1. Shri R.K. Khare, the learned Govt. Advocate, raises a preliminary objection about the maintainability of this petition filed u/s 482 Cr.P.C., by placing reliance on the decision of the Apex Court in the case of Dharampal and Others v. Ramshri and Others reported in AIR 1993 SC 1361 = 1993 (1) MPWN 85.

2. Shri Kochar, the learned counsel for the petitioner, in reply submitted that though in the petition the correctness and propriety of the order dt. 28.8.92, passed by the IIIrd Addl. Sessions Judge, Raipur in Criminal Revision No. 87/92 and order dt. 19.2.92, passed by Judl. Magistrate, First Class, Gariyaband in Criminal Case No. 572/90, has been challenged, but, in fact now the petitioner is challenging the propriety of initiating and continuance of the proceedings against the petitioner, only on inadmissible evidence. Petitioner, Sushil Kumar Sharma, has filed this petition u/s 482 Cr.P.C. being aggrieved of the order passed by the Judicial Magistrate, First Class, Gariyaband taking cognizance against the petitioner for offence under sections 411 and 414 of the IPC. The above order passed by Judl. Magistrate, First Class, Gariyaband was affirmed by IIIrd Addl. Sessions Judge, Raipur in Cr. R. No. 87/92.

3. Police Rajim of district Raipur filed charge-sheet against Piluram and Kumud Alka Sona for the offences under sections 457 and 380 IPC. The above case was registered by Police Rajim on the report lodged by Smt. Kamlesh Tiwari, wife of K.C. Tiwari, on15.3.90. Though in this FIR suspicion has been expressed by the informant against the petitioner and few others, but, no specific allegations have been made against the petitioner.

4. Judicial Magistrate, First Class, Gariyaband, vide order dt. 17.2.93 took cognizance against the petitioner, in exercise of the jurisdiction u/s 190 Cr.P.C. From the above order of the Magistrate it appears that the material found sufficient by the Magistrate, for taking cognizance against the petitioner, consisted of only the mention of the petitioner's name in the memorandum prepared u/s 27 of the Evidence Act of co-accused Kumud Atka Sona. The learned IIIrd Addl. Sessions Judge, Raipur affirmed the above order passed by the Magistrate vide order dt. 28.8.92. From paras 3 & 6 of this order, it is found that the revisional Court considered the above mention of the petitioner's name in the memorandum of co-accused Kumud Atka Sona and the reference of petitioner's name in the FIR, wherein suspicion was expressed by the informant sufficient for taking cognizance against the petitioner.

5. Shri S.L. Kochar, the learned counsel for the petitioner, submitted that the evidence, relied upon by the Magistrate for taking cognizance against the petitioner and considered sufficient by the revisional Court for affirming the order of the Magistrate, is inadmissible in evidence and cannot be used against the petitioner, at the trial. Shri Kochar further submitted that the observation of the revisional Court in para 3 of the order that some stolen property was seized from the possession of the petitioner is contrary to the record of the case.

6. On perusing the FIR, lodged by Smt. Kamlesh Tiwari, it is found that in the report only a vague suspicion was expressed by the informant against four persons including the petitioner. Police Rajim, during the course of investigation and after recording the statement of witnesses, did not find the available material sufficient for filing charge-sheet against any of the four persons, mentioned in the FIR. The only piece of evidence considered sufficient by 'the Magistrate for taking cognizance against the petitioner is the mention of the petitioner's name in the memorandum of co-accused Kumud Atka Sona, recorded u/s 27 of the Evidence Act, to the effect that the petitioner joined Kumud Atka Sona in concealing the stolen property. Shri Khare, the learned Govt. Advocate, could not dispute the legal position, as contended by Shri Kochar the learned counsel for the pe