The petitioner has filed the present M.Cr.C. challenging the order dated 23/01/2020XXV ASJ, Indore in S.T. No.138/2019 whereby refusing the
application preferred by the petitioner for discharge as well as quashment of entire proceedings initiated against him.
2. Facts in brief are that FIR was registered against the petitioner on 12/10/2018 at Police Station-Banganga, Indore on the allegation that on
03/10/2018 at about 05:00 AM an unknown person came on tanker bearing registration No.GJ-06/VV/8199 and has poured some chemical in the Nala
of Bhagirathpura, due to which from the water of Nala flammable smoke came out, which causes inconvenience to the nearby residents and they feel
uncomfortable. On the basis of this FIR was registered against the driver of the tanker under Section 268, 279, 277, 278, 284, 308 of IPC on
10/10/2018. The police arrested the co-accused alongwith driver on the basis of memo under Section 27 of the Evidence Act prepared by the police.
Thereafter, again on 12/10/2018 memo was prepared but in these memos there are no allegation against the present petitioner. Thereafter again third
memo under Section 27 of Evidence Act was prepared against co-accused-Prakash on 01/11/2018 but in this memo also there are no allegation
against the present petitioner. Thereafter, police station-Banganga on 02/11/2018 again prepared further memo under Section 27 of the Evidence Act
against co-accused-Prakash. In this case, Prakash has made allegation against the present petitioner stating that Manoj Mishra has accompanied him
by Active bearing registration No.MP-09/UC/5350, which moving in front of his tanker and poured the chemical in the Nala and ran away. On the
basis of this allegation, police station-Banganga registered case against the present petitioner and arrested him on 05/11/2018 and on the same day
memo under Section 27 of Evidence Act was prepared and on the basis of statement Active Scooter was seized from the house of the present
petitioner. Thereafter, investigation was completed and charge-sheet was filed. The Court below has framed charges against the petitioner under the
aforesaid sections. Thereafter, petitioner has filed application under Section 227 of Cr.P.C. for discharge from the charges framed against him. The
Court below vide order dated 23/01/2020 has rejected the said application. Being aggrieved by the said order as well as entire proceedings initiated
against him, the present petitioner has filed this M.Cr.C.
3. Learned senior counsel for the petitioner argued that in the present case, the petitioner has been implicated. It is submitted that three memos were
prepared under Section 27 of the Evidence Act of the co-accused-Prakash in which it does not make any allegation against the present petitioner. The
present petitioner has been implicated on the basis of memo under Section 27 of the Evidence Act prepared by the police. He further submits that
there are catena of judgments passed by this Court in which it has been held that memo under Section 27 of the Evidence Act prepared does not have
any evidenciary value. He further relied on the judgment passed in the matter of Raghu Thakur vs. State of M.P. 2012 (4) MPHT 116.
4. Learned senior counsel submits that other co-accused have been discharged by this Court vide order dated 10/07/2019 passed in M.Cr.C.
No.10448/2019 (Dinesh Sharma and Ors. vs. State of M.P.), therefore, in light of the aforesaid, learned senior counsel submits that there is no prima
facie evidence available against the petitioner. Hence, it is prayed that petition may be allowed and the entire proceedings initiated against the
petitioner may be quashed.
5. On the other hand, learned Government Advocate supports the impugned order passed by the Court below and submits that there is ample evidence
available on record against the petitioner, therefore, learned Court below has rightly rejected the application submitted by the petitioner.
6. Heard learned counsel for the parties and perused the record.
7. In the present case, FIR has been registered against the present petitioner under Section 268, 279, 277, 278, 284, 308 of IPC. Co-accused-Prakash
in his statement under Section 27 of Evidence Act does not allege any thing against the present petitioner. However, in the last memo he made
allegation against him that petitioner was driving the vehicle in front of his tanker. Only on the basis of this memo, the present petitioner has been
implicated. However, there is no other evidence available against him.
8. This Court in the case of Raghu Thakur (Supra) has held in regard to Section 25 and 27 of Evidence Act. Thus, only on the basis of memo prepared
under Section 27 of the Evidence Act, the present petitioner cannot be implicated in the offence. Thus, in the considered opinion of this Court only on
the bais of disclosure of statement of co-accused-Prakash, the petitioner cannot be grilled. Hence, the petition filed by the petitioner is allowed. FIR
registered against the petitioner at Crime No.1114/2018 and entire subsequent criminal proceedings are hereby quashed.
C.C. as per rules.
