JEETA RAM Vs. STATE

JUDGEMENT

(1.) THIS is a revision application by one Jeetaram. He was convicted by the learned Munsiff Magistrate, Pali, on his plea of guilty on three counts namely, under Sections 420, 465 and 468 Indian Penal Code. He was awarded one year's rigorous imprisonment on each count and a fine of Rs. 1,100/ - in addition for the offence under Section 468 Indian Penal Code, in defaulted. It one month's further rigorous imprisonment. All the three substantive sentences were ordered to run concurrently. He appealed to the court of learned Sessions Judge, Pali against his conviction and sentences, but without success.

(2.) THE prosecution case, in brief, was that the accused had approached the complainant Hastimal Kothari of Pali on 22 -1 -70 with a lottery ticket bearing No. B -155027 of the State Lottery of Jammu & Kashmir and told him that in the third draw of the Lottery on 11 -1 -70. the second prize of rupees one lac had been declared on the aforesaid ticket. The accused requested Hastimal to advance him a lean of Fs. 6000/ - on the security of the ticket in question. There was then a talk about the collection of the amount of rupees one lac from the Government of Jammu and Kashmir. It was suggested by the accused that a duly authorised prison be sent to Srinagar for collecting the amount and cut of the amount when collected the expenses of going to Srinagar as also the mount of the Joan be recovered by Hastimal. Hastimal's nephew Shri Lalcl and was an Advocate at Pali and it was decided that Shri Lalchand and one Kherra who enjoyed the confidence of the accused should proceed to Siinagar for the purpose of collection. Hastimal had handed over the ticket together with the newspaper cutting showing the declaration of the result of the draw in an envelope and on the outer side of the envelope accused acknowledged the receipt of Rs. 6000/ -, A power of attorney in favour of Lalchand was also given by the accused. Shri Lalchand and Khema then went to Srinagar and there contracted the Director of the State Lotteries. They produced the ticket after filling in a certain form of declaration. As the Director had already received a ticket bearing the same number, he suspected the genuineness of the ticket produced by Shri Lalchand. Eventually the Director of Lotteries reported the matter with the Kashmir police and a case was registered against Lalchand and Khema. On coming to know of what had been done to himself and his nephew by the accused, Hastimal lodged a complaint in the court of learned Munsiff Magistrate, Pali. The learned Munsiff Magistrate forwarded the so -called complaint under Section 156(3) Cr.P.C., to the police for investigations. The police then registered a case under Sections 420, 465 and 468 Indian Penal Code against the accused and investigated the matter. On 3 -4 -70, the challan was put up against the accused. The statement of the accused was recorded under Section 251A(3) Criminal Procedure Code and then the learned Magistrate framed charges against the accused for all the three counts which the accused pleaded guilty and learned Magistrate accordingly convicted and sentenced him as aforesaid. The learned Sessions Judge while dismissing the appeal observed thus in his judgment:

(3.) I have gone through the statements of Hastimal and Lalchand recorded by the police under Section 161 Criminal Procedure Code. Sub -section (2) of Section 251A Criminal Procedure Code, inter alia , lays down that if upon consideration of all the documents and making such examination, if any, of the accused as the Magistrate thinks necessary, if the Magistrate considers the charge against the accused to be groundless, he shall discharge him Sub -section (3) provides that if, upon such document being considered, such examination, if any, being made the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XXI, which such Magistrate is competent to try, he shall frame in writing a charge against the accused. The examination of the accused under Section 251 A Criminal Procedure Code cannot be equated with the examination of an accused under Section 342 Criminal Procedure Code, where the learned Magistrate is required to place the entire evidence properly before the accused to enable him to explain the same. The statements recorded by the police under Section 161 Criminal Procedure Code are not evidence in the case. Section 162 Criminal Procedure Code lays down that no statement made by any person to a police officer in the course of an investigation be used for any purpose save as hereinafter provided at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. The exception is indicated in the section itself in the proviso which lays down that if any witness is called for the prosecution, the statement may be used by the accused for cross -examination the witness and with the permission of the court by the prosecution to contradict such witness in the manner provided by sect on 145 of the Evidence Act. In other words, the prosecution can use the statement only for the limited purpose of contradicting the witness with a view to showing his un -reliability and not for the purposes of furnishing evidence in the case. Under Section 342 Criminal Procedure Code what has to be put to the accused is legally admissible pieces of evidence in the case. Under Section 261A Criminal Procedure Code the purpose of examining the accused is only with a view to seeing whether on the police papers the accused should be discharged or a charge be framed. The ambit of Section 251A cannot be extended to other purposes. The statements given by Lalchand under Section 161 or that of Hastimal were such as introduce certain matters regarding the genuineness of the ticket. The learned Magistrate could, therefore, properly examine the accused regarding such matters as were brought in by Hastimal & Lalchand about the genuineness of the ticket in question. 1 Apart from the genuineness of the ticket these witnesses had stated about what was represented by the accused to Hastimal or Lalchand. It cannot, therefore, be said that the accused was not properly examined under Section 251A Criminal Procedure Code. I may, however, make it clear that normally this provision for examination of the accused is not to be used as a trap for the accused to make him admit even such facts as have not been brought in the police papers themselves which are produced before the learned Magistrate. The present case cannot be said to be of that character.