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Madhya Pradesh High Court · body

2000 DIGILAW 980 (MP)

Shrikant Pandey v. State Of M. P.

2000-09-06

S.C.PANDEY

body2000
ORDER S.C. Pandey, J. 1. This revision is directed against the order dated 9-5-2000 passed by the Chief Judicial Magistrate, Raisen in M.J.C. No. 24/97 (now registered as Criminal Case No. 274/2000). By the impugned order, the learned Chief Judicial Magistrate, Raisen has taken cognizance of an offence under Section 409 of the Indian Penal Code and Criminal Case No. 274/2000 has been registered against the applicant Shrikant Pandey. The applicant requires this Court to quash the impugned order dated 9-5-2000. 2. The facts of this case indicate that the applicant was posted as Head Constable in Police Lines, Raisen. He was temporarily placed as incharge of the cash box on or about 1-5-1992. It appears that out of Rs. 60,000/- received by the applicant in cash box, Rs. 32,000/- were found short. The applicant was given custody of the cash box and he was required to put lock alongwith a seal in the cash box. When the cash box was opened, apart from the applicant, another Head Constable Shankar Rao was found to have entered the room where the cash box was kept. When the Reserve Inspector, Police Lines, Raisen came back from Bhopal to the Police Lines, Raisen, it was found that the cash box was not properly locked and there was a shortage of Rs. 32,000/-. Accordingly, a F.I.R. was lodged by the Reserve Inspector and Crime No. 136/92 was registered for offence under Section 380 of the Indian Penal Code. Thereafter, an investigation went on and the person guilty of the offence could not be found. The investigating agency did not suspect that it was the applicant who might have stolen or misappropriated the amount from the cash box. On 16-12-1997, a report in Crime No. 136/92 was filed in the Court of Chief Judicial Magistrate, Raisen and this final report did not accuse any person of any offence. Thereafter, the learned Magistrate examined two witnesses by way of further investigation; one was Shri C.S. Samual, the Reserve Inspector, Raisen, P.W. 1 and another was Shri Shankar Rao, the Head Constable, P.W. 2. After recording the evidence, an offence under Section 409 of the Indian Penal Code was registered against the applicant. 3. Thereafter, the learned Magistrate examined two witnesses by way of further investigation; one was Shri C.S. Samual, the Reserve Inspector, Raisen, P.W. 1 and another was Shri Shankar Rao, the Head Constable, P.W. 2. After recording the evidence, an offence under Section 409 of the Indian Penal Code was registered against the applicant. 3. In this revision, it has been argued by learned counsel for the applicant that there was further material placed by the prosecution to the final report made under Section 173 of the Code of Criminal Procedure. The evidence of P.W. 1, Shri C.S. Samual does not say anything to the material on record except what is said in Paragraph 3 of the deposition. After submitting the final report against the applicant, the Reserve Inspector Shri C.S. Samual stated that in his opinion, the applicant should be punished for negligence and there should be some action taken- up against him, and he further made a statement that the applicant had misappropriated the amount. According to the learned counsel for the applicant, these words are opinion of the Reserve Inspector and do not form any additional material to the facts of this case. Similarly, the statement of Shri Shankar Rao, P.W. 2 was also referred to. He had also stated that there was a probability that the applicant might have removed the alleged amount from the cash box because the applicant is habitually a mischievous person. 4. Learned Panel Lawyer for the non-applicant/State has supported the impugned order and has argued that the evidence of the two witnesses aforesaid has added dimension to the case. Initially, the case was wrongly registered under Section 380 of the Indian Penal Code. The applicant should have been charged under Section 409 of the Indian Penal Code. 5. The simple question, to be decided in this revision, is if after filing of the final report under Section 173 of the Code of Criminal Procedure, the Court below should have registered an offence under Section 409 of the Indian Penal-Code against the applicant on the basis of the evidence of the aforesaid two witnesses recorded by it. It is clear that from the very beginning, there was no suspicion against the applicant either of theft or misappropriation of the amount in his custody. It is clear that from the very beginning, there was no suspicion against the applicant either of theft or misappropriation of the amount in his custody. All that was found, was that the lock was not properly put in the cash box and there was always a possibility of somebody else apart from the applicant to have removed the amount. It took five years for the police to find out that there is no case made out against the applicant and, therefore, a final report called Khatma was placed before the Chief Judicial Magistrate on 16-12-1997. In the opinion of this Court, learned counsel for the applicant is right in saying that whatever has been stated by P.W. 1, Shri C.S. Samual, the Reserve Inspector was based on merely his opinion, apart from the report. Similarly, the statement of P.W. 2, Shri Shankar Rao was also based on his opinion on the basis of the character of Shrikant Pandey, the applicant, who was alleged to be habitually mischievous person. This too was an opinion. Therefore, it can be safely held that there was no additional material placed by way of additional facts for taking a different view of the matter. 6. In view of this matter, the impugned order dated 9-5- 2000 is liable to be set aside and is accordingly set aside. The revision succeeds and is hereby allowed. The M. (Cr.) P. No. 441/2000 for grant of stay is hereby dismissed. 7. Criminal Revision allowed.