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2013 DIGILAW 210 (JK)

Mohd. Ishtiaq and ors. v. State thr. P/S Bani

2013-04-16

MUZAFFAR HUSSAIN ATTAR

body2013
Notice. Notice accepted by Mrs. Seema Shekhar, learned AAG. The grievance of the petitioners is that learned trial Magistrate has framed charge against them under section 409, 411, 109 RPC for allegedly misappropriating eighty bags of cement. Learned counsel for the petitioners submitted that the petitioners are not the public servants or business persons and that they are not covered under the 'expression' used in section 409 RPC. Learned counsel further submitted that learned trial court in his order dated 19.01.2013, while referring to the claim of the petitioners that they are not public servants has stated that such issue cannot be considered at the stage of framing of charge. Learned counsel for the respondents vehemently argued that charge framed by learned trial court is legal and cannot be interfered with. In view of the explicit language contained in section 409 RPC, at the time of framing of charge, learned trial Magistrate has to take a prima facie view on the basis of material available on record that accused persons were entrusted with property or had dominion on it under the capacity of public servants or in their business as banker, merchant, broker, attorney or agent and have committed criminal breach of trust of entrusted property. The framing of charge has potential of putting a person on trial. Putting a person on trial by criminal court does abridge his liberty. Learned Magistrate while considering the material on record has to apply its mind and then pass orders either to discharge the accused or frame charge against them. May be on the basis of material available on record, the accused are liable for being charged under any other provision of the law, but learned Magistrate cannot reject the application of the petitioners on the ground that their claim of being not public servants cannot be considered at the time of framing of charge. Learned Magistrate has failed to perform its functions in accordance with law. For the above stated reasons, this petition is allowed, impugned order of framing of charge is quashed. Learned Magistrate to re-consider the whole issue and pass appropropriate orders after hearing the accused and the state counsel. Disposed of alongwitn connected CMA(s).