RAJARAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition has been preferred against the order passed by the learned Judicial Magistrate, Nagaur dated June 13, 1978 by which he, in view of the provisions of section 210 (2) of the Code of Criminal Procedure, amalgamated the case against the petitioners filed on a complaint with the case instituted on a police report for the same offence. The learned Magistrate ordered that the statements recorded under sections 200 and 202, Code of Criminal Procedure, in the complaint case will be read against the accused petitioners Megharam and Rajaram and there appears to be a prima facie case under section 380, Indian Penal Code, against them.

(2.) THE learned counsel for the petitioners does not challenge the legality of the order so far as the trial of the complaint case and the case instituted on a police report being conducted together is concerned, but his contention is that the finding of the learned Magistrate that the statements recorded under secs. 200 and 202, Code of Criminal Procedure, will be read against the petitioners is erroneous. He has based his arguments on the ground that these statements were recorded in the absence of the accused and therefore the procedure adopted for the warrant case instituted otherwise than on a police report should have been followed. According to the learned counsel the statements so recorded have no sanctity and therefore before framing the charge the procedure under sections 239, 240 and 244, Code of Criminal Procedure, should have been adopted and if the matter against the petitioners was to be probed into, the statements to be recorded under section 244, Code of Criminal Procedure, only could be taken into consideration. In support of his contention the. learned counsel referred to the case: Sohan vs. THE State (1) wherein it has been observed that section 254 (old Code) does not empower a Magistrate to frame a charge against an accused on the basis of the evidence recorded in his absence before summoning him to appear in the court. According to the learned counsel even after the complaint case and the case instituted on a police report being merged they do not lose their separate existence, and the case should be proceeded as complaint case, so far as the complaint matter is concerned and it is only for the trial purpose that they become one. According to the learned counsel the statements under sections 200 and 202, Code of Criminal Procedure, being over-looked in the present case there remains nothing against the accused-petitioners to saddle them with any guilt and therefore these statements should not have been read against them in order to arrive at the conclusion that a prima facie case is made out against them.

(3.) THE learned counsel for the petitioners assailed the order of the learned Magistrate passed against the petitioners on merits also. According to him even if these statements under sections 200 and 202, Code of Criminal Procedure, are read and considered there is no prima facie case made out against the accused. It has been strenuously contended by the learned counsel that the evidence against the accused about some piece of paper containing the accounts of the house of Rajaram being found at the place of occurrence is not substantiated by the police enquiry. THE statements of the witnesses for the alleged extra, judicial confession of the accused Rajaram shows that that statement was made by the accused while in police custody. According to the learned counsel this type of evidence is not admissible and by no stretch of imagination the conviction can be expected upon such evidence, hence the accused should have been discharged.