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2017 Supreme(Chh) 600
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Rajendra Chandra Singh Samant, J.
Rakesh Jaiswal S/o. R. P. Jaiswal - Petitioner
Versus
State of Chhattisgarh & Ors. - Respondents
CR.R. Nos. 840, 956 & 1053 of 2016
Decided On : 25-07-2017
Advocate Appeared:
For the Petitioner: Mr. Kishore Bhaduri, Mr. Dharmesh Shrivastava, Mr. Pawan Kesharwani
For the Respondent: Mr. Ashish Shukla, Mr. Govind Dewangan
For the Objector : Mr. T.K. Jha
Headnote:
Indian Penal Code, 1860 – Sections 302, 394, 201 – Evidence Act – Sections 30, 27 – Code of Criminal Procedure, 1973 – Section 164, 161, 397, 321 – Withdrawal of the prosecution – Cr.R. are petitions under Section 397 of Cr.P.C. challenging the order, passed by the 9th Additional Sessions Judge, Bilaspur by which the application under Section 321 of Cr.P.C. for withdrawal of the prosecution against petitioner/accused - Rakesh Jaiswal by the State was dismissed. – Held, It is apparently clear that nothing has been stated by any of the witnesses regarding involvement of the petitioner in causing death of deceased - Jawahar Dadsena by conspiracy or by any overt or covert act. – Deceased intended to visit petitioner on the date of incident and statement of one witness Shanti Bai that deceased came to visit the petitioner in afternoon on the date of incident by itself is not sufficient to involve him in the case. – Statement of co-accused person in their memorandum U/s. 27 of Evidence Act, can not be taken up as confession U/s. 30 of the Evidence Act, which may be considered by the Court against a co-accused person because that has to be specifically a confession permissible under law, i.e. a confession recorded u/s. 164 of Cr.P.C. and that is not the case here. – Hence after perusal of all the material on record and considering the submission of the State as well as that there is no evidence against the petitioner for prosecution, for which the withdrawal of prosecution was sought from the trial Court, hence this revision petition appears to have substance and deserves to be allowed. – Petitions Disposed off.
1. Cr.R. No.840/2016 and Cr.R. No.1053/2016 are petitions under Section 397 of Cr.P.C. challenging the order dated 30.08.2016, passed by the 9th Additional Sessions Judge, Bilaspur by which the application under Section 321 of Cr.P.C. for withdrawal of the prosecution against petitioner/accused - Rakesh Jaiswal by the State was dismissed.
2. Criminal Revision No.956/2016 has been filed by the petitioner – Rakesh Jaiswal, challenging the order dated 27.09.2016, passed by the 9th Additional Sessions Judge, Bilaspur, whereby the charges under Section 302/34, 120-B, 201 of Indian Penal Code has been framed against the petitioner – Rakesh Jaiswal.
3. It is submitted by the counsel for the petitioner that petitioner has been charge-sheeted and prosecuted in Crime No.152/2001, registered at Police Station – Kota, District – Bilaspur for the offence punishable under Section 302 read with Section 394, 201 of Indian Penal Code without their being any evidence against him.
4. On the basis of opinion given by the prosecutor, an application under Section 321 of Cr.P.C. was moved by respondent No.1 for withdrawal of prosecution, which has been rejected by the impugned order dated 30.08.2016.
5. It is submitted by counsel for the petitioner in Cr.R. No.840/2016 and Cr.R. No.956/2016 that deceased- Jawahar Dadsena started from Lormi to reach his place of residence at Bilaspur on 19th May, 2001 on motor cycle bearing registration No. M.P.-26-KC-2937. He did not reach Bilaspur and a missing report was lodged in Police Station – Kota. On 23rd May, 2001, a decomposed body was found near Jogipur in the field, which was identified by one Latel Ram as that of deceased on the basis of the articles found with dead body. Autopsy could not reveal the mode or cause of death because decomposition of body was in advanced stage, being found late about 7 to 8 days from the date of incident. Statement of as many as 20 witnesses were recorded under Section 161 of Cr.P.C. by police. On reading of statement, it is very clear that there is totally no evidence against the petitioner even by way of suspicion, but motor cycle of the deceased could not be found. It is submitted by counsel for the petitioner that Section 321 of Cr.P.C. provides that case shall be withdrawn by the prosecution with the consent of the Court. It is the duty of the learned Judge of trial Court to grant or refuse consent judiciously on the basis of material present on record. The Court below has mechanically passed the order of rejection, hence prayed that present revision petitions may be allowed with grant of permission to withdraw the criminal case against the petitioner. In the alternative it is prayed that impugned order framing charge against the petitioner may be set-aside.
6. Counsel for the petitioner – Rakesh Jaiswal places reliance on the judgment passed by the Hon'ble Supreme Court in case of The State of Bihar Vs. Ram Naresh Pandey, reported in AIR 1957 SC 389, Rajender Kumar Jain Vs. State Through Special Police Establishment and Ors. reported in (1980) 3 SCC 435, Sheonandan Paswan Vs. State of Bihar and Others reported in (1987) 1 SCC 288, Vijay Kumar Baldev Mishra @ Sharma Vs. State of Maharastra reported in AIR 2008 SC 961. The counsel further placed his reliance in the judgment dated 02.07.2015, passed by the Coordinate Bench of this Court in Cr.M.P. No.849/2013, Dr. Shakrajeet Nayak & Ors. Vs. State of Chhattisgarh and other connected matters. The counsel has also relied on the case law reported in 2016 (3) C.G.L.J. Ramesh Kumar Sharma Vs. State of C.G. & Ors., wherein the same principles has been reiterated. Reliance has also been placed in the judgment passed by the Hon'ble Supreme Court in case of Baliram Murlidhar Vs. State of Andhra Pradesh, reported in (2014) 10 SCC 380.
7. Counsel for the State has submitted arguments, which are not opposed to the submission made by the petitioner – Rakesh Jaiswal in Cr.R. No.840/2016 and Cr.R. No.956/2016 and in support of the cr
