and the said Section

ceased to operate once such names of the accused person(s)

came to be forwarded to the concerned Magistrate. The present

petitioner was thus remanded to judicial custody and was no

longer in police custody when such application came to be

preferred before the learned Court below.

12. This Court also observes that the case law cited on behalf of

the petitioner does not render any assistance to his case.

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