KAMESHWAR PRASAD v. BHOLA NATH SHARMA — 1968 DIGILAW 96 (PAT)

JUDGMENT G. N. Prasad, J. - The petitioner is an accused in a complaint case now pending in the court of a Munsif-Magistrate, first class at Monghyr. The complaint against him was filed by Shri Bhola Nath Sharma, opposite party no. 1 on the 17th April, 1967. An inquiry into the complaint was made under Section 202 of the Code of Criminal Procedure and upon a perusal of the inquiry report the learned Sub-divisional Magistrate took cognizance on the 16th August, 1967, of an offence alleged to have been committed by the petitioner under Section 420 of the Indian Penal Code. The relevant facts are these : 2. The complaint is the agent or representative of a firm of Scrap Contractors. On 30th December, 1965, the firm purchased at an auction sale discarded locomotives and wagons belonging to the Eastern Railway Administration at Jamalpur for the value of rupees five lacs and twenty five thousand. Under the terms of the contract of sale, the firm had to take away only the ferrous materials of the engine etc. after dismantling them and not the brass or copper materials thereof. The scrap materials in question were being transported in a wagon towards Howrah. On the way they were intercepted on the 5th of July, 1966, by the Railway Protection Force. Upon examination by the Government Railway Police it was discovered that besides the ferrous materials certain brass and copper materials were also being carried away. Accordingly a case under Sections 409, 379, 411 and certain other sections of the Penal Code was instituted by the police against certain people of the firm. During the pendency of the police case referred to above the present complaint was filed against the petitioner, who at the relevant time was posted at Jamalpur as Deputy Chief Mechanical Engineer, Workshop, Eastern Railway. In the complaint it was stated that after the removal of the alleged brass materials the other scrap materials belonging to the complainant were released by the G. R. P. and R. P. F. and upon inquiry by the complainant both the G. R. P. and R. P. F. stated that they had no objection to the removal of the released scrap materials. The Officer incharge of the R. P. F. at Jamalpur asked the complainant to get the scrap materials which were lying in the Railway yard reloaded and removed from there. The Officer incharge of the R. P. F. at Jamalpur asked the complainant to get the scrap materials which were lying in the Railway yard reloaded and removed from there. On being approached the Deputy Controller of Stores incharge of the scrap goods and stores at Jamalpur also indicated that he had no objection to the articles in question being taken away by the complainant. Thereupon an indent for wagon was made by the complainant and that was forwarded by the R. P. F. officer. Accordingly, the Store Goods Clerk informed the Inspector of the R. P. F. to depute his men so that the loading might be done in their presence. Then follow these paragraphs in the complaint petition which have bearing upon the offence alleged to have been committed by the petitioner. They are Paragraphs 11, 12, and 13 which read as follows:- 11. That when the loading started, the Dy. C. M. E. Railway 'Workshop, Jamalpur the accused abruptly without any reason simply to harm the complainant's firm stopped the loading. 12. That since then the complainant approached the accused on several occasions and requested him verbally to deliver his goods but the accused did not do so. 13. That the accused committed this act of mischief and breach of trust to put the complainant's firm to unlawful loss. The goods are lying scattered uncared. It is being damaged and its value and prices are going down every day. 3. Learned counsel for the petitioner contends that the allegation contained in the petition of complaint disclose no criminal offence against the petitioner. Learned counsel further contends that no prosecution could have been instituted against the petitioner who is a public servant in the employment of the Central Government without the requisite sanction under Section 197 of the Code of Criminal Procedure. 4. It is manifest that upon the facts stated in the petition of complaint no offence either of criminal breach of trust or of cheating has been disclosed against the petitioner. There was no entrustment of any property to the petitioner, nor there was any false representation of any fact made by him to the complainant or to anybody else. Therefore, the order of the learned Magistrate taking cognizance of an offence under Section 420 of the Indian Penal Code cannot be supported. 5. There was no entrustment of any property to the petitioner, nor there was any false representation of any fact made by him to the complainant or to anybody else. Therefore, the order of the learned Magistrate taking cognizance of an offence under Section 420 of the Indian Penal Code cannot be supported. 5. Learned counsel for the opposite party contended that an offence of mischief within the meaning of Section 425 of the Code has been disclosed in the petition of complaint. Learned counsel has drawn my attention to a copy of a letter dated the 23rd March, 1967, addressed by the Inspector R. P. F. Jamalpur Workshop, to the Store Goods Clerk which read as follows:- As per telephonic talk with DCME Jamalpur on date 23/3 regarding loading of materials (iron Scrap) which was unloaded from Wagon No. NR 64924 on 5th July 66, the D. C. M. E. desires that those materials should not be handed over to the party concerned. Therefore, it is requested in view of the D. C. M. E's instruction over to cancel the indent of supplied Wagon No. CR. 53514 to M/s Bhagwan Das Mangal Prasad as the material will not be loaded till further orders. The contention of the learned counsel for the opposite party is that the offence of mischief lay in the act of the petitioner in passing an order whereby the loading of the scrap materials in the wagon was stopped. It is urged that by passing such an order the petitioner had caused the destruction of the scrap materials in question or at least caused diminution of their value or utility thereby falling within the mischief of the offence defined in Section 425 of the Indian Penal Code. I am unable to accept this contention as correct. The order alleged to have been passed by the petitioner by itself had not caused any destruction or diminution in the value or utility of the property. In my opinion the destruction or diminution of the value and utility of any property as contemplated by Section 425 must be the immediate or proximate consequence of the act alleged to be criminal. Here there was no destruction or diminution in value of the scrap materials by reason of the stop order alleged to have been passed by the petitioner. Here there was no destruction or diminution in value of the scrap materials by reason of the stop order alleged to have been passed by the petitioner. In my opinion no criminal offence has at all been disclosed in the petition of complaint against the petitioner. Therefore, the present prosecution cannot legitimately be allowed to continue. In this view of the matter I do not propose to express any opinion on the question of want of sanction which has been raised on behalf of the petitioner. 6. In the result, I quash the proceeding which has been taken against the petitioner upon the complaint of opposite party no. 1 and made the rule absolute. Petition allowed.