Judgment:
ORDER
1. This is a petition filed by the petitioner Selvaraj under Section 482 of Cr.P.C. to quash the proceedings in C.C. No. 8692/96 on the file of the learned XIII Metropolitan Magistrate, Egmore, Chennai.
2. The material allegations in the petition are as follows :- The petitioner was charged for the alleged offence under sections 379 read with 34, I.P.C. along with another accused by name Sampath, who is arrayed as first accused in this case. The petitioner is facing trial before the learned XIII Metropolitan Magistrate's Court and it is alleged that the petitioner herein along with the 1st accused Samapth had stolen a sum of Rs. 1420/- from the complainant by name S. S. Nathan, son of Krishnan, in a bus running between P. Orr. and Sons and Wallajah Road Junction on 10-10-1996 at 1.30 p.m. The charge sheet has also been filed against the petitioner and the said Sampath (A1) in C.C. No. 8370/96 and the co-accused Samapth in this case pleaded guilty, and hence the case as against the petitioner was split up and new C.C. Number was given as far as the petitioner is concerned. The above case is pending for a long time and no witnesses were produced before the Court by the respondent police till date for the examination. Absolutely there is no evidence against the petitioner to proceed with the case against the petitioner and the ingredients of the offence are not made out as against the petitioner herein from the materials filed before the Court.
3. The respondent-complainant had filed a counter-statement raising the following contentions :- During the course of investigation it was found that the petitioner along with another by name Sampath was involved in the occurrence. The said Samapth was arrested on 31-10-1996 at about 4.30 p.m. and the petitioner was arrested on 31-10-1996 at about 5.00 p.m. Investigation was completed and the charge sheet was filed before the learned XIII Metropolitan Magistrate, Egmore, Chennai and the same was taken as C.C. No. 8370/96. The first accused was sentenced to undergo imprisonment for nine weeks by the learned XIII Metropolitan Magistrate on 30-12-1996, and the case was split up as against this petitioner in C.C. No. 8692/96, and the case in C.C. No. 8692/96 is pending trial. The case is posted 21-7-1997 for examination of witnesses. The petitioner may very well approach the trial Court and put forth all his defence before the said Court. 4. On the above pleadings and after hearing the learned counsel for both sides, the point that arises for determination is to what relief the petitioner is entitled.
4. Point :- The petitioner herein is the 2nd accused in the above case, and the first accused pleaded guilty to the charge and as a result the case as against the petitioner was split up and the same was taken on file as C.C. No. 8692/96. According to the petitioner, there is absolutely no material to connect him with the occurrence and the ingredients of the offence as against him are not made out from the materials filed before the learned Magistrate. This statement of the petitioner as found in para 5 of the petition was not at all denied by the respondent in his objection-statement filed in this case. There are five witnesses cited in the charge sheet and they are (1) Nathan, who is the complainant, (2) Vijayakumar, who is a witness for the confessional statement of 1st accused and 2nd accused, (3) Kapali, who is another witness for the confessional statements of 1st and 2nd accused, (4) Chidambaram, who is the Head constable of D-1, Triplicane Police Station, Madras and (5) Sarangapani, who is the Sub-Inspector of Police, D-1 Triplicane police station, Madras. The last two witnesses are police officials and they have investigated the case. So the only materials that are available as against the petitioner are the statement of witnesses by name Nathan, Vijaykumar and Kapali. The witness by name Nathan in his statement given to the police and recorded under section 161 of Cr.P.C. has stated as follows :-
'Some one had stolen the money from my bag by cutting it. I am suspecting a person who is wearing yellow coloured shirt and alighting from the bus while coming near the signal. I have not seen his face.'
5. A perusal of the statement of the witness by name Nathan would reveal that he has not identified the petitioner, who is the 2nd accused, as one of the culprits who have committed the theft of a sum of Rs. 1420/- from him. The witness Nathan merely stated that some one had stolen money from his bag by cutting it and he has not seen his face. There is no identification parade held and no recovery was made from the petitioner herein. Therefore, the statement of Nathan will not connect the petitioner with the Crime alleged.
6. Then the other statements are of mahazar witnesses viz. Vijayakumar and Kapali. Their statements given to the police are identical, and in the last portion of their statements they would state that both the accused have stated in the confession statements as follows :-
'On 19-10-1996 both of them had stolen a sum of Rs. 1420/- in a bus 18K from a person and after sharing it they have spent it today. While both of them were waiting at Pallavan Salai bus stand, the D1 police caught them. If he was taken, he will show the place where they have committed the offence of theft.'
7. This statement of mahazar witnesses by name Vijayakumar and Kapali are inadmissible in evidence because the incriminating confession statements made by the accused to the police is not admissible as pointed out by the Supreme Court in the decision reported in : 1960CriLJ1504 . There is no recovery made on the basis of the alleged confession statement given by the accused 1 and 2, and as such the alleged confession statement made by the petitioner, who is the second accused, to the police in the presence of mahazar witnesses by name Vijayakumar and Kapali is also inadmissible in evidence under section 27 of the Evidence Act. Further no conviction can be based upon the confession statement of co-accused without any corroboration as laid down in the decision reported in 1990(2) NWN (Crl) 60 P. Pulla Rao v. State Represented by Deputy Director of Narcotics Control Bureau South Zone T. Nagar, Madras, wherein it was held that the confession of a co-accused can never form the foundation of the prosecution case as against the other accused under section 30 of the Evidence Act unless there are materials implicating the other accused in the offence. So on facts and on perusal of the statements of witnesses in this case, there is absolutely no material to connect the petitioner, who is the second accused, with the commission of the offence in this case. There are no reasonable grounds, much less sufficient grounds for the petitioner's involvement in the alleged offence that took place on 19-10-1996 that a sum of Rs. 1420/- was stolen from the witness Nathan. Therefore, I am of the view that the ingredients of the offence under section 379 read with 34 of I.P.C. are not made out as against the petitioner from the material placed before the Magistrate's Court, and as such, the proceedings in C.C. No. 8692/96 on the file of XIII Metropolitan Magistrate's Court, Egmore, Madras has to be quashed, and hence this petition has to be allowed, and the proceedings in C.C. 8692/96 on the file of XIII Metropolitan Magistrate, Egmore, Madras are quashed and consequently I answer this point in favour of the petitioner.
8. In the result this petition is allowed. The proceedings in C.C. No. 8692/96 on the file of XIII Metropolitan Magistrate, Egmore, Madras as against the petitioner are hereby quashed.
9. Petition allowed.