Naveen Yadav vs The State Of Bihar on 4 September, 2013

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Patna High Court - Orders

Naveen Yadav vs The State Of Bihar on 4 September, 2013

1. This in an application for quashing the order dated 20. 04. 2011, passed by the Chief Judicial Magistrate, Kishanganj, in G.R. No. 179 of 2011 arising out of Kishanganj P.S. Case No. 60 of 2011 by which cognizance has been taken for offence under Sections 413, 414 and 120 B of the Indian Penal Code.

2. The prosecution case as alleged in the First Information Report that the informant (Officer-in-Charge) Kishanganj while returning to the police station after pursuing the arrest accused in pending case, he got a secret information that a Tata Star Bus having bearing no. BR 37 B 4227 which runs from Jogangolia to Kishanganj 2 is looted smuggled articles and on the said information he reached Paschimparti and found that bus was standing there, then he asked the driver of the said bus, but was reluctant to disclose and then disclosed that in the said bus there are fourteen plastic bags containing three quintal of Supari and he always bring those Supari from Jogangolia. Thereafter, in presence of two independent witnesses, namely, Shankar Mandal and Cheru Kumar, he inspected the bus and found that said article kept under the seat and so he seized the articles. The driver disclosed that his name as Md. Maqbal and disclosed that owner of the vehicle is Nabin Yadav and conductor-khalasi disclosed his name as Sunil and they have carried down the article after instruction of the Malik and when he was asked to show papers then he did not show any paper and hence arrested the driver and khalasi for smuggling of Supari from one place to another and lodged a case for offence under Sections 413 and 414 read with Section 120B of the Indian Penal Code and hence from the allegation it is 3 apparent that allegation has been made for carrying Supari from one place to another by the bus clandestinely.

3. On the self statement of S.H.O., Kishanganj, F.I.R. was lodged and police after investigation submitted charge sheet for offence under Sections 413 and 414 of the Indian Penal Code on which cognizance was taken.

4. Learned counsel for the petitioner submits that there is nothing in the F.I.R. nor there is any material collected during investigation to show that articles seized was a theft article or smuggled articles and hence offence under Sections 414 and 413 I. P. C. is not made out. It is further contended that order taking cognizance and continuation of the prosecution is abuse of the process of the court and hence in the interest of justice impugned order and criminal prosecution is required to be quashed. He has placed reliance in decision reported in PLJR 1989

234.

5. Learned counsel for the State however 4 submits that offence as alleged makes out an offence and police after investigation submitted charge sheet and cognizance has been after perusal of the record.

6. Hence on the respective submission, question for consideration whether offence under Sections 413 and 414 I.P.C. is made out or not. However, it is relevant to quote Section 414 I.P.C.

" 414. Assisting in concealment of stolen property.- Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".

Hence ingredient to establish an offence under Section 414IPC is (1) voluntarily assists in concealing or disposing of or making away property (2) knowledge or reason to believe that the property is stolen property. The "word voluntarily assists" is impregnant with the meaning that there is more than one person as a person to assist, there must be a person to be assisted. There may be a person who commits theft and there may be a person who receives the stolen property, but there may be a 5 person who assists in disposal of the property. A person who has committed theft may be charge under Section 379 I.P.C. a person who receive property found in possession of property may be charge under Section 411 I.P.C., but a person who assists for disposing of the property is liable for charge under Section 414 I.P.C. Hence if a person found to be a person against whom there is material to suggest that he was engaged in assisting the disposal of theft property then he may be liable as per first requirement.

The second requirement is the knowledge or reason to believe that the property to be stolen property which is subject matter for offence under Section 414 I.P.C. However, knowledge means mental cognition and it emphasis that the person dealing with the property recognises that it is a theft property and word "reason to believe" means there is existence and presence of circumstance on which it can be inferred that accused has knowledge of the fact. The word "reason to be believed" 6

indicates that under the surrounding circumstance and the circumstance of recovery of property are, as such, that a reasonable man must have felt convince in his mind in all probabilities that the property with which he was dealing must be a stolen property. If it is sufficient to show that circumstance was, as such, to make him believe that the property is a stolen property and knowledge means mental cognition. It is not necessary for a person to be convicted under Section 414 I.P.C. that another person must be traced out and convicted for an offence of committing theft. Now it is relevant to para 14 of the decision reported in A.I.R. 1964 SC page 170;

".,.........Section 414, I.P.C. makes it an offence for a person to assist voluntarily in stealing or disposing of or making away with property which he knows or has reason to believe to be stolen property. It is not necessary for a person to be convicted under Section 414 I.P.C. that another person must be traced out and convicted of an offence of committing theft. The prosecution has simply to establish that the property recovered is stolen property and that the appellant provided help in its concealment and disposal".

In this regard it is also relevant to quote 7 AIR 1928 Calcutta page 264;

".......It was observed by Mr. Justice Melvill in the case of Empress v. Rango Simaji (1), that it was not sufficient to show that the accused was careless or that he had reason to suspect that the property was stolen or that he did not make sufficient enquiry to ascertain whether it had been honestly acquired and that the word "believe" in Section 414 I. P.C. is a very much stronger word than "suspect"

and that it involved the necessity of showing that the circumstances were such that a reasonable man must have felt convinced in his mind that the property with which he was dealing must be stolen property. ........."

The word "reason to be believe" in Section 26 of the Indian Penal Code defines- if there is sufficient cause to believe on the basis of surrounding circumstance, it can well be inferred that thing, exists and hence from the surrounding circumstance it can be inferred that there is reason to believe that the property is theft and that is sufficient for compliance under Section 414 I. P. C. and it is not necessary to convict a person for theft under Section 379 I. P. C. for conviction under Section 414 I. P. C.

7. Hence applying the principle and taking into consideration the allegation and material, the only material available that three quintal of Supari was recovered from the said bus in fourteen plastic packets from the bus under the seat of the passengers and the bus 8 driver and khalasi/conductor disclosed that they carried the article on the instruction of Malik and the bus stands in the name of Baby Devi, the wife of Naveen Yadav, but the bus runs under the supervision of Naveen Yadav and Naveen Yadav manage or supervise the same and to earn more fare he used to bring Supari. On this fact it is alleged and opined that said Supari was smuggled and is being carried clandestinely from one place to another in conspiracy of Naveen Yadav, Md. Maqbul and Sunil as alleged in the First Information Report. However, except this there is no other circumstance or evidence in the case diary. Hence the only material against the petitioner is statement of khalasi and bus driver before the police who are co-accused in the case that they carry the supari at the instance of Naveen Yadav.

8. However reliance has been placed in decision reported in PLJR 1989 page 234; where the fact remains that two persons brought four sliver bars duly stamped as Bar No. 1, 2, 3 and 4 weighing 3375 9 gms, 4077 gms, 2826 gms and 3818 gms each carrying two silver bars and the police suspected it to be the stolen property and lodged First Information Report. In course of interrogation the said two persons disclosed that carrying the silver bars en route to Delhi on behalf of the firm, namely, M/s Hanutram Jawahirlal & another and immediately showed the original folio of the silver transport voucher for sending through their commission agent and hence it was argued that there was enough material on the record to show that those articles were not stolen property because there is valid transport voucher issued by the custom officer under the Custom (Amendment) Ordinance and Rules framed thereunder and hence it was held that Section 414 I. P. C. is not made out at all and police during investigation also not found any material and hence it was held that in cannot be inferred that the article in question were stolen property.

9. Hence the case reported in PLJR 1989 page 10 234 is quite different footing where the material seized from the persons at the outset disclosed bonafide of their possession of the silver bar and claim it with valid document and in that circumstance no material to infer or knowledge or reason to believe that the articles were carried by them were theft article and held that allowing the proceeding be abuse of process of the Court. But here the fact that there is something different from the fact reported in 1989 PLJR where khalasi and driver when interrogation three quintal supari has been recovered from the bus and they did not produce any document regarding supari nor disclose to whom supari is belong and to whom its required to be delivered. However, it is true that three quintal of supari were recovered from the bus and police after investigation, though, submitted charge sheet, but could not make out during investigation about any material to suggest that seized supari either smuggled article or theft property except that the driver and khalasi disclosed that they carry supari at the instance of the 11 Naveen Yadav, the owner of the bus. Further there is no material regarding indulgence of Naveen Yadav except statement of co-accused driver and khalasi. Further Naveen Yadav is not bus owner rather bus runs in the name of his wife, namely, Baby Devi, as disclosed by the co-accused that they transported the supari on the instruction of the Naveen Yadav. Hence, though, article seized from the bus in possession of the conductor and the driver, but there is no legal evidence against the petitioner, namely, Naveen Yadav, for his indulgence except there is statement of co-accused driver and khalasi before police which is inadmissible in evidence and hence there is no legal evidence about conspiracy nor evidence to suggest that petitioner was assisting in the disposal of property and had "reason to believe" that the property was theft property and even on material to have reasonably doubt from the circumstance.

10. So far offence under Section 413 I. P. C. is concern, it is relevant to quoted below;

„413. Habitually dealing in stolen property- Whoever 12 habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment for live or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".

The word "habitually" under Section 413 I. P.C. indicates that a person who is in habit of doing thing repeatedly. However, to establish a repeation it is not sufficient to the lodge in the same F.I.R. that the person has repeated the occurrence time and again, but there must be evidence that he has done the occurrence by filing separate case and further it unless it can be proved that petitioner has been convicted earlier in the case it cannot be said that the person is doing act habitually.

Section 120 B is applicable when there is evidence of unity of mind of two or more persons for doing a crime and hence it must be established that two or more persons agreed to do an illegal act or illegal act by illegal means with unity of mind.

11. Hence having regard to the fact that the driver and khalasi disclosed that they carry the supari regularly at the instance of Malik and on that statement it without lodging of different F.I.R. for repetition of the occurrence and conviction for such offence a charge under Section 413 I.P.C. is neither proper nor reasonable. Hence the order taking cognizance under Section 413 IPC. 13

against the petitioner is not maintainable and also there is no evidence except the statement of the accused that there was conspiracy and unity of mind to attract conspiracy.

12. For the reasons stated above, since the allegation made and evidence collected even taken on face value does not makes out an offence under Sections 414, 413 and 120B of the Indian Penal Code against the petitioner, hence order taking cognizance and prosecution against the petitioner in Kishanganj P.S. Case No. 60 of 2011 is not sustainable and are hereby quashed against the petitioner and the petition is allowed.

m.p.                        (Gopal Prasad, J)

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Patna High Court - Orders