Chirag Dave vs State Of Rajasthan

The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. for quashing of FIR No.275/2017 dated 08.12.2017 registered at Police Station Bicchiwada, District Dungarpur for the offence under Sections 19, 54 and 57 of Rajasthan Excise Act, 1950 qua the petitioner.

Brief facts of the case as noticed by this Court are that an FIR was lodged on 08.12.2017 by the complainant-SHO, Police Station Bicchiwada, District Dungarpur alleging therein that on 07.12.2017, during surveillance, he received an information that at Mauja Sisod, Garduna Road, there is a non-operational factory, belonging to Prakash Kalal resident of Bhumatawada presently resident of Kherwada, District Udaipur, and in the said factory, certain persons namely Sunil Darji, Mansingh, Bharat Dangi, Vinod Sindhi, Chirag Pancholi were storing unauthorized English wines in huge quantity. Thereafter, in pursuance of Parcha Kayam prepared under Section 47 of the Rajasthan Excise Act, a team was constituted and search was conducted, whereupon one person, namely, Rajendra was arrested and he was found in possession of huge quantity of illicit English wine and beer i.e. 2844 bottles. As per the pleadings made in this petition, the name of the present petitioner was not there in the FIR, as the name of person arrayed as accused was Chirag Pancholi and not Chirag Dave, the present petitioner.

The petitioner preferred another petition bearing S.B. Criminal Misc. Petition No.2494/2018, which was decided on 25.09.2018 wherein certain protection against arrest was extended to the petitioner and directions in regard to the investigation were given. Thereafter, upon receiving the notice of arrest, the petitioner again approached this Court by filing the present petition.

Learned counsel for the petitioner submits that the petitioner's name does not find place in any of the investigation conducted by made by the State-respondent, and the petitioner is in no way connected with the alleged crime.

Learned counsel for the petitioner further states that on a bare consideration of the facts, the investigating officer could not find anything against the present petitioner.

Learned Public Prosecutor has however, shown to this Court the case diary of the case, and submits that the same reflects that throughout the investigation, the petitioner's name does not find place at any juncture and neither the confiscation nor the storage or supply of the illicit liquor in question has been attributed to the present petitioner. However, learned Public Prosecutor has stated that during course of the fourth stage of interrogation, co-accused, namely, Sunil Darji and Chirag Pancholi have named the present petitioner as supplier of the consignment, which is reflected in the interrogation note as well.

Learned counsel for the petitioner, in his rejoinder arguments, submitted that since the petitioner's name was not there in the FIR and no material has been made available on record against the present petitioner, therefore, in such circumstances, naming of the present petitioner by the co-accused cannot be used to array the petitioner as a co-accused.

Learned counsel for the petitioner, to substantiate his submissions, has relied upon the judgment rendered by Hon'ble Orissa High Court at Cuttack in Sunil Pandey & Ors. Vs. State of Orissa reported in 2018 0 Supreme (Ori) 42, the relevant portion of which reads as under:

"8. Thus the sole material available on record against the petitioners is the confessional of statement of co-accused Satendra Pandey before police.

Section 25 of the Indian Evidence Act, 1872 enumerates that no confession made to a police officer shall be proved as against the person accused of any offence. The reason behind declaring such confession to be inadmissible is to avoid the danger of admitting false confessional statements obtained by coercion, torture or ill-treatment. A confessional statement made by any person whilst is in the custody of a police officer cannot be proved against him unless it is made in the immediate presence of a Magistrate in view of Section 26 of the Evidence Act. A confession can only be acted upon whether it is extrajudicial or judicial, if it is made voluntarily which obviously means out of the free will and without any coercion, fear of threat of any harm, promise or any inducement or any hope of reward. Section 24 of the Evidence Act clearly enumerates that confession made by an accused by inducement, threat or promise is irrelevant in a criminal proceeding. Section 30 of the Evidence Act indicates that the confession of co-accused can be considered when he is jointly tried with the other accused and he makes a statement incriminating himself along with the other accused.

In case of Hari Charan Kurmi -Vrs.- State of Bihar reported in A.I.R. 1964 S.C. 1184, it is held that a confession of an accused cannot be treated as substantive evidence against a co-accused person. The statements contained in the confessions of the co-accused persons stand on a different footing. In cases where such confessions are relied upon by the prosecution against an accused, the Court cannot begin with the examination of the said statements. The stage to consider the said confessional statements arrives only after the other evidence is considered and found to be satisfactory.

In case of Biraja Panda -Vrs.- State of Orissa reported in 1996 (I) Orissa Law Reviews 85, it is held that the test as to whether the confession of an accused can be used against his co-accused is whether the person making such confession could be convicted on that confession of the crime with which he and his co-accused were charged. The confession cannot take the place of evidence as defined in section 3 of the Evidence Act and it cannot be added to supplement the evidence otherwise insufficient. The expression 'may take into consideration' in section 30 of the Evidence Act makes it abundantly clear that where the evidence against the co-accused is sufficient to base conviction, the confessional statement of co-accused may be treated as a corroboration for believing that evidence.

In case of Satyajit Das -Vrs.- State of Orissa reported in (2001) 21 Orissa Criminal Reports 440, it is held that confession of co-accused cannot be treated as substantive evidence in dealing with a case against the accused and the Court must start with other evidence adduced by the prosecution and after forming its opinion with regard to the guilt and effect of the said evidence can turn to the confession in order to get assurance to the conclusion of guilt, if the judicial mind is about to reach on the said other evidence.

In case of Satyanarayan Nayak -Vrs.- State of Orissa reported in (1988) 1 Orissa Criminal Reports 546, it is held that the statement of co-accused in course of investigation is not the evidence in the case being hit by section 162 of Cr.P.C. Considering the factual aspect of the case, it was further held in that case that since there is no prima facie material to connect the petitioner with the commission of the offences in question excepting the statements of the co-accused persons made to the investigating officer, the materials on record cannot be the foundation of the impugned order of cognizance.

In view of the available materials on record, when except the confessional statement of co-accused Satendra Pandey before police, there is no other material against the petitioners, I am inclined to accept the prayer made in this application under section 482 of Cr.P.C. inasmuch as continuance of the proceeding against the petitioners basing on such material would amount abuse of process.

Accordingly, the CRLMC application is allowed. The impugned order dated 04.06.1998 passed by the learned S.D.J.M., Balasore in taking cognizance of offence under sections 407/34 of the Indian Penal Code and issuance of process so far as the petitioners are concerned, stand quashed. This order shall not affect the continuance of the criminal proceeding in any manner so far as the other accused persons are concerned."

Learned counsel for the petitioner, in his rejoinder argument, further submitted that Section 25 of the Indian Evidence Act, 1872 enumerates that no confession made to the police shall be construed as proved as against a person accused of any offence, and thereafter, Section 30 of the Indian Evidence Act indicates that the confession of co-accused can be considered only when he is jointly tried with other accused, and also, if other circumstantial evidence leads to the confirmation of such statement.

It is contended by learned counsel for the petitioner that Section 3 of the Indian Evidence Act clearly reflects that a confession of the co-accused cannot be added to supplement the evidence otherwise insufficient.

After hearing learned counsel for the parties as well as perusing the material available on record alongwith the precedent law cited at the Bar, this Court finds that in the complete investigation process, no allegation or offence has been found to be made out against the present petitioner. The investigating officer has miserably failed to connect the present petitioner with the alleged offence as the petitioner has neither been named in the FIR nor has been found to be connected, on any count, with the alleged crime. The case diary also does not reflect any independent witness against the petitioner, which would bring him under the scanner of the criminal trial.

This Court also notes the precedent law cited by learned counsel for the petitioner and has carefully perused Sections 3, 25, 26 & 30 of the Indian Evidence Act alongwith the submission so made pertaining thereto by learned counsel for the petitioner. Thus, this Court is of the opinion that unless there was a corroborative and independent evidence against the petitioner, which would have been fortified by the evidence of the other co-accused, continuance of the investigation against the petitioner would be futile.

This Court also takes note of the fact that in first three stages of interrogation, the present petitioner's name did not occur, and it was only during the fourth stage of interrogation that co-accused Sunil Darji and Chirag Pancholi named the present petitioner as a supplier of the illicit liquor.

In light of the aforesaid observations and the material available on record as also the fact that except the statement of Sunil Darji and Chirag Pancholi, there is no material as against the present petitioner, this Court is inclined to accept the prayer made in this petition inasmuch as continuance of the present proceedings against the petitioner, on the basis of such material, would be nothing but an abuse of the process of law.

Consequently, the present petition is allowed and the FIR No.275/2017 dated 08.12.2017 registered at Police Station Bicchiwada, District Dungarpur alongwith entire proceedings and investigation in pursuance thereof, is hereby quashed qua the present petitioner.