Patna High Court
Sikandar Prasad & Anr vs State Of Bihar on 11 August, 2010
Author: Akhilesh Chandra
Bench: Akhilesh Chandra
CRIMINAL MISCELLANIOUS No.32851 OF 2005
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In the matter of an application under Section 482
Of the Code of Criminal Procedure.
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1. SIKANDAR PRASAD
2. RAMADHIN PRASAD--------------Petitioners
Versus
THE STATE OF BIHAR-------------Opposite Party
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For the Petitioners : M/s N.K. Agrawal &
Vijay Anand
For the State : Mr. Braj Kishore Prasad
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P R E S E N T
THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra,J. Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the State.
2. This application has been preferred against order dated 16th June, 2005 passed by learned Chief Judicial Magistrate, Jehanabad, taking cognizance under Section 414 of the Indian Penal Code in Makhdumpur P.S. Case no. 80 of 2005 (G.R. no.535 of 2005, Trial no. 1725 of 2005).
3. Perused the lower court records, which was called for by order dated 30th October, 2006 at the time of admission of this application, received as early 2 as on 31st January, 2007. The case was instituted on the self statement of Officer in charge who, on getting confidential information about one tank-lorry bearing registration no.BR-52 / 3077 coming from Patna side with unauthorized diesel therein, conducted checking and found the information correct regarding the vehicle which was stopped. The petitioners were respectively driver and Deputy driver of the tanker. Other papers were found correct but owner book, driving licence etc. could not be produced besides challan for the diesel contained in the tanker. However, the petitioners informed the Police that it is owned by one person, resident of village Chakand Bela and they have been driving the vehicle at the instance of the owner of vehicle, Ramesh Prasad Singh, and it was stated to them that diesel was filled in and the owner purchaser of the commodity will be available soon at Chakand Bazar. However, the articles recovered were seized, case was instituted under Section 414 of the Indian Penal Code keeping the investigation pending against others on other points. After investigation charge sheet was 3 submitted against the three named accused including the two petitioners besides owner of the vehicle and vide order dated 16th June, 2005 cognizance was taken. However, cognizance was taken by the impugned order and the case was transferred to Sri Prabhat Trivedi, Judicial Magistrate, 1st Class, giving rise to present petition.
4. Learned counsel for the petitioners placing reliance upon the decisions of this Court in two cases; in the case of M/s Hanut Ram Jawahir Lal and Anr. V. State of Bihar; and Bishwanath Kedia V. State of Bihar; reported in 1989 PLJR, respectively at pages 234 and 901, and submitted that there is no prosecution case or any iota of evidence showing that any article was stolen article or any case under Section 379 of the Indian Penal Code was instituted with respect to seized article so no offence is made out under Section 414 of the Indian Penal Code. Accordingly, impugned order deserves to be quashed. It is further contended on behalf of the petitioners, by placing reliance upon the decision of this Court in a case Ram Chandra Pansari 4 V. State of Bihar, reported in 1988 P.L.J.R. 623 that only because the informant was not competent to make search and seizure under Bihar Motor Spirit and High Speed Diesel Oil Licensing Order, 1966 Clause 12, purposely to avoid requirement of law. The case was instituted under Section 414 of the Indian Penal Code. Accordingly, charge sheet was submitted and cognizance was taken but not maintainable in view of the decisions, referred to above. On the other hand, learned Additional Public Prosecutor, without making any proper assistant, tried to support the impugned order compelling this Court to reserve the order to be passed after thorough examination of case diary and lower court records.
5. It would not be out of place to mention that neither on behalf of the petitioners nor by the State any proper assistance have been provided as will appear from the facts coming out of perusal of the record and case diary which could not be pointed out at any point of time from the Bar even at the time of admission of this case and simultaneous stay of further proceeding. 5
6. No doubt, on the basis of submission of charge sheet under Section 414 of the Indian Penal Code but keeping the investigation pending against unknown and other point cognizance was taken by impugned order against three named accused including the petitioners but the Investigating Agencies continued with the investigation and on the basis of the out come prayed learned Chief Judicial Magistrate to insert Section 7 of the Essential Commodities Act under which the case was to be instituted by simultaneous submission of charge sheet against the three accused persons including the two petitioners against whom earlier charge sheet under Section 414 of the Indian Penal Code was submitted and entire investigation was closed. The Chief Judicial Magistrate, in the light of developments recalled the record from the transferee court and vide Order dated 15th February, 2006 in the light of supplementary charge sheet, took cognizance for the offence under Section 414 of the Indian Penal Code and under Section 7 of the Essential Commodities Act and transferred the case to the Court of 6 Subdivisional Judicial Magistrate, who is Special Judge and thereafter all the accused persons including the petitioners not only appeared in the said Court but also vide order dated 8/13.9. 2006 charges against them have also been framed. The trial commenced thereafter. But, none of these facts were pointed out to this Court or have been challenged by filing due petitions or affidavit.
7. During the course of argument it was regularly indicated from this Court to the learned Additional Public Prosecutor to point out from the case diary whether there was any investigation as regards to the persons named by the apprehended accused persons, that is the petitioners, or owner of the vehicle, at whose instance the commodity like diesel filled in in the tanker and being carried but neither the Additional Public Prosecutor nor the counsel for the petitioners could be able to assist, rather it was submitted that the case diary is incomplete, so entire case diary may be called contrary to it the same is complete and investigation has also been closed.
8. The case diary available on record 7 indicates that non-petitioners, owner of the tanker, Ramesh Prasad Singh, disclosed names of four persons as purchaser of the diesel from a particular shop such as Boudh & Jain Auto Service and as appears from paragraph 25 of the case diary dated 30.4.2005 enclosing a certificate said to have been issued by such dealer. But, during subsequent investigation neither the persons named nor the dealer appeared accepting such purchase or sale and even issuance of the certificate in support of sale produced by non-petitioners who was denied and the stock register of the said dealer also indicates sale of diesel on the relevant day in much less quantity to different persons. Even on chemical examination by Petroleum Company the seized commodity was found Kerosene oil not the diesel. On such basis subsequent investigation was also complete and supplementary charge sheet under Section 7 of the Essential Commodities Act was submitted and, as such, trial has also commenced.
9. The facts and circumstances, stated above, caused this case infructuous and, accordingly, it 8 is dismissed with a liberty to the petitioners to raise their points before the court below at appropriate stage during trial and the trial court shall decide the case on its own merit without being prejudiced of instant order and is directed to proceed expeditiously.
(Akhilesh Chandra, J.) Patna High Court, The 11th, August, 2010.
AAhmad/(N.A.F.R.)