IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.54631 of 2007 VIVEK RANJAN @ CHUCHU, Son of Braj Bihari Prasad, R/o Sri Kirshna Nagar, P.S. Town, Motihari, District – East Champaran …… Petitioner Versus STATE OF BIHAR . ….. Opp. Party ----------- For the petitioner : M/s Kinkar Kumar and Ved Prakash Srivastava, Advocates For the State : Mr. Jharkhandi Upadhaya, A.P.P. O R D E R This application by one of the F.I.R. named and chargesheeted accused of Motihari (Town) P.S. Case No. 324 of 2005 is for the quashing of the order dated 27.8.2007 passed by the learned Sessions Judge, East Champaran at Motihari, in Criminal Revision No. 231 of 2007, whereby while dismissing the said revision he has upheld the order dated 26.4.2007 passed in the said police case by Sri P.Trivedi, Judicial Magistrate, First Class, Motihari, whereunder he had dismissed the discharge petition filed by the petitioner under section 239 Cr.P.C. The prosecution case is based on the written report submitted by Priya Ranjan, the S.I. of Chhatauni P.S. on 27.10.2005. According to him earlier that day he along with other police personnel was busy collecting information in respect of criminals and in course thereof when he reached near the office of the Sub-Divisional Education Officer at 2 around 6 P.M. he saw three persons who on seeing the police party, took to their heels. They were apprehended on chase and on being questioned in the presence of witnesses disclosed their names, parentage and their addresses. On search a Nokia mobile set with mobile no. 9431467290 was recovered from the possession of the petitioner and from the possession of accused Sharat Chandra a country made pistol loaded with a .315 bullet and a Nokia mobile set with mobile no. 9431604580 were recovered and as they, on demand, could not produce any documents therefor, the articles were seized under seizure lists in the presence of witnesses. On query being made all the three are alleged to have stated jointly that they had jointly purchased the said pistol for Rs. 1500/- from one Biraj Kumar who runs the telephone booth opposite the petrol pump adjacent to the Town Police Station. On the basis of the said written report the police case was registered under section 414/34 IPC and sections 25(1-B)A, 26 and 35 of the Arms Act against the three apprehended persons and Biraj Kumar. The petition for his discharge as filed by the petitioner was dismissed by the learned Magistrate on the ground that the three apprehended persons had jointly declared that they had jointly purchased the pistol from Biraj Kumar. 3 The revision preferred by the petitioner against the said order was also dismissed by the Sessions Judge on a finding that the articles are said to have been under the joint control and joint possession of all the accused persons and that from perusal of the case diary, a prima facie case was made out against the accused persons. Admittedly a mobile set is a commodity of general use and is within the reach of the commonest of people. It is of such general and common use that no one carries the purchase receipt with him. It was rather hardy for the informant to have asked the petitioner to produce papers on the mobile set being recovered from his possession. It is in evidence that the mobile set had been purchased in the name of the petitioner and the relevant receipt had been produced before the police by his family members and finds a mention in paragraph 45 of the case diary. It is also a fact that no theft case in respect of the mobile set and the countrymade pistol had been reported or registered. In such a situation no case under section 414/34 IPC can be said to have been made out. So far as the country made pistol is concerned, it admittedly was recovered from the possession of accused Sharat Chandra and apart from the confessional statement of the three apprehended accused that they had jointly purchased 4 the pistol there does not appear to be any other material. Neither the Magistrate nor the Sessions Judge have alluded to any other matter in their respective orders. It is also an admitted position in law that the confessional statement of a co-accused can possibly have no evidenciary value. Therefore, even if the petitioner confessed of having jointly purchased the pistol along with the others that by itself or the confessional statement of the other co-accused would in no event be a reason for prosecuting the petitioner. In the facts and circumstances of the case and the discussions in the foregoing paragraphs the application is allowed and the impugned orders of the courts below, so far as the petitioner is concerned, are set aside. It goes without saying that the petitioner shall stand discharged. It is made clear that if in course of trial the conditions of section 319 Cr.P.C. are satisfied, the court in seisin of the trial shall be at liberty to pass orders in accordance with law. Patna High Court, Patna. Dated : The 29th of July, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)