Rajendra Verma Vs. State of M.P. - Court Judgment

Excerpt:
- madhya pradesh municipal corporation act (23 of 1956)section 91 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k.seth, jj] public nuisance - suit for injunction - held, section 91(i) of the c.p.c. is not exhaustive of the remedies that are available to a party even in case of a public nuisance or other wrongful act affecting or likely to affect the public. the remedy of the corporation and any other person under sub-section (5) of section 307 of the act of 1956 is independent of the provisions of section 91 of the c.p.c. and not only the corporation but any other person can apply to the district court for injunction or removal or alteration of a building on the ground that the provisions of the act of 1956 or the bye-laws made thereunder have been contravened. sections 41(j) & 4 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth, jj] relief of injunction held, the reliefs under the specific relief act, 1963 are granted for the purpose of enforcing individual civil rights as will be clear from section 4 of the specific relief act. 1963. accordingly, injunction under part iii of the specific relief act, 1963 is granted to the plaintiff either to prevent a breach of an obligation in favour of the plaintiff, or to compel the performance of an obligation in his favour. unless, therefore, there is an obligation in favour of the plaintiff which needs to be enforced, the court cannot grant injunction. hence, it is provided in section 41(j) of the specific relief act. 1963 that an injunction cannot be granted when the plaintiff has no personal interest in the matter. the provisions of the specific relief act, 1963 do not apply to the right conferred on the corporation and any other person under sub-section (5) of section 307 of m.p. municipal corporation act, 1956. under the provisions of the act of 1956, every building must comply with the provisions of the act of 1956 and the byelaws made thereunder and hence if there is any breach of the provisions of the act of 1956 or the bye-laws made thereunder, sub-section (5) of section 307 of the act of 1956 confers a right not only on the corporation but also any other person to apply to the district court for an injunction for removal or alteration of a building on the ground that there has been the contravention of the provisions of the act of 1956 or the bye-laws made thereunder. this remedy under sub-section (5) of section 307 of the act of 1956 is independent of and different from the remedies under the specific relief act. 1963. section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k. seth,jj] injunction for removal or alternation of any building-locus standi to claim - held, the word any which has diverse meanings, therefore, has to be interpreted depending on the context and the subject matter of statute in which it is used. there are various other provisions in the act of 1956 and the byelaws made thereunder relating to buildings within the area of the corporation which have to be complied with. legislature has., therefore, to provide for some remedy if the provisions of the act of 1956 or the byelaws thereunder in respect of a building are violated. it is only for this reason that under sub-section (5) of section 307 of the act of 1956, a right has been conferred not only on the corporation but on any other person to apply to the district court for injunction for removal of a building or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. hence, not only the corporation but every other person has been given the right to apply to the district court for injunction for the removal or alteration of any building on the ground that it contravenes any provisions of the act or the byelaws made thereunder. the context and the subject-matter of the statute in which the word any has been used is thus, wide enough to include all persons other than the corporation or every other person other than the corporation or any other person other than the corporation. - 8. the counsel for the applicant has made a heavy stress on the fact of discovery of information of conspiracy by co-accused persons by highlighting certain lacuna in the investigation, where one of the accused has failed to disclose the name of another co-accused hari ram and have also demonstrated that the entire chain of events commencing from the date of the information and disclosure of the fact till the completion of the investigation about the involvement of the accused persons, apparently do not complete the chain of events, without which it is difficult to connect the accused persons with the commission of the offence. 20,66,123/- at a later stage and on that count also the benefit is required to be given to the applicant by allowing him to be enlarged on bail, as the complainant has utterly failed in giving the details of the collection of cash, to conncct it with the exact amount of rs.orderpiyush mathur, j.1. this is an application under section 439 of cr.pc made in connection with crime no. 278/09 registered by police station cant, district guna. under sections 392, 395, 120-b of ipc read with sections 25 and 27, arms act.2. the prosecution/investigating agency has registered crime no. 278/09 under sections 392, 395, 120-b of ipc read with sections 25 and 27 of the arms act against the present applicant in relation to an incident of dacoity committed, on date 13-7-09 in the evening hours at about 9:15 p.m. at village jodia, in a bus carrying passenger from ashok nagar to guna.3. a prompt report of the incident was lodged by one jameel khan, driver of the bus on date 13-7-09 at 22:00 hrs. with the police station by complaining that four unknown persons were travelling in the bus and out of those four persons two persons who were sitting on the bonut of the bus took out a country made pistol and place on the temporal region (head) of the driver and rest of the persons snatched the suit case and the bag from one passenger, rakesh jain, a business man, who was carrying with him a sum of rs. 15 lakhs. the driver further narrated in the fir that under the threat of shooting the driver and the passengers, the dacoits took away the bags containing the cash amount as also a videocon repairing kit from another passenger ashok yadav. he further submitted that the assailants had left a carry bags which was containing the clothes of the co-accused persons.4. the investigating agency has examined the driver, jameel khan, mr. rakesh jain and mr. ashok yadav and also examined the tailor who had stitched the clothes of the persons whose clothes were found in the carry bag.5. the counsel for the state submitted that as many 13 accused persons have been arrayed in the commission of this crime and based upon the information given for the purposes of recovery of articles by the co-accused persons, in relation to the involvement of other co-accused persons, they have arrested all the 13 accused persons and challan has been filed, in view of the conspiracy hatched by these persons and on these counts, the public prosecutor has vehemently opposed the grant of bail to the applicant.6. the counsel for the applicant has submitted that when co-accused shiv kumar raghuvanshi was arrested on date 26-7-09, he made an extra judicial confession before the investigating agency and prior to date 26-7-09, the investigating agency was not having any information about the involvement of other persons, including the applicant, and since the applicant has been arrested prior to date 26-7-09, he may be granted benefit of bail upon having no foundation of arrest in the criminal case.7. further contention of the counsel for the applicant is that the currency notes recovered from the possession of the applicant have not been identified nor the test identification parade carried out by the investigating agency has revealed any connection of the applicant with the commission of the offence and the applicant has been arrayed in the list of accused persons only on the basis of the mobile call details of co-accused uttam singh regarding which neither the transcription has been recorded or received from the mobile service provider nor the comparative call details have been collected to connect the applicant with the call of the co-accused persons.8. the counsel for the applicant has made a heavy stress on the fact of discovery of information of conspiracy by co-accused persons by highlighting certain lacuna in the investigation, where one of the accused has failed to disclose the name of another co-accused hari ram and have also demonstrated that the entire chain of events commencing from the date of the information and disclosure of the fact till the completion of the investigation about the involvement of the accused persons, apparently do not complete the chain of events, without which it is difficult to connect the accused persons with the commission of the offence. the learned counsel has also made reference of various documents filed along with the charge-sheet to demonstrate that there is an apparent discrepancy in the recovery of the cash amount as the same do not tally with the initial figure of rs. 15 lakhs given by the co-accused persons as the same complainant has given an enhanced figure of rs. 20,66,123/- at a later stage and on that count also the benefit is required to be given to the applicant by allowing him to be enlarged on bail, as the complainant has utterly failed in giving the details of the collection of cash, to conncct it with the exact amount of rs. 20,66,123/-.9. the learned public prosecutor has submitted that the fir was lodged by the driver of the bus jameel khan on date 13-7-09, whereby the fact of the theft/dacoity of rs. 15 lakhs was recorded in a manner that the complainant rakesh jain was shouting in the bus that the bag was containing rs. 15 lakhs and when the statement of mr. rakesh jain was recorded within 24 hours on date 14-7-09 by the investigating officer, it was disclosed that the complainant rakesh jain had made collection of money due to him, against the supply of goods to him and he had collected different denomination of notes as payment against the goods supplied and when he calculated the details of the collection, he immediately disclosed to the investigating authority that his bags/suit case was containing an exact amount of rs. 20,66,123/- and the discrepancy do not exist while reading the fir as also the statement of complainant rakesh jain recorded under section 161 of cr.pc.10. shri bharadwaj, learned public prosecutor further submitted that on the basis of the information given by the co-accused persons on date 21-7-09 itself the investigating agency had gathered the information about the hatching of conspiracy and the involvement of the accused persons in the commission of the present offence, therefore, the contention of the learned counsel for the applicant that the investigating agency was having no information or material with it, to connect the applicant with the commission of the offence, prior to date 26-7-09 is entirely misplaced, because co-accused hari ram, bablu and mohan had already given the information about the conspiracy and involvement of as many as 13 accused persons in the commission of the offence on date 21-7-09 and as such mere reading of the information of co-accused shiv kumar raghuvanshi could not be treated to be the only information, available with the investigating agency, before arresting the accused persons.11. learned public prosecutor has referred to the documents demonstrating the result of the test identification parade carried out by the investigating authority to demonstrate that the complainant rakesh jain has identified as many as 5 persons, namely, bablu, prasann, uttam, chandrabhan and shiv kumar. shri bharadwaj has further relied upon the fact of information and discovery successfully carried out by the investigating agency, in terms of the memo prepared under section 27 of the evidence act to connect the guilt/crime with the guilty/criminal.12. the counsel for the applicant while attacking on the veracity and acceptability of the confession of the co-accused in the memo prepared under section 27 of the evidence act has relied upon four judgments reported as 1994 (ii) m.p.wn 72, prakash singh v. state of m.p. 2005 (1) crimes 113, jayendra saraswathi swamigal v. state of tamil nadu 1998 scc (criminal) 1625, suresh budharmal kalani and 1995 (i) m.p. wn 248, susheel kumar sharma v. state of m.p., to demonstrate that no proceeding could be initiated and/or no charge could be framed or sustained against an accused persons on sole confession or information of the co-accused and, therefore, the memo prepared under section 27 of the evidence act cannot be relied upon to connect the applicant with the offence.13. the aforesaid judgments definitely deals with an issue of confession of co-accused or the information of a co-accused leading to the discovery of a fact but in view of the catena of judgment of the supreme court, it has to be examined as to whether the information given by a co-accused about the commission of the offence has a corroborative value or it could be ignored at the stage of the consideration of the bail application and since none of these four judgments cited on behalf of the applicant deals with the controversy in question, no benefit could be given to the accused persons at this stage.14. since the entire chain of events right from the stage of the commission of the conspiracy at ashok nagar up till the commission of the offence at village todia appears to be prima facie complete in nature, which further finds reflection in the information by the applicant/accused persons in their memo prepared under section 27 of the evidence act, it could not be said that there is any discrepancy in the entire chain of events and no benefit of any lacuna, of a petty nature, could be given to the accused/applicant at this stage particularly when the accused person giving information about the involvement of the other co-accused persons are all being tried together in the trial. similarly, the complainant rakesh jain has given the details of the cash contained in the two bags, within a short duration of 24 hours and the same gets connected with the recovery of the amount from various accused persons, therefore, it could not be said that the prosecution has been launched against the applicant without any foundation.15. in these facts and circumstances it appears that a serious offence of committing dacoity and conspiracy has been committed by the accused persons with an established previous meeting of mind, therefore, even when the driver of the bus has suggested for the actual commission of the offence by only four unknown persons, inside the bus, it could not be said that the accusation levelled against all the 13 persons are beyond the purview of the scope of sections 392, 395 and 120-b of the indian penal code, however, this may not be treated to be an expression of the opinion of this court, during the trial. therefore, i find no reason to grant benefit of bail to the applicant on account of his alleged involvement in the commission of the offence and as such the bail application is dismissed. it is made clear that the trial court shall not be influenced by any of the observation made in this order by this court and it shall be free to take appropriate decision on the basis of the evidence brought on record. application is dismissed.

Judgment:
ORDER

Piyush Mathur, J.

1. This is an application under Section 439 of Cr.PC made in connection with Crime No. 278/09 registered by Police Station Cant, District Guna. Under Sections 392, 395, 120-B of IPC read with Sections 25 and 27, Arms Act.

2. The Prosecution/Investigating Agency has registered Crime No. 278/09 under Sections 392, 395, 120-B of IPC read with Sections 25 and 27 of the Arms Act against the present applicant in relation to an incident of Dacoity committed, on date 13-7-09 in the evening hours at about 9:15 p.m. at Village Jodia, in a Bus carrying passenger from Ashok Nagar to Guna.

3. A prompt report of the incident was lodged by one Jameel Khan, Driver of the Bus on date 13-7-09 at 22:00 hrs. with the Police Station by complaining that four unknown persons were travelling in the Bus and out of those four persons two persons who were sitting on the Bonut of the Bus took out a Country Made Pistol and place on the Temporal Region (Head) of the Driver and rest of the persons snatched the suit case and the bag from one passenger, Rakesh Jain, a business man, who was carrying with him a sum of Rs. 15 lakhs. The driver further narrated in the FIR that under the threat of shooting the driver and the passengers, the Dacoits took away the bags containing the cash amount as also a Videocon Repairing Kit from another passenger Ashok Yadav. He further submitted that the assailants had left a carry bags which was containing the clothes of the co-accused persons.

4. The Investigating Agency has examined the Driver, Jameel Khan, Mr. Rakesh Jain and Mr. Ashok Yadav and also examined the Tailor who had stitched the clothes of the persons whose clothes were found in the carry bag.

5. The Counsel for the State submitted that as many 13 accused persons have been arrayed in the commission of this crime and based upon the information given for the purposes of recovery of articles by the co-accused persons, in relation to the involvement of other co-accused persons, they have arrested all the 13 accused persons and challan has been filed, in view of the conspiracy hatched by these persons and on these counts, the Public Prosecutor has vehemently opposed the grant of bail to the applicant.

6. The Counsel for the applicant has submitted that when co-accused Shiv Kumar Raghuvanshi was arrested on date 26-7-09, he made an Extra Judicial Confession before the Investigating Agency and prior to date 26-7-09, the Investigating Agency was not having any information about the involvement of other persons, including the applicant, and since the applicant has been arrested prior to date 26-7-09, he may be granted benefit of bail upon having no foundation of arrest in the criminal case.

7. Further contention of the Counsel for the applicant is that the currency notes recovered from the possession of the applicant have not been identified nor the Test Identification Parade carried out by the Investigating Agency has revealed any connection of the applicant with the commission of the offence and the applicant has been arrayed in the list of accused persons only on the basis of the Mobile Call details of co-accused Uttam Singh regarding which neither the Transcription has been recorded or received from the Mobile Service Provider nor the comparative call details have been collected to connect the applicant with the call of the co-accused persons.

8. The Counsel for the applicant has made a heavy stress on the fact of discovery of information of conspiracy by co-accused persons by highlighting certain lacuna in the investigation, where one of the accused has failed to disclose the name of another co-accused Hari Ram and have also demonstrated that the entire chain of events commencing from the date of the information and disclosure of the fact till the completion of the investigation about the involvement of the accused persons, apparently do not complete the chain of events, without which it is difficult to connect the accused persons with the commission of the offence. The learned Counsel has also made reference of various documents filed along with the charge-sheet to demonstrate that there is an apparent discrepancy in the recovery of the cash amount as the same do not tally with the initial figure of Rs. 15 lakhs given by the co-accused persons as the same complainant has given an enhanced figure of Rs. 20,66,123/- at a later stage and on that count also the benefit is required to be given to the applicant by allowing him to be enlarged on bail, as the complainant has utterly failed in giving the details of the collection of cash, to conncct it with the exact amount of Rs. 20,66,123/-.

9. The learned Public Prosecutor has submitted that the FIR was lodged by the Driver of the Bus Jameel Khan on date 13-7-09, whereby the fact of the theft/dacoity of Rs. 15 lakhs was recorded in a manner that the complainant Rakesh Jain was shouting in the bus that the bag was containing Rs. 15 lakhs and when the statement of Mr. Rakesh Jain was recorded within 24 hours on date 14-7-09 by the Investigating Officer, it was disclosed that the complainant Rakesh Jain had made collection of money due to him, against the supply of goods to him and he had collected different denomination of notes as payment against the goods supplied and when he calculated the details of the collection, he immediately disclosed to the Investigating Authority that his bags/suit case was containing an exact amount of Rs. 20,66,123/- and the discrepancy do not exist while reading the FIR as also the statement of complainant Rakesh Jain recorded under Section 161 of Cr.PC.

10. Shri Bharadwaj, learned Public Prosecutor further submitted that on the basis of the information given by the co-accused persons on date 21-7-09 itself the Investigating Agency had gathered the information about the hatching of conspiracy and the involvement of the accused persons in the commission of the present offence, therefore, the contention of the learned Counsel for the applicant that the Investigating Agency was having no information or material with it, to connect the applicant with the commission of the offence, prior to date 26-7-09 is entirely misplaced, because co-accused Hari Ram, Bablu and Mohan had already given the information about the conspiracy and involvement of as many as 13 accused persons in the commission of the offence on date 21-7-09 and as such mere reading of the information of co-accused Shiv Kumar Raghuvanshi could not be treated to be the only information, available with the Investigating Agency, before arresting the accused persons.

11. Learned Public Prosecutor has referred to the documents demonstrating the result of the Test Identification Parade carried out by the Investigating Authority to demonstrate that the complainant Rakesh Jain has identified as many as 5 persons, namely, Bablu, Prasann, Uttam, Chandrabhan and Shiv Kumar. Shri Bharadwaj has further relied upon the fact of information and discovery successfully carried out by the Investigating Agency, in terms of the Memo prepared under Section 27 of the Evidence Act to connect the guilt/crime with the guilty/criminal.

12. The Counsel for the applicant while attacking on the veracity and acceptability of the confession of the co-accused in the Memo prepared under Section 27 of the Evidence Act has relied upon four judgments reported as 1994 (II) M.P.WN 72, Prakash Singh v. State of M.P. 2005 (1) Crimes 113, Jayendra Saraswathi Swamigal v. State of Tamil Nadu 1998 SCC (Criminal) 1625, Suresh Budharmal Kalani and 1995 (I) M.P. WN 248, Susheel Kumar Sharma v. State of M.P., to demonstrate that no proceeding could be initiated and/or no charge could be framed or sustained against an accused persons on sole confession or information of the co-accused and, therefore, the memo prepared under Section 27 of the Evidence Act cannot be relied upon to connect the applicant with the offence.

13. The aforesaid judgments definitely deals with an issue of confession of co-accused or the information of a co-accused leading to the discovery of a fact but in view of the catena of judgment of the Supreme Court, it has to be examined as to whether the information given by a co-accused about the commission of the offence has a corroborative value or it could be ignored at the stage of the consideration of the bail application and since none of these four judgments cited on behalf of the applicant deals with the controversy in question, no benefit could be given to the accused persons at this stage.

14. Since the entire chain of events right from the stage of the commission of the conspiracy at Ashok Nagar up till the commission of the offence at Village Todia appears to be prima facie complete in nature, which further finds reflection in the information by the applicant/accused persons in their Memo prepared under Section 27 of the Evidence Act, it could not be said that there is any discrepancy in the entire chain of events and no benefit of any lacuna, of a petty nature, could be given to the accused/applicant at this stage particularly when the accused person giving information about the involvement of the other co-accused persons are all being tried together in the trial. Similarly, the complainant Rakesh Jain has given the details of the cash contained in the two bags, within a short duration of 24 hours and the same gets connected with the recovery of the amount from various accused persons, therefore, it could not be said that the prosecution has been launched against the applicant without any foundation.

15. In these facts and circumstances it appears that a serious offence of committing dacoity and conspiracy has been committed by the accused persons with an established previous meeting of mind, therefore, even when the driver of the bus has suggested for the actual commission of the offence by only four unknown persons, inside the bus, it could not be said that the accusation levelled against all the 13 persons are beyond the purview of the scope of Sections 392, 395 and 120-B of the Indian Penal Code, however, this may not be treated to be an expression of the opinion of this Court, during the trial. Therefore, I find no reason to grant benefit of bail to the applicant on account of his alleged involvement in the commission of the offence and as such the bail application is dismissed. It is made clear that the Trial Court shall not be influenced by any of the observation made in this order by this Court and it shall be free to take appropriate decision on the basis of the evidence brought on record. Application is dismissed.