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Allahabad High Court · body

1970 DIGILAW 292 (ALL)

Subimal Rudra v. Addl. District Magistrate

1970-08-10

GYANENDRA KUMAR, HARI SWARUP

body1970
ORDER Hari Swarup, J. - Subimal Rudra has filed this petition Under Article 226 of the Constitution read with Section 491 of the Code of Criminal Procedure for the issue of a writ in the nature of habeas corpus for setting him at liberty. 2. The Petitioner was working as an agent of M/s. A.H. Wheeler and Company (P) Limited, Allahabad (hereinafter called the company), for running a book-stall at Gauhati railway station in Assam. In course of dealings with the said agent, the company discovered that Subimal Rudra had fraudulently and dishonestly made up the sale (sic) with the intention that the said (sic) statement of account be used for the purpose of cheating. They also found that Subimal Rudra used as genuine those sale accounts, knowing and having reason to believe that they were 'forged'. Therefore, on October 23, 1968 the company lodged a first information report with the Inspector-in-charge, Police Station Cannington, Allahabad, alleging that Subimal Rudra, as their agent at Gauhati railway station, had done the acts mentioned above and that he, in his capacity as agent of the complainant company, having been entrusted with books, magazines and other literature, had committed criminal breach of trust in respect of the said property and its sale proceeds. The manner in which, according to the informant, the criminal breach of trust was committed was given in the first information report. It is not necessary to repeat the details which are given in the first information report. But in substance the allegations are that the sale accounts do not correctly disclose the transactions and that by incorrectly mentioning different items in the accounts, more money was made available to the agent by way of commission etc. than was really due to him. These amounts were said to have been misappropriated by Subimal Rudra. Accordingly, it was alleged in the first information report that Subimal Rudra, as agent of the company, had, in the manner given in the report, committed 'official breach of trust' and had misappropriated various amounts. A request was made in the first information report that a case Under Sections 409/468/471 IPC may be registered and investigation against Subimal Rudra be made. 3. According to the terms mentioned in the first information report, Subimal Rudra was to get supplies of books and other literature and run the bookstall at Gauhati railway station. A request was made in the first information report that a case Under Sections 409/468/471 IPC may be registered and investigation against Subimal Rudra be made. 3. According to the terms mentioned in the first information report, Subimal Rudra was to get supplies of books and other literature and run the bookstall at Gauhati railway station. Inter alia, he was required to submit a detailed account of the sale proceeds of the preceding month before the 6th day of each succeeding month, to the company's head office at Allahabad. The agent was also required 'to remit the sale proceeds for every calendar month personally to the company's head office at Allahabad by money order or by depositing the same in the local bank in the company's account' meaning (sic) that the agent, Subimal Rudra, (sic) perform the following acts: (1) To run a book-stall at Gauhati. (2) To send the statement of accounts of sales to Allahabad, and (3) To remit the sale proceeds by money order to the company's head office at Allahabad or to deposit the same in some local bank in the company's account, that is, in some bank at Gauhati. 4. On the basis of this first information report investigation was made by the police at Allahabad and proceedings Under Sections 87 and 88 Code of Criminal Procedure were taken against Subimal Rudra. He was ultimately taken into custody but later on released on bail. The Petitioner filed an application in this Court u/s 561-A Code of Criminal Procedure but the same was rejected on 23-4-1970, The learned single Judge, who decided the application, held that in the absence of full facts being on the record it was not possible for this Court to decide if the Magistrate at Allahabad had jurisdiction to take cognizance of the offence at Allahabad or not. The Court further held that it was not possible to say that the first information report did not disclose any offence. 5. The Petitioner has now filed the present petition Under Article 226 of the Constitution and has contended that on the allegations made in the first information report and on the material placed before the Magistrate, (ADM (j) Allahabad) no offence as alleged could be said to have been committed within the jurisdiction of the Allahabad court. 5. The Petitioner has now filed the present petition Under Article 226 of the Constitution and has contended that on the allegations made in the first information report and on the material placed before the Magistrate, (ADM (j) Allahabad) no offence as alleged could be said to have been committed within the jurisdiction of the Allahabad court. The Petitioner has, therefore, submitted that his detention by an order of Allahabad Court is without jurisdiction. 6. A counter affidavit was filed by Shri K.B. Verma, Senior Sub-Inspector of Police of police station Cannington, Allahabad, who had investigated the case. According to his affidavit it was found on investigation that Subimal Rudra had submitted false accounts to the company's head office at Allahabad for the purpose of cheating the company, in his capacity as an agent of the company and had committed criminal breach of trust in respect of the property entrusted to him by the company and its sale proceeds. From the first information report as well as from the affidavit filed by the Investigating Officer it is clear that Subimal Rudra performed no act in Allahabad which may amount to an offence Under Sections 409/468/471 IPC. On the basis of the report made by the police to the criminal court u/s 190 Code of Criminal Procedure the cognizance appears to have been taken by the Magistrate, (ADM (J) Allahabad). The Government Advocate appearing for Respondents Nos. 2 and 3 has produced before us the challan which has been submitted by the police in the court of the ADM (J) for taking action against the Petitioner Subimal Rudra. The challan of case No. 384 mentions "The accused as an agent of the company of Allahabad prepared false accounts and thus cheated the firm. Offence is proved against him and as such he is being challaned to court." The offences for which the Petitioner has been challaned are mentioned to be those contained in Sections 409, 468 and 471 IPC. The learned Government Advocate has also produced before us a copy of the warrant on the basis of which the Petitioner Subimal Rudra was remanded to jail custody u/s 344 Code of Criminal Procedure. This warrant again discloses that the Petitioner was charged for offences Under Sections 409, 468 and 471 and that he was required to be detained for his trial for the offences aforesaid. This warrant again discloses that the Petitioner was charged for offences Under Sections 409, 468 and 471 and that he was required to be detained for his trial for the offences aforesaid. The challan and the warrant of remand show that the Petitioner is being detained for trial of the offences Under Sections 409, 468 and 471 IPC and the act which is assigned to him, is that he prepared false accounts in order to cheat the firm. 7. Primarily the accounts are prepared and maintained by the Petitioner, Subimal Rudra, at Gauhati. The books and literature of the complainant were entrusted to the Petitioner in his capacity as agent in Gauhati. The misappropriation, if any, was done by him in Gauhati. He did not perform any act within the jurisdiction of the Allahabad court which might amount to an offence u/s 409 IPC. No property was entrusted to him in Allahabad nor was any dominion over any property given to him in Allahabad. He did not convert to his own use or dishonestly use or dispose of the property entrusted to him in violation of any contract within the jurisdiction of the Allahabad court. All alleged acts of entrustment, misappropriation or of illegal conversion, which are attributed to Subimal Rudra could have been committed by him only in Gauhati and none has been alleged in the first information report to have been committed in Allahabad. Subimal Rudra cannot, therefore, be detained for his trial in Allahabad for an offence u/s 409 IPC on the basis of the first information report lodged by the company or the consequential challan submitted by the police on that basis. Even if all the facts alleged are accepted to be correct Subimal Rudra cannot be said to have forged any document. Forgery has been defined in Section 463 IPC and Section 464 defines the making of a false document. On the facts on record, therefore, Subimal Rudra cannot be said to have committed any offence punishable Under Sections 468 or 471 IPC. Sending of a false statement of accounts cannot amount to forgery and in no case can receiving of such false statement in Allahabad give jurisdiction to a criminal court in Allahabad to detain the Petitioner for trial of offences Under Sections 409, 469 and or 471 IPC. 8. Sending of a false statement of accounts cannot amount to forgery and in no case can receiving of such false statement in Allahabad give jurisdiction to a criminal court in Allahabad to detain the Petitioner for trial of offences Under Sections 409, 469 and or 471 IPC. 8. The detention of the Petitioner Subimal Rudra, for the trial of offences Under Sections 409, 468 and 471 IPC in case No. 384 of the court of ADM (J) Allahabad cannot, therefore, be justified and the Petitioner is entitled to be set at liberty. 9. An application was made on behalf of the company for its being impleaded as a party to this case and for bringing on record a counter affidavit filed on its behalf. Another application was subsequently filed by one A.C. Banerjee, Managing Director of the company praying that the case may also be considered as if an offence u/s 477A IPC had been committed. Both the applications are, however, liable to be rejected. Petitioner Subimal Rudra was taken into custody on a report submitted by the police and he was remanded to jail custody by the order of the ADM (J) Allahabad. As such he is being detained by the Superintendent of Naini Central Jail, Allahabad. The company and/or its Managing Director are, therefore, not necessary parties in this petition for the issue of a writ in the nature of habeas corpus. Further as the challan was filed against the Petitioner for having committed various offences Under Sections 409, 468 and 471 IPC and the warrant issued by the ADM (J), Allahabad for keeping the Petitioner in the jail custody was also for his trial Under Sections 409, 468 and 471 IPC it is irrelevant whether the Petitioner Subimal Rudra had or had not commit by offence u/s 477-A IPC in (sic) as he has not been challaned for trial for any offence under that section nor is he being detained in jail custody for the trial of that offence. The applications of the company and A.C. Banerjee are, therefore, rejected. 10. In the result the petition is allowed. The applications of the company and A.C. Banerjee are, therefore, rejected. 10. In the result the petition is allowed. Let a writ in the nature of habeas corpus issue directing the opposite parties to set Subimal Rudra at liberty from the custody in which he is being held on the basis of the warrant issued by the ADM (J), Allahabad for his trial in case No. 384 Under Sections 409, 468 and 471 IPC. The Petitioner is already on bail and need not surrender. His bail bonds are discharged.