SHAKIR ALIAS BILLU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This misc. petition has been filed by the petitioners under section 482 Cr.P.C. against the order dated 21.6.2011 passed by Chief Judicial Magistrate Tonk whereby the application under section 306 Cr.P.C. filed by the SHO Police Station Purani Tonk in FIR No. 33/2011 for the offence under sections 302, 201, and 120 B IPC was allowed and accused Mujib S/o Sher Khan @ Habib was granted permission under section 306 Cr.P.C. to become as approver (sultani gawah). Brief facts of the case are that on 23.3.2011 a written report was lodged at Police Station, Purani Tonk by Manjur Ahmed @ Madhopuria S/o Ismail Khan wherein it was alleged that when he was going towards Naya Bus Stand from Stadium on his Riksha and reached at near Water Tank, there he saw that a person is lying dead in the Nali near the road. Thereafter he telephoned to Police. On the basis of the above report the Police registered FIR No. 33/11 for the offence under sections 302 and 201 IPC and investigation commenced. During the course of investigation the accused petitioners and accused Chandra Prakash S/o Shyam Lal and Muzib son of Shri Sher Khan were arrested and presently they are all in custody. Chandra Prakash Harijan S/o Shyam Lal has been released on bail by the Coordinate Bench of this court being juvenile.

(2.) On 21.5.2011, the Station House Officer Police Station Purani Tonk filed an application before the Chief Judicial Magistrate, Tonk with the prayer to allow accused Muzib S/o Sher Khan as approver and to appoint Magistrate to record his statement under section 164 Cr.P.C. The Chief Judicial Magistrate Tonk appointed the Additional Chief Judicial Magistrate Uniara to record the statement under Section 164 Cr.P.C. of accused Mujib. The statement of accused Muzib under Section 164 Cr.P.C. was recorded on 27.5.2011 by the Additional Chief Judicial Magistrate Uniara. on 6.6.2011, the Station House Officer, Police Station, Purani Tonk filed application before the Judicial Magistrate First Class District Tonk to allow accused Muzib S/o Sher Khan as approver. The Judicial Magistrate vide its order dated 9.6.2011 dismissed this application with the direction to submit the application before the competent court on the ground that there is no enquiry or trial is pending before him. The SHO filed fresh application before the Chief Judicial Magistrate Tonk on 10.6.2011 with the same prayer to declare accused Muzib as approver. The Chief Judicial Magistrate vide its order dated 21.6.2011 allowed the application filed by the SHO and declared accused Muzib S/o Sher Khan under Section 306 Cr.P.C. as approver (sultani gawah). The Judicial Magistrate Tonk on 28.6.2011 recorded the statement of Muzib son of Sherkha under Section 306(4) Cr.P.C.

(3.) Mr. Vimal Kumar Jain, learned counsel appearing for the petitioners has contended that the order passed by the Chief Judicial Magistrate is contrary to the provisions of Section 306 Cr.P.C. He has further contended that the trial court has not seen the fact that during the course of investigation upto the date there is no eye witness of the incident and thus there is no hope of success in the matter and that is why they have moved aforesaid application for declaring Muzib as approver. He has further drawn attention of this court that the approver Muzib in the statements recorded under section 164 Cr.P.C. and 306(4) Cr.P.C. has separated himself from committing any offence and has narrated himself as witness seeing the incident from 08-10 feet. Therefore such type of persons can not be declared under section 306 Cr.P.C. as an approver. Hence the judgment passed by the Chief Judicial Magistrate Tonk dated 21.6.2011 is against the provisions of section 306 Cr.P.C.