Shubham Sharma vs The State Of Madhya Pradesh on 8 February, 2022

[Cites 15, Cited by 15]

Madhya Pradesh High Court

Shubham Sharma vs The State Of Madhya Pradesh on 8 February, 2022

Bench: Vivek Agarwal

1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 8th OF FEBRUARY, 2022

MISC. CRIMINAL CASE No. 28164 of 2021

Between:-
SHUBHAM SHARMA S/O MAHESH SHARMA ,
AGED ABOUT 27 YEARS, OCCUPATION:
AGRICTULTURE H.NO. 191, GAUTAM NAGAR
MAHARAJPUR P.S. ADHARTAL, JABALPUR M.P.
(MADHYA PRADESH)

.....APPLICANT
(BY SHRI SIDDHARTH SHARMA, ADVOCATE )

AND

1. THE STATE OF MADHYA PRADESH THROUGH P.S.
SANJEEVNI NAGAR P.S. SANJEEVANI NAGAR
DISTRICT JABALPUR M.P. (MADHYA PRADESH)

2. MUKESH LAMBA S/O D.C.LAMBA , AGED ABOUT
40 YEARS, IN FORNT OF MIG 211 DHANWANTRI
NAGAR SANJEEVINI NAGAR JABALPUR (MADHYA
PRADESH)

.....RESPONDENTS
(BY SHRI PUSHPENDRA VERMA, PANEL LAWYER)
(Heard through Video Conferencing)
This application coming on for admission this day, the court passed the

following:
ORDER

This application under Section 482 of Cr.P.C. is filed for quashing of the charge-sheet arising out of FIR No.0318 dated 15.10.2020 registered at Police Station Sanjeevni Nagar, Jabalpur.

Learned counsel for the applicant submits that case crime No.318/2020 was registered at Police Station Sanjeevni Nagar, Jabalpur on 15.10.2020 for offences under Sections 363 & 365 of IPC. Allegation was on unknown persons that they had abducted son of the applicant namely Aditya Lamba and had called wife of the complainant i.e. mother of the abductee on her Mobile No.8770015939 from another Mobile No.8224890349. Thereafter, it has come on record that this abducted boy was murdered and in the final report charge-sheet is filed under Signature SAN Not Verified Sections 363, 365, 364(A), 302, 201, 120-B and 34 of IPC against the present Digitally signed by MOHD TABISH KHAN applicant and other co-accused persons.

Date: 2022.02.15 18:41:16 IST 2

Learned counsel for the applicant submits that the present applicant has been implicated on the basis of memorandum given by the co-accused persons in which they have admitted that they had hired a Swift Car from the present applicant. It is submitted that since there is no direct evidence against the present applicant and he has been made an accused only on the basis of memorandum of co-accused Rahul Vishwakarma @ Monu, no case is made out against the present applicant, therefore, prayer for quashing.

Shri Siddharth Sharma, submits that Swift Vehicle bearing No. MP 20 CJ 9292 is registered in the name of one Shubham Sharma and since co-accused had borrowed the vehicle and no incriminating article is seized from the present applicant, reflects that there is no involvement of the present applicant.

It is submitted that evidence in the form of memorandum under Section 27 of the Evidence Act is a very weak piece of evidence and only evidence available against the present applicant is that call detail records which is not sufficient to link the present applicant to the crime with the aid of Section 120-B of IPC.

Learned counsel for the applicant submits that main accused in his memorandum stated that they had borrowed the said Car from Shubham Sharma so to visit Paatan and they had used said Car for commission of offence. This piece of evidence is not sufficient in itself.

Learned counsel for the applicant has placed reliance on the judgment of this Court in case of Pradeep Sharma Vs. State of M.P. , whereby the petition was allowed and the proceedings in Sessions Trial No.37/2016 including first information report, charge sheet and the charges were quashed because the applicants were implicated only on the basis of memorandum of co-accused under Section 27 of the Evidence Act.

Shri Pushpendra Verma, learned Panel Lawyer for the respondent/State opposes the prayer for quashing of the charge-sheet and submits that this petition is pre-mature. At the time of framing of charges, applicant will have opportunity to present his case to show that he is innocent. It is further submitted that the memorandum under Section 27 of the Evidence Act cannot be said to be totally irrelevant because on the basis of said memorandum recovery of Swift Car is made 3 from the present applicant. It is further submitted that prima-facie ingredients of Section 120-B of IPC are made out from the record itself. It is further submitted that though the applicant has placed reliance on the judgment in case of Pradeep Sharma Vs. State of M.P. but has not bothered to mention even the citation.

In the body of the petition it is mentioned that the order of Coordinate Bench in Cr.R. No.1789/2020 is filed as Annexure P-4 whereas no such order is enclosed by the applicant as Annexure P-4. In fact as Annexure P-4, petitioner has enclosed copy of order passed by learned 2nd Additional Sessions Judge, Jabalpur in Sessions Trial No.117/2021, rejecting the bail application of the present applicant.

In this case, Court is required to examine scope of Section 27 of the Evidence Act. The principles of Section 27 are that if confession of the accused is supported by discovery of a fact, it may be presumed to be true and not to have been extracted.

In the case of Ramkishan Mithanlal Sharma and others Vs. State of Bombay, AIR 1955 SC 194 , it is held that Section 27 is based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and, accordingly, can be safely allowed to be given in evidence.

Object of Section 27 of the Evidence Act is to admit evidence which is relevant to the matter under enquiry, namely, the guilt of the accused and not to admit evidence which is not relevant to that matter.

It is evident from the call details of applicant Shubham Sharma available on page No.461 that there were as many 54 calls made between applicant- Shubham Sharma and co-accused Rahul Vishwakarma between 01/10/2020 to 15/10/2020. Out of which 21 were incoming calls and 26 were outgoing calls. SMS-in were 03 and SMS-out were four. Time start from 00.25.11 hours on 01/10/2020, end at 21.28.30 hours on 15/10/2020. Accused had abducted the deceased on 15.10.2020 between 5.00 and 6.00 p.m. using Swift Car belonging to present applicant bearing registration No.MP-20 CJ-9292. Therefore, prima facie it cannot be said that requirement of law laid down in the case of Ramkishan Mithanlal Sharma and 4 others (supra) are not made out.

In the case of State of Haryana & others Vs. Ch. Bhajanlal & others, AIR 1992 SC 604, it is held that Court should invoke its authority under Section 482 of Cr.P.C. for quashing in the rarest of rear case, sparingly and with circumspection. The purpose is that Court should not quash the proceedings unless and until requirements made out in the case of Ch. Bhajanlal and others (supra) are fulfilled.

Recently, Hon'ble Supreme Court in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, (2021) SCC Online SC 315 has reiterated the law laid down in the case of Ch. Bhajanlal and others (supra). Learned counsel for the applicant has failed to point out as to which of the circumstances laid down in the case of Ch. Bhajanlal and others (supra) will be applicable to the facts and circumstances of the present case.

In the case of Pankaj Kumar Vs. State of Maharashtra and others, (2008) 16 SCC 117, it is held that power under Section 482 of Cr.P.C. or Article 227 of the Constitution of India are very wide but should be exercised in appropriate cases, ex debito justitiae, to do real and substantial justice for the administration of which alone the courts exist. The powers have to be exercised sparingly, on the basis of material on record that allowing the proceedings to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed. This position is reiterated in the case of M.N. Ojha and others Vs. Alok Kumar Srivastava and another, (2009) 9 SCC 682. However, taking into consideration the fact that not only recovery is made from the present applicant but also there is data of call records showing close liaising between applicant and main conspirant Rahul Vishwakarma in the form of call details, this Court is of the view that this stage it is not a fit case to exercise inherent jurisdiction of this Court.

Accordingly, this petition fails and is hereby dismissed.

(VIVEK AGARWAL) 5 JUDGE Tabish

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