Allahabad High Court
Shashi Shankar Tiwari vs State Of U.P. Thru. Prin. Secy. Home ... on 25 November, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- APPLICATION U/S 482 No. - 8652 of 2022 Applicant :- Shashi Shankar Tiwari Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Secrett. Lko. And Another Counsel for Applicant :- O.P. Tiwari Counsel for Opposite Party :- G.A. Hon'ble Ajai Kumar Srivastava-I,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
In view of the order proposed to be passed, notice to the opposite party no.2 is dispensed with.
The instant application under Section 482 Cr.P.C. has been filed by the applicant for quashing the impugned order dated 26.09.2022 passed by learned Chief Judicial Magistrate, Unnao in Case No.254 of 2019 "State vs. Shashi Shankar Tiwari" arising out of Case Crime No.291 of 1999, under Sections 420, 467, 468, 471, 472, 413 I.P.C., Police Station Kotwali, District Unnao and also quashing the entire proceeding of Case No.254 of 2019 "State vs. Shashi Shankar Tiwari" arising out of Case Crime No.291 of 1999, under Sections 420, 467, 468, 471, 472, 413 I.P.C., Police Station Kotwali, District Unnao.
It is submitted by learned counsel for the applicant that though Section 323 Cr.P.C. vests power in the learned trial Court for passing such order, however, this has to be exercised in a judicious manner and only where the same is warranted in the facts of this case. His further submission is that no ingredient necessary to constitute the offence under Section 413 I.P.C. are present in this case. Therefore, the impugned order is palpably illegal and deserves to be set aside.
Per contra, learned A.G.A. has opposed the prayer by submitting that it is a discretionary power vested in learned trial Court to commit the case to the learned Sessions Court for trial in accordance with law.
Having heard learned counsel for the applicant, learned A.G.A. for the State and upon perusal of the record, it transpires that the first information report bearing Case Crime No.291 of 1999 came to be lodged under Sections 420, 467, 468, 471, 411 I.P.C., Police Station Kotwali, District Unnao. The charge sheet also came to be filed under Sections 420, 467, 471, 471, 411 I.P.C. However, on an application moved by the prosecution, learned trial Court has recorded a finding that it appears that the offences committed by the applicant also include offence under Section 413 I.P.C. Therefore, it took cognizance under Section 413 I.P.C. and has directed to commit this case.
Being germane to the controversy, Section 413 I.P.C. is quoted herein below :
"413 I.P.C.. Habitually dealing in stolen property.?Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Section 411 I.P.C. applies to a receiving or retaining stolen property. Section 413 I.P.C. applies to the habitual receiving or dealing with stolen property.
The four ingredients of the offence are :
"(i) that the articles stated to have been received by the accused were stolen property ;
(ii) that he received such articles ;
(iii) that he has been receiving them frequently or habitually ; and
(iv) that he was receiving them knowing or having reason to believe them to be stolen articles."
"Habitually dealing" in Section 413 I.P.C. means that there is evidence on record that there are other instances other than the present instance of the accused found to be indulging in the receiving and dealing of stolen property and he is facing trial.
Upon a close scrutiny of impugned order, this Court finds that the same does not indicate existence of any such material/ingredients necessary to constitute an offence under Section 413 I.P.C. Therefore, the order impugned cannot be sustained and the same is liable to be set aside which is hereby set aside.
It is directed that the learned trial Court shall decide such application under Section 323 Cr.P.C. a fresh having regard to the provisions contained in Section 323 Cr.P.C. and 413 I.P.C., expeditiously.
With the aforesaid observations, the instant application is finally disposed of.
Order Date :- 25.11.2022 Mahesh