SHAKIR CHACHA Vs. STATE OF M P

JUDGEMENT

(1.) BY this revision, the petitioner has challenged order dated 04/11/08 passed by the 13th ASJ, Indore framing charges under section 307/34 and 120-B of the IPC against the petitioner.

(2.) PRIMARILY, the contention of the Counsel for the petitioner was that the impugned order is contrary to the provisions of law, since the accused petitioner has been charged on the basis of inadmissible evidence i. e. confessional statements given in police custody by the co-accused. Stating that the Learned asj, Indore had no other material except the statement made under section 161 of the Cr. P. C by the witnesses before the police regarding the confession made by co-accused Ritesh and Gabbu at the police station and when such statements are reduced writing, they can be used only for the purpose of contradiction or re-examination that also only with the permission of the Court, Counsel urged that the charges clearly indicate that the petitioner accused had been falsely implicated by the co-accused since, it was alleged that the petitioner was the master mind behind the scheme of criminal conspiracy and he had offered Rs. 10,000/-to the accused to assault complainant Kailash and it was only consequent to the confession by both the co-accused Ritesh and Gabbu during investigation before the police that consequently, the present accused was charged under section 307/34. and section 120-B of the IPC.

(3.) COUNSEL for the petitioner placed his reliance on Rameshwar Singh Vs. State of Jammu Kashmir [air 1972 SC 102], whereby the Apex Court held that the contents of the statements of witnesses recorded under section 161 of the cr. P. C during the course of the investigation cannot be taken into consideration for finding corroboration of the statements made in Court since there was apparently a bar under section 162 of the Cr. P. C. Further relying on Mahabir Mandal and others Vs. The State of Bihar [air 1972 SC 1331] Counsel stated that the Apex Court held that the bar of inadmissibility created by section 162 operates not only on statements of witnesses but also on statements of the accused made to the police officer as has been held way back by the Privy Counsel in AIR 1939 page-47. Further Counsel relied on Kali Ram Vs. State of Himachal Pradesh [ AIR 1973 SC 2773] whereby the Apex Court while discussing the restriction placed by section 162 of the Cr. P C on the use of statement made during the course of investigation and the Apex Court had held that the prohibition contained in the section relates to all statements made during the course of an investigation which cannot be set at naught by the police officer not himself recording, the statements of a person but having it in the form of communication addressed by the person concerned to the police officer.