Excerpt
The present case was filed under Section 397 of the Code of Criminal Procedure against the order passed by the court in the case State v. Silak Ram @ Dhillu & Ors where the petitioner was charged against offences punishable under Section 392/120B of the Indian Penal Code, 1860.
Facts
The case was regarding the robbery of a cash amount of ₹3 lacks and a mobile phone at the point of a pistol from the caller by two men on a motorcycle at Nangal road, Bawana. One of the co-accused Silak Ram was arrested and based on a disclosure statement he revealed that he was employed as a driver with ACF company wherein he used to bring cash from the customers of the company after delivering the goods. He confessed that he conspired with his brother Jora Singh to stage a fake robbery of the money that belongs to his employer. While returning from Panipat, Jora Singh and one Mukesh came on a motorcycle and committed the robbery. Jora Singh was arrested under section 25/54/59 Arms Act for possessing a country-made pistol and confessed his involvement in the robbery in question.
Arguments Before the Court
The counsel for the Petitioner assailed the order contending that only incriminating substance which the prosecution could bring on record against the Petitioner is the disclosure statement of the Petitioner and the disclosure statement of the co-accused Silak Ram did not lead to any recovery or discovery of fact, both the statements were immaterial and should not have been taken into consideration. He also contended that the fingerprints of the Petitioner had not matched with the chance prints lifted from the spot. He argued that since the trial court fell in error in observing that there is sufficient material on record to frame charge for the offence under Section 392/120B IPC against the petitioner, the impugned orders to be set aside and the Petitioner be discharged of the offences in the case.
The Counsel for the state, on the other hand, submitted the view of disclosure statements of the co-accused Silak Ram and the Petitioner coupled with the recovery of firearms used in the commission of robbery from the petitioner, Learned. Metropolitan Magistrate rightly observed that there is sufficient material on record to frame the charges for the offence under Section 392/120B IPC against the Petitioner. He further argued that there was no illegality in the order passed by the Magistrate.
Court’s Observation
Section 240 of CrPC provides that the charge can be framed in a warrant trial case if the Magistrate is of the view that there is ground for presuming that the accused has committed an offence. Section 239 of CrPC provides that an accused can be discharged if the Magistrate considers the charge against the accused to be groundless. Based on the principles laid down by the Apex court, the present court observed that the Learned Judge while considering the question of framing the charges has the undoubted power to weigh and sift the evidence for the purpose of finding out whether or not a prima facie case against the accused has been made out. The main issue before the court was whether the evidence on which the prosecution relying is admissible or not. The court observed that the petitioner was not named in the FIR. His role surfaced solely based on a disclosure statement made by the co-accused Silak Ram. Based on a precedent case the court stated that the confession of co-accused does not come within the definition of ‘evidence’ contained in Section 3 of the Evidence Act as such confession is not recorded on oath, nor it was given in presence of the accused, and nor it can be tested by cross-examination.
Court’s Decision
The Court concluded that the Test Identification Parade (TIP) of the petitioner through the said eye witness was not arranged by the investigating agency. The witness had categorically stated in his statement dated 09.05.2011 recorded under Section 161 of CrPC that he was not in the position to identify the robbers because their faces were covered. The Court stated that the view taken by the Magistrate was completely erroneous as the eye witness has already expressed his inability to identify the robbers. In the absence of independent incriminating evidence available on record against the Petitioner, the charges could not be framed against him merely on the basis of the disclosure statement of the co-accused Silak Ram. The Petitioner was thus discharged from all the offences charged against him.
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