Tejpal K. JaIn Vs. Union of India (Uoi) - Court Judgment

Excerpt:
held: smuggling - past conduct--presumption--prosecution--that the petitioner was involved in smuggling activities earlier cannot lead to the conclusion that he was involved in the present crime. petitioner was rightly discharged under section 245, cr.p.c in the absence of evidence against him.cr. revision petition allowed. - motor vehicles act, 1988 [c.a. no. 59/1988]section 147; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] liability of insurer - third party insurance held, the insured who is a party to the insurance is not a third party for the purpose of chapter xi of the act, particularly section 147 thereof. thus, any person other than the insurer and the insured who are parties to the insurance policy is a third party. the insurer, however, would not be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of section 147 of the act or under the terms and conditions of the policy of insurance. hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under section 147 of the act or under the terms and conditions of the insurance policy. an employee is a third party inasmuch as he is not a party to the insurance policy. but merely because an employee is a third party, the insurance company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless section 147 of the act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. section 147 (1)(b) of the act provides that in order to comply with the requirements of chapter xi of the act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the liabilities mentioned in clauses (i) and (ii) thereunder. even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of sub-section (1) of section 147 of the act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in sub-clauses (a), (b) and (c)of clause (i) of the proviso to sub-section (1)of section 147 of the act and further in cases where such employees fall under categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the proviso to sub-section (1`) of section 147 of the act, the insurer is liable only for the liability under the workmens compensation act, 1923. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. sections 147 & 96 & m.p. m.v. rules, 1994, rule 97; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] control of transport vehicles m.p. rules relate to provisions of control of transport vehicles and it cannot be adopted for interpreting sections 147 and 145 of the m.v. act to hold the insurer liable for death or bodily injury suffered by passenger. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. - jain, who in fact was mukesh singh rathore, it can at best be inferred that the petitioner knew mukesh singh rathore.orderc.m.k. prasad, j.1. union of india, through asstt. collector, customs and central excise, lodged a complaint in the court of additional chief judicial magistrate (economic offences court), indore, impleading five persons as accused, including accused no. 5 tejpal singh alias tom alias tinu, who is the petitioner in this revision petition. according to the complaint, maruti car no. dac 8110 was intercepted on 11-12-1988 at 22.30 hours at hotel pallavi situated at 1/1 green park, indore in the presence of two panch witnesses, when one of its two occupants came out of the said hotel along with the occupant of room no. 207 of hotel pallavi indore. according to the complaint, the occupants of the said maruti car had earlier gone inside the hotel to contact the occupant of room no. 207 of the hotel. the persons occupying the said maruti car disclosed their identity as pradeep singh walia (accused no. 1) and harbhajan singh (accused no. 3). it is alleged that officers of customs and central excise enquired from them as to whether they possess any contraband gold in their possession, they are alleged to have replied in negative. it is further alleged that for safety and security, the aforesaid maruti car along with accused persons pradeep singh walia, harbhajan singh and mukesh singh rathore and two panch witnesses were escorted to the office of the central excise at manik bagh palace, indore. it is further alleged that the said maruti car was searched which resulted in recovery of 200 foreign made gold biscuits of 10 tolas each from a cavity on the left side, of the floor of the car. the aforesaid accused could not produce any proof-documentary or otherwise, in support of legal acquisition/import of the recovered contraband gold biscuits. total weight of the said biscuits was 23.330 kgs. valued at rs. 73,48,950/-. in the opinion of the complainant, the aforesaid gold biscuits were smuggled and liable to be confiscated.2. further story according to the complainant is that in search of accused no. 1 pradeep singh walia, a 'two-rupee' note-and one 'hundred rupee' note containing description 'r.k. shah - 35136, two palwabi h-45/262502' was written in ink. it is alleged that accused no. 1 pradeep singh disclosed before panch witnesses that the said two rupee note was given to him as a token by accused no. 3 mukesh singh rathore at hotel pallavi itself for taking delivery of foreign made gold biscuits. he is alleged to have stated that he had written the said description on one hundred rupee note at amritsar. so far as the present petitioner is concerned, it is stated that in his statement recorded under section 108 customs act, he has stated that he knew r.k. shah since long. he further disclosed telephone number of the said r.k. shah. in his statement he has further admitted that he had been receiving smuggled foreign made gold from n.k. jain through a man known as baba. he is also alleged to have admitted that he had dealings of foreign made biscuits with n.k. jain on telephone and, thereafter, person named as 'baba' had delivered 50 and 70 pieces of foreign made gold biscuits during the period august 1988 to deepawali 1988. it is further alleged that after he sold the said gold biscuits, he made payment of rs. 45,00,000/- to n.k. jain, through accused nos. 3, 4 and one gyanchand. it is further stated in the complaint that this petitioner has admitted that indian air lines tickets produced by him were purchased by him in the name of r.k. shah as per telephonic instructions of n.k. jain.3. the trial was conducted according to the procedure provided for conduct of warrant cases. during trial the complainant examined three witnesses in support of its case as provided under section 244 cr. pc. documentary evidence was also produced during the said trial.4. the learned magistrate, by its order dated 10-5-1990, in exercise of powers conferred under section 245 cr. p.c discharged the petitioner, whereas he had directed for framing of charges against other accused persons. aggrieved by the aforesaid order, the union of india, preferred revision petition before the sessions judge, indore, which was ultimately heard by the 5th addl. sessions judge indore and he, by order dated 4-5-1991, set aside the order of the learned magistrate dated 10-5-1990 and directed framing of charges against the petitioner also. aggrieved by the aforesaid order of the learned additional sessions judge, the petitioner has preferred this revision petition before this court.5. shri s. kulshrestha, learned counsel for the petitioner, in support of the application submitted that the addl. sessions judge totally misdirected himself in setting aside the order of discharge passed by the learned magistrate. he instead of applying the principle of discharge as provided under section 245 cr. p.c., tested the order of the magistrate in the light of the provisions of section 239 of the cr. p.c. according to the learned counsel, the learned magistrate was bound to pass order keeping in mind the principles enunciated in section 245 cr. p.c. learned counsel further submitted that under section 245 cr. pc., the learned magistrate is only required to see if the evidence produced as contemplated under section 244 cr. pc., if unrebutted, would warrant the accused's conviction. however, the learned addl. sessions judge, while allowing the application has proceeded to see as to whether there is prima facie case against the petitioner. shri kulshrestha, in fairness, submitted that the statements made before the customs authorities by the petitioner can be taken into consideration for the proposes of framing charge. however, he contended that whatever has been stated by the petitioner in this statement as also from the statements made in the complaint petition, statements of the witnesses as also the documentary evidence, even if unrebutted, no case is made out for framing of charge and these materials would not warrant his conviction. according to him, the admission of the petitioner that he was involved in dealing of contraband articles earlier, cannot connect him with the present crime. he further submitted that from production of two air tickets in the name of shri r.k. shah, at the instance of n.k. jain, who in fact was mukesh singh rathore, it can at best be inferred that the petitioner knew mukesh singh rathore. but this itself, in my opinion, cannot connect him with the crime. in his submissions shri kulshrestha submitted that to know a person and being associated with him in the crime is entirely different situations and one cannot be prosecuted simply on the ground that the petitioner knew the accused.6. shri e.g. neema, learned standing counsel for the union of india contended that in case there is prima facie material to connect the petitioner with the crime, the learned magistrate was not correct in passing the order of discharge, which was rightly reversed by the revisional court. he further submitted that at this stage the learned magistrate was not required to record order of acquittal and the same was correctly interfered with by the revisional court.7. having given my anxious consideration to the entire facts and circumstances of the case, i am in agreement with the contentions of learned counsel for the petitioner that the learned additional sessions judge has totally misdirected himself. even if it is established that the petitioner was knowing accused no. 3, this by itself cannot be a ground to connect him with the crime. further, the submission of the complainant that the petitioner was involved in smuggling activities of contraband articles earlier, cannot lead to a conclusion that he was involved in the present crime.8. i found force in the submission of shri kulshrestha. having perused the entire record, i do not find any material to connect the petitioner with the crime and the material if unrebutted would warrant petitioner's conviction the learned magistrate was right in discharging the petitioner.9. in the result the revision petition is allowed. the order of the learned addl. sessions judge, indore dated 4-5-1991 passed in criminal revision no. 165/90 is hereby set aside and that of the learned magistrate, passed in cr. case no. 64/89 on 10-5-1990 is restored. records of the courts below be sent back immediately.

Judgment:
ORDER

C.M.K. Prasad, J.

1. Union of India, through Asstt. Collector, Customs and Central Excise, lodged a complaint in the Court of Additional Chief Judicial Magistrate (Economic Offences Court), Indore, impleading five persons as accused, including accused No. 5 Tejpal Singh alias TOM alias TINU, who is the petitioner in this revision petition. According to the complaint, Maruti Car No. DAC 8110 was intercepted on 11-12-1988 at 22.30 hours at Hotel Pallavi situated at 1/1 Green Park, Indore in the presence of two Panch witnesses, when one of its two occupants came out of the said hotel along with the occupant of room No. 207 of Hotel Pallavi Indore. According to the complaint, the occupants of the said Maruti Car had earlier gone inside the hotel to contact the occupant of room No. 207 of the hotel. The persons occupying the said Maruti Car disclosed their identity as Pradeep Singh Walia (accused No. 1) and Harbhajan Singh (accused No. 3). It is alleged that officers of Customs and Central Excise enquired from them as to whether they possess any contraband gold in their possession, they are alleged to have replied in negative. It is further alleged that for safety and security, the aforesaid Maruti Car along with accused persons Pradeep Singh Walia, Harbhajan Singh and Mukesh Singh Rathore and two panch witnesses were escorted to the office of the Central Excise at Manik Bagh Palace, Indore. It is further alleged that the said Maruti Car was searched which resulted in recovery of 200 Foreign Made gold biscuits of 10 tolas each from a cavity on the left side, of the floor of the Car. The aforesaid accused could not produce any proof-documentary or otherwise, in support of legal acquisition/import of the recovered contraband gold biscuits. Total weight of the said biscuits was 23.330 kgs. valued at Rs. 73,48,950/-. In the opinion of the complainant, the aforesaid gold biscuits were smuggled and liable to be confiscated.

2. Further story according to the complainant is that in search of accused No. 1 Pradeep Singh Walia, a 'two-rupee' note-and one 'hundred rupee' note containing description 'R.K. Shah - 35136, Two Palwabi H-45/262502' was written in ink. It is alleged that accused No. 1 Pradeep Singh disclosed before Panch witnesses that the said two rupee note was given to him as a token by accused No. 3 Mukesh Singh Rathore at Hotel Pallavi itself for taking delivery of Foreign Made gold biscuits. He is alleged to have stated that he had written the said description on one hundred rupee note at Amritsar. So far as the present petitioner is concerned, it is stated that in his statement recorded under Section 108 Customs Act, he has stated that he knew R.K. Shah since long. He further disclosed telephone number of the said R.K. Shah. In his statement he has further admitted that he had been receiving smuggled foreign made gold from N.K. Jain through a man known as BABA. He is also alleged to have admitted that he had dealings of foreign made biscuits with N.K. Jain on telephone and, thereafter, person named as 'BABA' had delivered 50 and 70 pieces of foreign made gold biscuits during the period August 1988 to Deepawali 1988. It is further alleged that after he sold the said gold biscuits, he made payment of Rs. 45,00,000/- to N.K. Jain, through accused Nos. 3, 4 and one Gyanchand. It is further stated in the complaint that this petitioner has admitted that Indian Air Lines Tickets produced by him were purchased by him in the name of R.K. Shah as per telephonic instructions of N.K. Jain.

3. The trial was conducted according to the procedure provided for conduct of warrant cases. During trial the complainant examined three witnesses in support of its case as provided under Section 244 Cr. PC. Documentary evidence was also produced during the said trial.

4. The learned Magistrate, by its order dated 10-5-1990, in exercise of powers conferred under Section 245 Cr. P.C discharged the petitioner, whereas he had directed for framing of charges against other accused persons. Aggrieved by the aforesaid order, the Union of India, preferred revision petition before the Sessions Judge, Indore, which was ultimately heard by the 5th Addl. Sessions Judge Indore and he, by order dated 4-5-1991, set aside the order of the learned Magistrate dated 10-5-1990 and directed framing of charges against the petitioner also. Aggrieved by the aforesaid order of the learned Additional Sessions Judge, the petitioner has preferred this revision petition before this Court.

5. Shri S. Kulshrestha, learned counsel for the petitioner, in support of the application submitted that the Addl. Sessions Judge totally misdirected himself in setting aside the order of discharge passed by the learned Magistrate. He instead of applying the principle of discharge as provided under Section 245 Cr. P.C., tested the order of the Magistrate in the light of the provisions of Section 239 of the Cr. P.C. According to the learned counsel, the learned Magistrate was bound to pass order keeping in mind the principles enunciated in Section 245 Cr. P.C. Learned counsel further submitted that under Section 245 Cr. PC., the learned Magistrate is only required to see if the evidence produced as contemplated under Section 244 Cr. PC., if unrebutted, would warrant the accused's conviction. However, the learned Addl. Sessions Judge, while allowing the application has proceeded to see as to whether there is prima facie case against the petitioner. Shri Kulshrestha, in fairness, submitted that the statements made before the Customs Authorities by the petitioner can be taken into consideration for the proposes of framing charge. However, he contended that whatever has been stated by the petitioner in this statement as also from the statements made in the complaint petition, statements of the witnesses as also the documentary evidence, even if unrebutted, no case is made out for framing of charge and these materials would not warrant his conviction. According to him, the admission of the petitioner that he was involved in dealing of contraband articles earlier, cannot connect him with the present crime. He further submitted that from production of two air tickets in the name of Shri R.K. Shah, at the instance of N.K. Jain, who in fact was Mukesh Singh Rathore, it can at best be inferred that the petitioner knew Mukesh Singh Rathore. But this itself, in my opinion, cannot connect him with the crime. In his submissions Shri Kulshrestha submitted that to know a person and being associated with him in the crime is entirely different situations and one cannot be prosecuted simply on the ground that the petitioner knew the accused.

6. Shri E.G. Neema, learned standing counsel for the Union of India contended that in case there is prima facie material to connect the petitioner with the crime, the learned Magistrate was not correct in passing the order of discharge, which was rightly reversed by the revisional court. He further submitted that at this stage the learned Magistrate was not required to record order of acquittal and the same was correctly interfered with by the revisional Court.

7. Having given my anxious consideration to the entire facts and circumstances of the case, I am in agreement with the contentions of learned counsel for the petitioner that the learned Additional Sessions Judge has totally misdirected himself. Even if it is established that the petitioner was knowing accused No. 3, this by itself cannot be a ground to connect him with the crime. Further, the submission of the complainant that the petitioner was involved in smuggling activities of contraband articles earlier, cannot lead to a conclusion that he was involved in the present crime.

8. I found force in the submission of Shri Kulshrestha. Having perused the entire record, I do not find any material to connect the petitioner with the crime and the material if unrebutted would warrant petitioner's conviction the learned Magistrate was right in discharging the petitioner.

9. In the result the revision petition is allowed. The order of the learned Addl. Sessions Judge, Indore dated 4-5-1991 passed in Criminal Revision No. 165/90 is hereby set aside and that of the learned Magistrate, passed in Cr. Case No. 64/89 on 10-5-1990 is restored. Records of the courts below be sent back immediately.