S. C. AGRAWAL, J. - (1.) THIS revision petition is directed against the order, dated July 16, 1979, passed by the Judicial Magistrate 1st Class,no. 2, Sri Ganganagar whereby the Judicial Magistrate has directed that charges under Sections 365 and 342, I. P. C. be framed against the three petitioners.
(2.) THE petitioners and respondent No. 2, Banwarilal are real brothers. THEre is a dispute amongst them with regard to partition of the joint property and a case is pending in the court of District Judge, Sri Ganganagar. On August 20, 1977, Smt. Savitri Devi, wife of Banwarilal submitted a report before the Superintendent of Police, Sri Ganganagar, wherein it was stated that on August 10, 1977, the petitioners came to her house in Car No. P. N. O. 3199 and that they took away her husband and that he was not traceable for the last eleven days THE said report was forwarded to Police Station Kotwali, Sri, Ganganagar, and on the basis of the aforesaid report, a case under section 365 I. P. C. was registered. After investigation,the police submitted a Final Report on October 23, 1977. In the meanwhile, on October 12, 1977 Banwari-Lal filed a complaint under Sections 365, 420, 147, 506 and 467 I. P. C. before the Chief Judicial Magistrate, Sri Ganganagar against the petitioners and one Bahadur Singh. By his order, dated May 15, 1978, the Chief Judicial Magistrate has taken cognizance of the offences under Sections 365 and 342, I. P. C. as against the petitioners. THEreafter the case was transferred to the court of Judicial Magistrate, 1st Class, No. 2 Sri Ganganagar. Before the Judicial Magistrate it was submitted on behalf of the petitioners that no offence under Sections 342 and 365 is disclosed on the basis of the material on record and, therefore no charge in respect of the aforesaid offences could be framed. THE said contention was rejected by the Judicial Magistrate by his order dated July 16, 1979. THE Judicial Magistrate after taking into consideration the report dated 20th August, 1977 submitted by Smt. Savitri Devi, as well as the statements of Smt. Savitri Devi, Dr. Surendra Kumar, Madanlal, Gopiram, Khushi Ram and Banwarilal recorded under Section 161, Cr. P. C. , has held that there was prima facie evidence to make out a case under sections 365 and 342. I. P. C. against the petitioners. THE Judicial Magistrate, therefore, directed that charges under sections 365 and 342, I. P. C, should be framed against the petitioners. Being aggrieved by the aforesaid order dated July 16, 1979 the petitioners have filed this revision petition. I have heard Shri MX. Garg, the learned counsel for the petitioners and the learned Public Prosecutor as well as Shri R. R. Vyas, the learned counsel for the respondent No. 2. The law is well settled that at the stage of framing the charge the Court is not required to examine whether a conviction can be based on the evidence available at that stage but has only to see whether on the evidence remain unrebutted there is sufficient material to proceed against the accused. Shri Garg has submitted that on the basis of the material on record it cannot be said that there was sufficient material to proceed against the petitioners under Sections 365 and 342, I. P. C. In support of his aforesaid submission Shri Garg has referred to the statements of witnesses recorded under section 161, Cr. P. C. In her statement recorded, on August 22, 1977, under section 161, Cr. P. C. Smt. Savitri Devi has stated that on August 10, 1977, at about 2 p. m. Gauri Shanker, along with three persons, had come to the house of Banwarilal. Two of those persons were in police uniform. When they asked her about her husband, Banwarilal came out of the room and as soon as he came out the police men started threatening him and asked him about the account books of Gaurishanker which were stolen at Sirsa. They told Banwarilal that he would have to accompany them. Banwarilal called Dr. Surendra Kumar who arrived immediately. On being asked by Dr. Surendra Kumar the police man told him that Banwarilal had stolen the account books of Gauri Shanker and that they would take Banwarilal along with them. Thereafter they took Banwarilal along with them and at that time she saw petitioners Madan Mohan and Chunnilal standing near the house. After they had taken away Banwarilal she sent her son Gopi Ram and after some time he returned and told her that Banwarilal had been taken away in a car and that Gaurishanker had also gone in the same car.
(3.) THE statements of Dr. Surendra Kumar, Gopi Ram, Madan Lal and Khushi Ram which were also recorded on April 22, 1977, are also to the same effect. The statement of Banwari Lal was recorded under section 161 Cr. P. C. on September 19, 1977. In his aforesaid statement Banwari Lal, after narrating the events relating to his being taken away from his house, has stated that the three persons who had accompanied Gauri Shanker were policemen of Sirsa and that they had taken him in Car No. P. N. O. 3199. Banwari Lal has further stated that on the way Bahadur Singh, Head Constable, had threatened him and had asked him to retract from the statement made by him before the Sub-Registrar and say that the account books had been thrown by him in a nala or otherwise he would be badly beaten and the police would take a remand for 10 days. According to Banwarilal, after reaching Sirsa, he was taken to the shop of Gauri Shanker where Bahadur Singh kept threatening him for one hour and also made him sign on blank papers. Thereafter he was taken to the police station and kept there for one hour and then Shri Verma, S. H. O. of the police station asked Gauri Shanker to take him with him. There upon Gauri Shanker took him to his house and made him drink liquor as a result of which he became intoxicated. Thereafter he was placed in a vehicle and taken to a Dhani where he was kept confined for 7 days. On the night of August 17, 1977, Gauri Shanker and Chunni Lal came and after tying his hands and after blindfolding put him in a vehicle and left him near D. D. Head after telling him that if he took any action against them, he would be killed. Shri Garg has submitted that even if the aforesaid statements are accepted this would only show that the police men had come to the house of Banwarilal in Sri Ganganagar and had taken away Banwarilal with them and that all that has been stated as against the petitioners is that petitioner Gauri-Shanker came along with the police party and went with them in the car and that the other two petitioners Madan Mohan and Chunni Lal, were standing near the house of Banwari Lal at the time he was taken away. Shri Garg has submitted that on the basis of the aforesaid statements recorded under section 161, Cr. P. C, it cannot be said that any offence under sections 365 or 342, I. P. C. is disclosed against the petitioners. In my view, Shri Garg would have been right in his submission if statements of Smt. Sawitridevi, Dr. Surendrakumar, Madanlal, Gopiram and Khushiram alone were there because on the basis of these statements with regard to Banwarilal being taken from his house by the police party, no offence under sections 365 and 342, I. P. C. can be said to be disclosed as against any of the petitioners. But there is also the statement of Banwarilal, who has gone further and has stated that after he had been taken to police station Sirsa, the S. H. O. , police station Sirsa had asked Gaurishanker to take him away and thereupon Banwarilal was taken to the house of Gaurishanker where he was made to take liquor, as a result of which he became intoxicated and thereafter he was put in vehicle and taken to a Dhani, where he was kept confined for seven days and that on the night of August, 17, 1977, Gaurishanker and Chunnilal came there and after tying his hands and blindfolding him put him in a vehicle, and left him at D. D. Head. The aforesaid statement of Banwarilal shows that Banwarilal ceased to remain in the custody of the police men of Sirsa on August 10, 1977 and that he was kept in confinement in a Dhani for 7 days till, August 17, 1977, by Gauri Shanker and that Chunnilal was accomplice of Gaurishanker in tying Banwarilal and blindfolding him and in leaving him at D. D. Head. In view of the aforesaid statement made by Banwarilal under section 161, Cr. P. C. , it cannot be said that an offence under Section 342, I. P. C. is not disclosed as against petitioners Gaurishanker and Chunnilal. But the said statement does not disclose an offence under section 365, I. P. C. against the petitioners. Section 365 I. P. C. postulates kidnapping or abduction with an intent to cause a person to be secretly and wrongfully confined. The statements of Banwarilal and other witnesses show that the kidnapping of Banwarilal was not by the petitioner but is said to have been done by the police party and all that can be said is that after Banwarilal had been released from police custody at Police Station Sirsa he was kept in confinement by Gauri Shanker and subsequently, Chunnilal had helped him in the said confinement. The aforesaid statement does not show that Banwarilal was kidnapped by any of the petitioners before he was kept confined in the Dhani. ;