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1989 DIGILAW 436 (PAT)

Vijay Kumar Khanna v. State of Bihar

1989-12-12

S.N.JHA

body1989
JUDGMENT Surendra Narain Jha, J. The petitioner has prayed for quashing the entire criminal proceeding pending against him in connection with Gobindpur P. S. Case No. 13/1980 including the order dated 3-3-1983 whereby cognizance has been taken against the petitioner and one Sudama Singh under section 406 of the Indian Penal Code. The petitioner has also prayed for quashing of an order dated 26-7-1985 whereby charge has been framed under section 379 of the Indian Penal Code (for short ‘the Penal Code’) against him. 2. The facts which led to the filing of this application, in short, are that on 20-5-1978 the informant raided one coal depot where he seized 70 M. Tons of steam coal. It appears that in connection with the aforesaid seizure, a case under section 7 of the Essential Commodities Act, (for short 'the E. C. Act') was initiated against the petitioner bearing C.O. Case No. 59/78 and the seized coal was given in the Zimmanama of one Sri Sudama Singh. 3. The allegation against the petitioner in the aforesaid case was that he was carrying on business of coal without any licence. Moreover, the accused had not displayed the price list and stock position of coal as required under section 3 of the Bihar Essential Articles (Display of Prices & Stocks) Order, 1977. In the aforesaid case, the learned Magistrate after taking into consideration the oral evidence as well as the materials available on the record gave the following finding:- "Thus, considering the facts and circumstances discussed above, I find and hold that the prosecution has miserably failed to bring home the charge to the accused. Accordingly I find and hold the accused Vijay Kumar Khanna not guilty of the charge framed against him and as such I acquit him. He is also discharged from the liabilities of his bail bonds." 4. A copy of the aforesaid judgment is Annexure-2 appended to this application. 5. From perusal of the aforesaid judgment, it also appears that the learned Magistrate has observed that "the complainant should not have launched the prosecution against the accused without due and proper inquiry regarding the ownership of the coal depot. Had it been so, this accused could have been saved from unnecessary harassment. This prosecution of the accused appears to be vexatious and malaflde." 6. Had it been so, this accused could have been saved from unnecessary harassment. This prosecution of the accused appears to be vexatious and malaflde." 6. Thereafter, it appears that for the same occurrence the present prosecution was launched against the petitioner along with the said Sudama Singh in whose Zimmanama the coal was kept. The first information report was filed on 12-8-1980 for the occurrence alleged to have been committed on 28-10-1978. The cognizance was taken against the petitioner along with the aforesaid Sudama Singh as noticed above under section 406 and 379 of the Penal Code. The learned Magistrate vide order dated 26-7-1985 has also framed charge under section 379 of the Penal Code against the petitioner and under section 406 against one Sudama Singh which is under challenge in this application. 7. It was submitted on behalf of the petitioner that there is nothing to show that any case under section 406 of the Penal Code has been made out against the petitioner. Even the charges framed under section 379 is misconceived and fit to be quashed. 8. Admittedly the prosecution case is that the coal in question was seized at the time of raid of coal depot for which a case under section 7 of the E. C. Act, was initiated against the petitioner which ended in the acquittal. In E. C. Act, case, the prosecution miserably failed to prove the charge against the petitioner; that is to say the court came to the conclusion that the petitioner was not running the depot without any licence nor any violation of the Display Order was made. According to the learned Counsel, on the basis of the aforesaid findings the present case initiated against the petitioner and Sudama Singh is an abuse of the process of the Court. The learned counsel has also drawn my attention to the finding of the trial court in the aforesaid E. C. Act, case where it has been held that the entire prosecution case was vexatious and malafide and the petitioner was unnecessarily harassed. I find from Annexure-2 that the learned Magistrate has also awarded Rs. 1000/- as compensation to the accused which would be compensated by the complainant for his vexatious prosecution. In that view of the matter, if appears to me that the present prosecution is also malafide. 9. I find from Annexure-2 that the learned Magistrate has also awarded Rs. 1000/- as compensation to the accused which would be compensated by the complainant for his vexatious prosecution. In that view of the matter, if appears to me that the present prosecution is also malafide. 9. Quite apart, it was also contended that the court below has committed a serious error of law in so far as it failed to take into consideration that section 406 and 379 of the Penal Code are contradictory to each other and in that view of the matter, the entire prosecution of the petitioner is vitiated. 10. Section 406 of the Penal Code deals with the punishment for criminal breach of trust Criminal breach of trust has been defined in section 405 of the Penal Code. From reading of the aforesaid section, it appears that whoever being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law, he shall be charged with criminal breach of trust, 11. It was submitted on behalf of the petitioner that even assuming that the coal in question was entrusted to one Sudama Singh, he never misappropriated the same. The allegation has been made against the petitioner that he sold the coal in question. According to the learned counsel, in the main case the finding was that the prosecution was malafide and vexatious and it was launched only for harassment of the petitioner, then this case also be quashed on the aforesaid finding because the coal in question was seized without any proper enquiry and it was kept illegally in the Zimmanama of Sudama Singh. I find force in this submission. 12. The learned Magistrate vide order dated 26.7.85 has framed charge under section 406 against Sudama Singh and under section 379 of the Penal Code against the petitioner. It was submitted on behalf of the petitioner that the learned Magistrate has committed error of law in framing of charge against the petitioner in view of the finding as given in the main criminal case initiated under section 7 of the E.C. Act. 13. Where the Magistrate upon consideration of the police report, the documents sent with it, the examination of the accused. 13. Where the Magistrate upon consideration of the police report, the documents sent with it, the examination of the accused. if any, and hearing the parties as referred to in section 239 of the Code of Criminal Procedure (for short 'the Code') forms an opinion that there is ground for presuming, that the accused has committed an offence, he shall proceed with the trial by framing a charge against the accused as laid down in section 240 of the Code. It is well settled that for framing of the charge, the procedure as laid down under sections 239 and 240 of the Code has to be followed. Non-compliance of these provisions would vitiate the order. The provisions of sections 239 and 240 of the Code which have provided definite guide-lines that the Magistrate must observe and comply with before arriving at the conclusion of discharging the accused or framing charge against him, demand that the Magistrate is of course expected to apply his judicial mind to the facts of the case keeping throughout in view the essential ingredients of the offence for which the accused is sought to be charged. 14. In the instant case, as I have already indicated above that the finding of the learned Magistrate in the main case is that the entire prosecution was vexatious and malafide, in that view of the matter, I hold that the Magistrate has not applied his judicial mind so far as framing of charge against the petitioner is concerned. The charge has been framed on 26.7.85 whereas the petitioner was acquitted in the main case in the year, 1982 itself vide order dated 25.3.82. Therefore, this fact should have been considered by the learned Magistrate while considering the materials available on the record. The learned Magistrate has also not applied his judicial mind to the ingredients of the offence. 15. Taking into consideration all the facts and circumstances of the case mentioned above, I am of the opinion that the framing of the charge against the petitioner is illegal and fit to be quashed. Accordingly this application is allowed and the entire criminal proceeding against the petitioner in Gobindpur P. S. Case No. 13/1980 (G.R. No. 257l/ 80) is hereby quashed. HP. Application allowed.