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2011 DIGILAW 1324 (RAJ)

Ram Avtar Vijay v. State of Rajasthan

2011-07-07

MEENA V.GOMBER

body2011
Hon'ble Dr. GOMBER, J.—By way of this Criminal Misc. Petition filed under Section 482 of the Code of Criminal Procedure, the petitioners, accused herein, have sought quashment of criminal proceedings in Criminal Case No. 162/06 (185/89) arising out of FIR No. 138/87 registered at Police Station Nayapura, Kota for offence under Section 409 IPC pending before the Court of Additional Chief Judicial Magistrate No. 3, Kota. 2. Briefly stated, facts of the case relevant for the purpose of disposal of the present petition, are that the petitioners Ramavtar Vijay and Bal Mukund Shringi were posted in Kota Depot of the Rajasthan State Road Transport Corporation as Accountant and Junior Accountant respectively during the period 1.1.1986 to 31.12.1986. 3. Satyanarain, Depot Manager of the Rajasthan State Road Transport Corporation, Kota had filed a written report before the Police Station Nayapura, Kota on 2.5.1987 alleging that Sohan Lal, Booking Clerk at Kota Deport, had embezzled a sum of Rs. 2,62,799/- by selling tickets. It was also alleged that the petitioners being Accountant and Junior Accountant at the relevant time, neglected the performance of their duty, therefore, they also committed an offence under Section 409, 120B and 109 IPC. 4. After completion of investigation, charge-sheet came to be filed against the petitioners and others for the offence punishable under Section 409 read with 109 IPC. 5. After hearing the charge arguments, the learned trial Court framed charges against the accused petitioners under Section 409 and 109 IPC. 6. One of the accused namely Abdul Haq Ansari, feeling aggrieved of the order of framing charge, approached this Court by filing S.B. Criminal Revision Petition Nos. 173/94, 174/94, 176/94 and 178/94, which were allowed by this court vide order dated 24.5.1995 and the charges framed against him were quashed. 7. Learned counsel for the petitioners submits that Abdul Haq Ansari's case decided by this court squarely covers the matter before this court in issue. 8. I have heard the learned counsel for the petitioners and also the learned Public Prosecutor and have carefully perused the material available on record. 9. 7. Learned counsel for the petitioners submits that Abdul Haq Ansari's case decided by this court squarely covers the matter before this court in issue. 8. I have heard the learned counsel for the petitioners and also the learned Public Prosecutor and have carefully perused the material available on record. 9. The argument of learned counsel for the petitioners was that as per the report lodged by Satyanarain, Depot Manager, the embezzlement was allegedly committed by Booking Clerk Sohan Lal and so far as the petitioners are concerned, at best it could be a case where some negligence could be attributed to them while discharging their duties as Accountant and Junior Accountant in the Rajasthan State Road Transport Corporation, Kota, but cannot be said to have committed any offence punishable under Section 409 with the aid of Section 109 IPC. It was submitted that all the four revision petitions filed by Abdul Haq Ansari were allowed by this Court and the decision in Ansari's case squarely covers the matter in issue. Referring to the case Abdul Haq Ansari vs. State of Rajasthan, 1995 RCC 433, it was submitted that since last 22 years the petitioners are facing agony of trial and they are now on the verge of retirement and the co-accused Abdul Haq Ansari on exactly similar charges, has been given relief by this Court by quashing the charges under Sec. 409 read with 109 IPC. The case of the petitioners requires consideration and proceedings pending against them deserve to be quashed. 10. Per contra, learned Public Prosecutor vehemently opposed the submissions of the petitioners' counsel and submitted that on account of negligence on the part of the petitioners, the Booking Clerk Sohan Lal could embezzle a sum of Rs. 2,62,799/-, therefore, it cannot bee said that the petitio-ners have not helped the accused Sohan Lal in aiding to commit the offence. 11. I have carefully considered the submissions and looked into the legal provisions in this regard. Since the petitioners have been charged for abetting the offence, therefore, it will be proper to deal with the relevant Section in this regard. 11. I have carefully considered the submissions and looked into the legal provisions in this regard. Since the petitioners have been charged for abetting the offence, therefore, it will be proper to deal with the relevant Section in this regard. Section 107 IPC defines abetment of a thing, which reads as under:- "Abetment of a thing- A person abets the doing of a `thing' who- First-Instigates any person to do that thing; or Secondly- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing or; Thirdly- Intentionally aids by any act or illegal omission, the doing of that thing." 12. As is clear from above, a person is said to abet the doing of a thing if he/she instigates the other person to do that thing, engages himself in any conspiracy for the doing of that thing. 13. Taking the accusation and evidence on their face value the case against the petitioners does not fall either in First or Second Clause of Section 107 IPC. For application of the Third Clause, the aid by an act or illegal omission should be intentional. The law is well settled on this score that mere giving an aid unintentionally will not make the act as an abetment of offence, if the person who gave the aid by omission did not know that an offence was being committed or contemplated. There should be intention to aid an offence or to facilitate the commission of an offence. In the absence of this ingredient no criminal liability can be fastened on the petitioners. Though, it may be a case for Departmental Enquiry, but in no case a criminal liability can be fastened on them. The supervisory functions of the petitioners did not include checking of a stock register of the Booking Clerk and of the fact whether the sale amount of tickets was deposited by him or not. 14. In the entire report lodged by the Depot Manager, no act has been assigned to the present petitioners. The accusation made against the accused petitioners is that they abetted the offence. However, there is nothing on record to show that they rendered any assistance to the main accused to commit the offence. 14. In the entire report lodged by the Depot Manager, no act has been assigned to the present petitioners. The accusation made against the accused petitioners is that they abetted the offence. However, there is nothing on record to show that they rendered any assistance to the main accused to commit the offence. Neither has there been anything on record that they had any intention to aid one of the accused Sohan Lal to commit the crime. The allegation against the petitioners at the most is that they did not supervise properly. If that be so, in the above circumstances it cannot be said that petitioners have committed an offence punishable under Section 409 IPC. Moreover, in the similar set of facts and in the similar FIR, co accused Abdul Haq Ansari has already been granted relief by this court, therefore, considering the matter from this angle also, I find that it is a fit case where the proceedings pending against the accused petitioners require to be quashed as it is an abuse of the process of law and the charge framed against the accused petitioners requires to be quashed. 15. Resultantly, the petitioners succeed. The charge framed against the accused petitioners namely Ramavtar Vijay son of Ram Niwas Vijay and Bal Mukund Shringi son of Nand Ram Shringi under Section 409 read with 109 IPC by the trial court levelled vide its order dated 6.11.1993, is quashed. The petition stands disposed.