Madhya Pradesh High Court
Vijay Kumar vs The State Of Madhya Pradesh on 17 April, 2015
1
Mis. Cr. Case No.5892/2014 (Vijay Kumar Vs. State of MP & ors)
17042015
Shri Rajmani Bansal, counsel for the applicant.
Shri F.A.Shah, Panel Lawyer for the State/ respondent No.1.
Shri Yogesh Chaturvedi, counsel for the respondent No.3.
Heard the learned counsel for the parties on the question of
admission.
The applicant has moved the present petition under section
482 of Cr.P.C., to quash the FIR dated 27/03/2014 of crime
No.113/2014 registered at Police Station Khaniyadhana, District
Shivpuri and consequently, the charge sheet in S.T.No.29/2015
pending before the Court of Additional Sessions Judge, Pichhore.
Facts of the case, in short, are that, an FIR was lodged
against one Sanjay Yadav that he (Sanjay Yadav) alongwith unknown persons tried to assault the victim, Naval Kishore by firing with fire arms. However, Naval kishore could be saved. Thereafter, when Sanjya Yadav was arrested, he gave names of other culprits in his memorandum recorded under section 27 of the Evidence Act. One accused Udal Singh had confessed under section 27 of the Evidence Act as well as under section 164 of Cr.P.C., that some amount was given by the applicant, Vijay Kumar and, therefore, he and his companions attempted to commit murder of Naval Kishore. After due investigation, charge sheet was filed and the case was committed. At this stage, it was informed by the counsel for the respondent No.3 that the trial 2 Mis. Cr. Case No.5892/2014 (Vijay Kumar Vs. State of MP & ors) Court has framed charges against the applicant.
After considering the submissions of learned counsel for the parties and looking to the facts and circumstances of the case that learned counsel for the applicant has invited attention of this Court to various case laws to show that a petition under section 482 of Cr.P.C., is maintainable though charges have been framed by the trial Court. However, learned counsel for the respondent No.3 has submitted that nothing can be done under section 482 of Cr.P.C., to interfere in the proceedings of the trial Court. At present, it is not a matter of controversy because there are judgments of Apex Court in support and against on that point. However, the petition can be entertained under section 482 of Cr.P.C., on the basis of principle that if any innocent person is being harassed by filing of a charge sheet, powers under section 482 of Cr.P.C., may be invoked.
Learned counsel for the applicant has drawn attention of this Court on the ground that the evidence given by the co accused is not admissible and it cannot be relied upon. He has placed reliance upon the order passed by Single Bench of this Court in the case of "Prakash Singh Vs. State of M.P.," [1994 (II) MPWN SN 72] in which it is held that if there is evidence collected against the accused then the procedure under section 227 of Cr.P.C., can be followed and accused may be discharged. The learned counsel for the applicant has also relied upon the 3 Mis. Cr. Case No.5892/2014 (Vijay Kumar Vs. State of MP & ors) order passed by the Single Bench of this Court in case of "Devendra Kumar Vs. State of M.P., through P.S., Piplilyamandi" [2011 Cr.L.R. (M.P.) 241] in which the revisionary Court has held that if there is no evidence against the applicant, then he can be discharged.
Learned counsel for the applicant has also relied upon the Apex Court's judgment in the case of "Lohit Kaushal Vs. State of Haryana" [(2009) 17 SCC 106]. in which it is held that how the circumstantial evidence for an offence under section 120B of IPC may be considered.
Actually, the judgment by the Apex Court in the case of Lohit Kaushal (supra) is passed in an appeal filed through Special Leave Petition. At present, it is a case in which the charge sheet has been filed against the applicant and no conviction has been drawn. Under these circumstances, the evidence collected by the prosecution cannot be appreciated in a petition under section 482 of Cr.P.C., otherwise, prejudice would be caused before the trial Court.
However, it is settled principle of law that no innocent person should be prosecuted without any basis so that he may be harassed.
In the present case, if the evidence collected by the prosecution is considered in the light of the aforesaid principle, then the coaccused has given a statement under section 27 of 4 Mis. Cr. Case No.5892/2014 (Vijay Kumar Vs. State of MP & ors) the Evidence Act against the applicant. In consequence, the police could collect the call details of various calls, those took place between the applicant and the other coaccused persons. It is for the applicant to give an explanation as to why 05 calls were made by the applicant to the concerned coaccused at the time of his participation in the crime and such explanation can be considered at the time of defence evidence. Also witnesses had seen the coaccused persons at the house of the applicant soon before the incident, whereas the coaccused were not related to the applicant for any business transaction or otherwise. Similarly, the coaccused, Udal Singh gave a statement under section 164 of Cr.P.C., before the Magistrate. At present, the statement given by the coaccused, Udal Singh cannot be brushed aside which is a part of circumstantial evidence. In support of such circumstantial evidence, the call details were collected and from which it was found that the applicant has called some of the co accused persons and, therefore, it is for the applicant to prove that he has not made calls to the the other coaccused persons in relation to the conspiracy of the crime. It is for the applicant to establish that how he was not connected with the coaccused and the instant crime.
As discussed above, it is not necessary for this Court to appreciate the evidence, otherwise, prejudice would be caused to the trial Court during the trial. However, considering the 5 Mis. Cr. Case No.5892/2014 (Vijay Kumar Vs. State of MP & ors) aforesaid situation, it is not a case in which it can be said that no offence is made out against the applicant. It is not a good case in which inherent power under section 482 of Cr.P.C., of this Court can be invoked. The application filed under section 482 of Cr.P.C., by the applicant, Vijay Kumar is hereby dismissed at motion stage.
C.C. as per rules.
(N. K. Gupta) Judge b/