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2011 DIGILAW 29 (JHR)

Chandan Mishra v. State of Jharkhand

2011-01-12

D.K.SINHA

body2011
JUDGMENT D.K. Sinha, J.- The petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for quashment of the criminal prosecution of the petitioner in connection with Golmuri (Burma Mines) P.S. Case No. 14 of 2005, corresponding G.R. No. 220 of 2005 including the order dated 28.3.2005 by which cognizance of the offence was taken under Section 414 of the Indian Penal Code by the Chief Judicial Magistrate, Jamshedpur against the petitioner, now pending in the Court of Shri S.K. Choudhary, Judicial Magistrate, Jamshedpur. 2. The prosecution story in short was that when the informant Sub-Inspector of Police Umesh Prasad Singh was engaged in checking of the vehicles on the highway, he suspected as such had given signal to the riders of two motorcycles coming from the side of railway station heading towards Burma Mines to stop but the riders speeded their motorcycle, however, they were intercepted on chase. The rider of Splendor Hero Honda Motorcycle No. JH05E/8972 Mukesh Sharma disclosed his name, parentage and address and its pillion rider disclosed his name being Chandan Mishra i.e. the petitioner herein. The rider of the L.M.L. motorcycle disclosed his name being Sanjay Kumar Sinha and on interrogation the pillion rider disclosed his name Madhupal. The informant suspected foul play on exe-mining the Hero Honda motorcycle as a different Registration number was found behind the registration plate put on the said motorcycle and its handle lock was also found broken. The rider Mukesh Sharma admitted his guilt before the informant and stated that Splendor Hero Honda motorcycle was stolen one and all of them were proceeding for the disposal of the said motorcycle. All the accused including the petitioner were arrested and F.I.R. was lodged under Section 414 of the Indian Penal Code against all of them. A seizure list of the motorcycles was prepared. The police after investigation submitted charge-sheet against them under Section 414 of the Indian Penal Code accordingly, cognizance of the offence was taken under the said section against them. 3. Mr. Das, learned Counsel submitted that the theft of the motorcycle in question was instituted by one Shyamlendu Mohan Ghosh giving rise to Adityapur P.S. Case No. 25 of 2005 for the alleged offence under Section 379 of the Indian Penal Code against unknown as he reported missing of his motorcycle from the parking place. 3. Mr. Das, learned Counsel submitted that the theft of the motorcycle in question was instituted by one Shyamlendu Mohan Ghosh giving rise to Adityapur P.S. Case No. 25 of 2005 for the alleged offence under Section 379 of the Indian Penal Code against unknown as he reported missing of his motorcycle from the parking place. The petitioner after being apprehended in the instant case viz. Golmuri (Burma Mines) P.S. Case NO.14 of 2005 was also remanded in Adityapur P.S. Case No. 25 of 2005 and after submission of charge-sheet cognizance of the offence was taken by the Court of C.J.M., Seraikella under Section 379 of the Indian Penal Code against him on 27.3.2006. In that manner two cases were instituted viz. one for recovery of motorcycle at Golmuri (Burma Mines) Police Station and another for theft of the said motorcycle at Adityapur Police Station. 4. Mr. Das, learned Counsel pointed out that a person cannot be prosecuted twice for single offence though the occurrence took place in the same transaction. 5. Mr. Das, learned Counsel relied on a decision reported in AIR 2001 SC 2637 . The Honoble Supreme Court in T.T. Antony vs. State of Kerala and Others with Damodaran P. and Others vs. State of Kerilla and Others* observed, "It is quite possible and it happens not infrequently that more informations than one are given to a police officer-in-charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter everyone of them in the station house diary and this is implied in Section 154 of Cr.P.C. apart from a vague information by a phone call or cryptic telegram, the information first entered in the station house diary kept for this purpose, by a police officer-in-charge of police station is the first information report-F.I.R. postulated by Section 154 of Cr.P.C. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Cr.P.C. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be inconformity with the scheme of the Cr.P.C." 6. Mr. Das further explained that the alleged theft of motorcycle and its recovery from the possession of the rider was of the same transaction to which two different cases were instituted at two different places and in view of the proposition referred to hereinbefore the prosecution of the petitioner for the alleged offence under Section 414 I.P.C. in Golmuri (Burma Mines) P.S. Case No. 14 of 2005 was not maintainable therefore, liable to be quashed against the petitioner. 7. A counter-affidavit has been filed on behalf of the Respondent-State in which it has been contented that the theft of motorcycle in question took place within the jurisdiction of District of Seraikella Kharuwan giving rise to Adityapur P.S. Case No. 25 of 2005 on 25.1.2005 and accordingly after investigation charge-sheet was submitted under Section 379 of the Indian Penal Code to which cognizance of the offence was taken by the C.J.M., Seraikella-Kharsawan but since the stolen motorcycle was recovered from within the jurisdiction of Golmuri (Burma Mines) Police Station giving rise to Golmuri (Burma Mines) P.S. Case No.14 of 2005 on 31.1.2005 after five days of the alleged occurrence, the cognizance of the offence was taken by the C.J.M., East Singhbhum, Jamshedpur under Sectlon 414 of the Indian Penal Code against the petitioner on the submission of charge-sheet. 8. 8. The theft of a motorcycle in question was registered as independent offence under Section 379 of the Indian Penal Code against unknown in the District of Seraikella-Kharsawan Whereas its recovery was made from the different District by the Golmuri (Burma Mines) police after five days of alleged theft giving rise to a substantive case and offence under Section 414 I.P.C. The petitioner was apprehended with the stolen motorcycle within the jurisdiction of Golmuri Police Station and the rider of the motorcycle had also confessed his guilt that it was the stolen motorcycle. There appears substance that each of the offences is substantive in nature which took place within jurisdiction of two distinct Courts having penal consequences. 9. Section 220 Code of Criminal Procedure deals with the trial for more than one offence, which speaks, "that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence." "Same transaction" is not defined in the Code. If several acts committed by a person so a unity of purpose or design that would be strong circumstance to India vs. State of Jharkhand indicate that those acts form part of the "same transaction. The most essential tests are continuity of action and community of purpose, i.e., there should be a continuous operation of acts leading to the same end and a common purpose should run through all acts. 10. In State of Andhra Pradesh vs. Cheemalapati Ganeswara Rao, reported in A.I.R. 1963 S.C. 1850, the Supreme Court held, "It is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction." 11. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction." 11. A case of theft was reported under Section 379 of the Indian Penal Code against unknown within the jurisdiction of C.J.M., Saraikella-Kharsawan but the motorcycle in question which was the subject matter of theft of the informant was recovered from the possession of the petitioner and others to which a case for substantive offence under Section 414 of the Indian Penal Code was registered with Golmuri (Burma Mines) Police Station, which was admittedly the part of the same transaction. The accused persons intended to dispose of the said motorcycle which was the subject matter of theft giving rise to Adityapur P.S. Case No. 25 of 2005 and therefore, I find that there was continuous operations of acts and the stolen motorcycle was recovered from the possession of the petitioner and others which laid to inference that there was common purpose behind such continuity, therefore, Section 220 Code of Criminal Procedure prohibits the subsequent prosecution of the petitioner in Golmuri (Burma Mines) P.S. Case No. 14 of 2005, corresponding to G.R. No. 220 of 2005 as the alleged recovery was the part of the same transaction by which the motorcycle of the informant was stolen, consequently, a case was instituted under Section 379 of the Indian Penal Code. I find relevancy, under the facts and circumstances of the case, that the statement made by the informant in the subsequent case viz. Golmuri (Burma Mines) P.S. Case No. 14 of 2005 shall be deemed to be a statement falling under Section 162 of the Code of Criminal Procedure hence, such statement cannot be treated as the basis for lodging of subsequent F.I.R. There appears merit in the argument advanced for and on behalf of the petitioner, accordingly, his prosecution in Golmuri (Burma Mines) P.S. Case No. 14 of 2005 for the alleged offence under Section 414 of the Indian Penal Code and the order by which cognizance of the offence under Section 414 was taken is also quashed. It would be relevant to mention that the petitioner shall be proceeded for the offence prima facie alleged to have been committed by him under Section 414 of the Indian Penal Code in connection with Adityapur P.S. Case No. 25 of 2005 in view of the provisions laid down under Section 220 Code of Criminal Procedure and other relevant provisions. Accordingly, this petition is allowed.