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Himachal Pradesh High Court · body

2011 DIGILAW 2065 (HP)

Devender Pal Singh v. State of H. P.

2011-04-06

DEV DARSHAN SUD

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JUDGMENT : Dev Darshan Sud, J The petitioner has challenged the order passed by the learned Additional Chief Judicial Magistrate, Court No.1, Mandi rejecting the submissions made on behalf of the petitioner that charges under Section 406 and 403 IPC have not been made out and that case is barred by limitation under the provisions of Section 468 Cr.P.C. 2. Prior to the institution of the present petition, Cr.MMO No. 51 of 2010 was instituted by the petitioner under Section 482 of the Code of Criminal Procedure praying that FIR 441 of 2006 (which is also subject matter of the present case) be quashed as no offence is made out against the petitioner. The petition was held as not maintainable. The Court ordered: “19.5.2010…….. Cr. MMO No. 51of 2010 The matter arising out of FIR No. 441 of 2006, registered in Police Station, Mandi has culminated into the police challan, which stands presented before the Judicial Magistrate at Mandi and the same is fixed for consideration of charge on 31.5.2010. The petitioner is at liberty to take all points at the time of consideration of charge which have been taken in this petition. Therefore, in view of this, when the alternative remedyis available to him and it is not a rarest of the rear case for the intervention of this Court, the present petition is not maintainable. Hence, dismissed. Cr.MP Nos. 172 and 173 of 2010 In view of the dismissal of the main petition, these application have become infructuous. As such, dismissed as infructuous………….” 3. The grievance of the petitioner in this petition is two fold, (a) that the Court has no jurisdiction to take cognizance of the offences as alleged against him as they are barred by limitation; (b) assuming that the case is not barred by limitation, no offences are made out against the petitioner, more especially, under Sections 403 and 406 IPC. 4. On the first aspect, what I find is that the learned trial Court has given its careful and anxious thought to the issue holding that the bar of limitation is not attracted. The learned Court holds that not only the petitioner was charged for offences under Sections 403 and 406 IPC but also under Section 420 IPC. 4. On the first aspect, what I find is that the learned trial Court has given its careful and anxious thought to the issue holding that the bar of limitation is not attracted. The learned Court holds that not only the petitioner was charged for offences under Sections 403 and 406 IPC but also under Section 420 IPC. Certain findings have been given by the learned Court with respect to the date of knowledge when the offence is committed and counted the period of limitation from that date. At this stage, I am not inclined to interfere on this count. If later on, after recording evidence, it is found that the offences are in fact barred by limitation, it is but obvious that the necessary consequences shall ensue. 5. On the second question, learned counsel appearing for the petitioner refers to the decision in Onkar Nath Mishra and others vs. State (NCT of Delhi) and another (2008) 2 SCC 561 to urge that at the stage of framing of charge some exercise of sifting the material has to be undertaken by the learned Court. The Court held: “11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence. 12. In State of Karnataka v. L. Muniswamy (1977) 2 SCC 299, a three-Judge Bench of this Court had observed that at the stage of framing the charge, the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. 12. In State of Karnataka v. L. Muniswamy (1977) 2 SCC 299, a three-Judge Bench of this Court had observed that at the stage of framing the charge, the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a person’s liberty substantially, need for proper consideration of material warranting such order was emphasised. 13. Then again in State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659, a three-Judge Bench of this Court, after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned; (ii) Sections 239 and 240 relatable to trial of warrant cases; and (iii) Sections 245(1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, states thus:(SCC p. 671), para 32) “32…..if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conlcusion is required to be that the accused has committed the ofence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought onr ecord by the prosecution has to be accepted as true at that stage.” (emphasis in original) 14. In a later decision in State of M.P. v. Mohanlal Soni (2000) 6 SCC 338 this Court referring to several previous decisions held that: (SCC p. 342 para 7) “7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.” (at p.565-566) 6. Learned counsel submits that this exercise has not been undertaken by the learned trial Court and therefore, the matter de serves to be reconsidered to see whether two offences namely Sections 403 and 406 IPC are made o u t or not. Learned counsel submits that this exercise has not been undertaken by the learned trial Court and therefore, the matter de serves to be reconsidered to see whether two offences namely Sections 403 and 406 IPC are made o u t or not. Learned counsel then refers to the decision of the Supreme Court in M/s Indian Oil Corporation vs. M/s NEPC India Ltd. and others AIR 2006 SC 2780 to urge that the admitted case of the prosecution is one of the hypothecation and in this view since the possession of hypothecated goods remains with the petitioner, no case of criminal breach of trust is made out. In particular, learned counsel has referred to principle laid down by the Court: “23. The second ground on which learned counsel for the appellant sought to distinguish Duncan Agro is that the said case dealt with a hypothecation deed creating a floating charge. Whereas the case on hand related to a fixed charge and therefore, the principle laid down in Duncan Agro will not apply. This contention is also without basis. The principle stated in Duncan Agro will not apply in regard to a types of hypothecations. It makes no difference whether the charge created by the deed of hypothecation is a floating charge or a fixed charge. Where a specific existing property is hypothecated what is created is a ‘fixed’ charge. The floating charge refers to a charge created generally against the assets held by the debtor at any given point of time during the subsistence of the deed of hypothecation. For example where a borrower hypothecates his stock-in-trade in favour of the Bank creating a floating charge, the stock-in-trade, held by the borrower as on the date of hypothecation may be sold or disposed of by the debtor without reference to the creditor. But as and when new stock-in-trade is manufactured or received, the charge attaches to such future stock-in-trade until it is disposed of. The creditor has the right at any given point of time to exercise his right by converting the hypothecation into a pledge by taking possession of the stock-in-trade held by the debtor at that point of time. The principle in Duncan Agro is based on the requirement of ‘entrustment’ and not with reference to the ‘floating’ nature of the charge. The second contention also has no merit. 24. The principle in Duncan Agro is based on the requirement of ‘entrustment’ and not with reference to the ‘floating’ nature of the charge. The second contention also has no merit. 24. We accordingly hold that the basic and very first ingredient of criminal breach of trust, that is entrustment, is missing and therefore, even if all the allegations in the complaint are taken at their face value as true, no case of ‘criminal breach of trust’ as defined under section 405 IPC can be made out against NEPC India.” (atp.2790) 7. Support is also sought from the decision in Onkar Nath Mishra’s case(supra) to urge where entrustment is found lacking; no offence under Section 406 IPC is made out. I have gone through the order of the learned Court below. Though detailed reasons are not required, but the order should manifest the reasoning on the basis of which the learned Court has come to the conclusion that charge has/has not been made out. I find that order is terse. Some prima facie exercise is required by the Court to sift the material on record to ascertain as to whether ingredients of the offence have/have not been made out. To repeat, a detailed order is not necessary. 8. In these circumstances, this petition is allowed to the limited extent that first objection taken by the petitioner herein is rejected. On the second aspect, the learned Court below will re-hear the petitioner and then proceed to consider as to whether charge under Sections 403 and 406 IPC is made out or not. 9. Before parting with the case, I must also observe that conduct of the petitioner has been as such so as to thwart the trial. FIR was registered on 9.10.2006 and the petitioner has successfully avoided the process of law for a period of more than five years. I also find from the proceedings before the learned Court below that at one time, he has been declared as Proclaimed Offender. In these circumstances, the learned trial Court shall make an endeavour to dispose of the case as expeditiously as possible and to ensure that dilatory tactics are not adopted by the petitioner. Let record of the case be sent back to the learned Court below forthwith. Parties to appear before the trial Court on 19th April, 2011.