Rajanikanta Meheta vs The State

K.B. Panda, J.—The Petitioner Rajanikanta Meheta has filed two revision petitions in the following background: There was a dacoity in village Nuagaon under Govindapur Police Station on 16-4-1974 night in the house of one Sudhananda Misra. The Fast Information Report was lodged at the Police Station the next day and investigation proceeded. However, two and half years after, on 20-10-1976, eleven accused persons were charge-sheeted under Sections 395, 394, 115 and Section 412, Indian Penal Code and u/s 25 of the Arms Act. Out of those eleven persons, one is Had Das and the other Rajanikanta Meheta, the Petitioner. Be it stated here that the Petitioner was only charge-sheeted u/s 412, Indian Penal Code on the allegation that he had received the stolen ornaments from Hari Das and had paid Rs. 7, 000/-. This case was numbered as G.R. Case No. 658 of 1974.

Before the submission of the charge-sheet, Had Das, one of the accused in the case, filed a petition on 16-12-1974 stating that he would become an approve. The prayer was allowed and on 21-12-1974 his statement u/s 164, Code of Criminal Procedure was recorded. What is significant is that on that very day, after the statement was recorded, he was discharged from custody.

All the accused persons were committed to the Court of Session on 23-1-1978 and the Assistant Sessions Judge framed charge against the Petitioner u/s 412, Indian Penal Code. Criminal Revision No. 43 of 1978 is directed against the order of commitment of the Petitioner and he prays therein for quashing of the same, while Criminal Revision No. 119 of 1978 is directed against the framing of the charge u/s 412, Indian Penal Code by the Assistant Sessions Judge. Since both the matters arise out of the same G.R. Case, both were heard analogously and this order would dispose of both the criminal revisions.

Mr. Mukherjee, learned Counsel for the Petitioner urged that the sale evidence against the Petitioner is that of Hari Das who has stated that after the commission of the crime he had sold some of the ornaments to the Petitioner who paid him along with others Rs. 7.000/-. It may be stated here that no ornament has been recovered from the Petitioner and the sole evidence is the uncorroborated testimony of Hari Das. In fact, I find that in the lengthy 164 statement of Hari Das, there is only one sentence in Dara 15 that he along with others had sold the ornaments to the Petitioner who had paid him Rs. 7,000/-.

The point, therefore, now for consideration is if with this evidence, the commitment of the Petitioner is sustainable as also the framing of the charge u/s 412, Indian Penal Code by the Assistant Sessions Judge.

Some developments in the meanwhile need be stated. Hari Das after his discharge on 21-12-1974 has been involved in several other dacoity cases and has been arrested. It is on record, that he has been apprehended by the Police on 20-4-1978 and has been committed to the Court of Session on 7-8-1978 (See order dated 5-10-1978 of this Court in Cr. Rev. No, 43/78).

It was contended on behalf of the Petitioner that Hari Das was not examined in the lower Court as an approver. He was discharged on 21-12-1974 contrary to the provisions of Section 306, Sub-Section 4(b) of the new Code of Criminal Procedure corresponding to Section 337(3) of the Code of Criminal Procedure (old) and that as an approver he should have been examined in the committing Court. Further it was strongly urged that when Hari Das was not so examined as an approver in the committing Court, the commitment of the Petitioner is unsustainable. In support of this stand, a Full Bench decision of the Gujarat High Court reported in Kalu Khoda and Others Vs. The State, . was referred to. This decision has been followed by this Court in P. Apparao v. The State 33 (967) C.L.T 188, State Vs. Bauri Bissoi and Others, and State of Orissa v. Bidika Mangada and 22 Ors 38 (1972) C.L.T. 1108. it is unnecessary to dilate on this point in as much as the role of Hari Das in the present context has changed and he is no more an approver but in the shoes of a co-accused. Thus the point for consideration is what is the evidentiary value of this cryptic statement of Hari Das and whether that would be sufficient for a conviction if unrebutted so as to warrant the commitment as well as the framing of the charge.

The law regarding quashing of commitment proceedings has been laid down in State of Karnataka Vs. L. Muniswamy and Others, as follows:

The object of the provision which requires the Sessions Judge to record its reasons is to enable the superior Court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court, therefore, is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. In the exercise of the wholesome power u/s 482, the High Court is entitled to quash a proceeding If it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice requires that the proceeding ought to be quashed.

For the purpose of determining whether there is sufficient ground for proceeding against an accused the Court possesses, comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to the possible.

Judged from this standard, it has to be seen if the above statement of Hari Das if accepted in toto can form the basis of a conviction. In AIR 1949 257 (Privy Council) , it has been laid down that

But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. The confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a Conviction.

This statutory principle has been followed by Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar, and Mohd. Husain Umar Kochra etc. Vs. K.S. Dalipsinghji and Another etc., . Thus, in the instant case, the sole statement of the co-accused Hari Das cannot form the foundation of a lawful conviction. If this is wiped out, there is absolutely nothing on record to connect the present Petitioner with the alleged offence against him.

On the above analysis, pursuing the Petitioner further would be a futile attempt, the fore-gone conclusion being his acquittal. Thus, there is no meaning in prosecuting the Petitioner and particularly more so when it is asserted that on the basis of the statement of the accused Hari Das in two other sessions cases (one of the Additional Sessions Judge - S.T. No. 65 C/74 dated 1-9-1975 and the other of the Assistant Sessions Judge - S.T. 116 C of 1975 dated 27-3-1976), the Petitioner has been acquitted with serious strictures against the prosecution as would be evident from the judgment copies filed on behalf of the Petitioner.

In the result, the two criminal revisions are allowed, the commitment proceedings so far as the Petitioner is concerned before the committing Magistrate and framing of charge u/s 412, Indian Penal Code against the Petitioner by the Assistant Sessions Judge are hereby quashed. Send back the records for further action against the other accused persons.

Revisions allowed.