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Uttarakhand High Court · body

2014 DIGILAW 8 (UTT)

Ajay Yadav v. State of Uttarakhand

2014-01-03

U.C.DHYANI

body2014
ORDER The applicants, by means of present application under S. 482, Cr. P.C., seek to quash the charge-sheet dated 13-11-2006, summoning order dated 29.11.2006 as well as the proceedings of Criminal Case No. 759 of 2009, captioned as State v. Anoop Tiwari and others, under Sections 323, 504 and 506, IPC. 2. Informant (respondent No. 2) lodged the first information report on 24.08.2006 against five unknown persons at PS Sitarganj, under Sections 395/397, IPC. After the investigation, a charge-sheet was submitted against four accused persons, namely, Anoop Tiwari, Vikram Singh, Vikrant and Ajay Yadav for the offences under Sections 323, 504 and 506 IPC. Cognizance was taken on the said charge-sheet and accused persons were summoned to face the trial for the selfsame offences. Aggrieved against the same, present application under Section 482, Cr.P.C. was filed. 3. According to the first information report, respondent No. 2 was the registered owner of Mahindra pickup. One Sunder Bahadur was the driver of the said vehicle. The vehicle was financed by Mahindra and Mahindra Finance Company Limited, Haldwani. On 23.08.2006, at 2:00 p.m., five unknown persons came to the transport company of respondent No. 2 in Mahindra Bolero Jeep. The driver was requested to go to Pilibhit. No sooner the driver reached Amaria Road, five unknown accused persons caught hold of the driver, assaulted him and snatched the keys of the vehicle. When the driver resisted, a country made pistol was kept on the temple of driver. He (driver) raised alarm. Amin Shah and Nathu Yadav came there and saw the incident. Accused persons were addressing themselves as Anoop Tiwari & Vikram Singh. Had the driver not given the keys to them, they would have killed him. The accused persons also robbed the driver of Rs. 450/-. It was during the course of investigation that the name of applicant no. 1 came to fore. 4. Learned counsel for the applicants placed ruling of Charanjit Singh Chadha and others v. Sudhir Mehra, VI (2001) SLT 312 : (2001 Cri LJ 4255) before this Court. It will be useful to reproduce relevant para of the judgment herein below: “16. The hire-purchase agreement in law is an executory contract of sale and confers no right in rem on hirer until the conditions for transfer of the property to him have been fulfilled. It will be useful to reproduce relevant para of the judgment herein below: “16. The hire-purchase agreement in law is an executory contract of sale and confers no right in rem on hirer until the conditions for transfer of the property to him have been fulfilled. Therefore, the re-possession of goods as per the term of the agreement may not amount to any criminal offence. The agreement (Annexure P-1) specifically gave authority to the appellants to re-possess the vehicle and their agents have been given the right to enter any property or building when the motor vehicle was likely to be kept. Under the hire purchase agreement, the appellants have continued to be the owners of the vehicle and even if the entire allegations against them are taken as true, no offence was made out against them. The learned single Judge seriously flawed in his decision and failed to exercise jurisdiction vested in him by not quashing the proceedings initiated against the appellants. We, therefore, allow this appeal and set aside the impugned judgment. The complaint and any other proceedings initiated pursuant to such complaint are quashed. 5. Another judgment rendered by Hon’ble Apex Court in SLP (Crl) No. 8907 of 2009, Anup Sarmah v. Bhola Nath Sharma & others is also placed before this Court to reiterate the same. 6. It is, therefore, held that the offence of loot was not made out against the applicants, but offences under Sections 323, 504 and 506, IPC were prima facie made out against them. The investigating officer has himself found that there was no substance in the allegations of loot against the applicants and, therefore, he submitted charge-sheet against the accused persons only in respect of offences under Sections 323, 504 and 506, IPC. 7. Foundation of criminal offence under Sections 323, 504 and 506, IPC is, therefore, laid against the accused-applicants. It cannot, therefore, be said at this stage that no offence was, prima facie, made out against them. 8. Application under Section 482 Cr.P.C. (being C-482 Petition No. 370 of 2010) is, therefore, dismissed, but with direction upon learned Judicial Magistrate to decide the bail application of the applicants on the same day, subject to their surrender, in as much as, the offences complained of against them are bailable offences, in which the bail may be claimed as a matter of right. Part 2 9. Part 2 9. Earlier, a charge-sheet was submitted against the accused persons, namely, Anoop Tiwari, Vikram Singh, Vikrant and Ajai Yadav for the offences punishable under Sections 323, 504 and 506, IPC on 13.11.2006. Subsequent thereto, charge-sheet for the offence punishable under Section 394, IPC was submitted against those very accused persons on 07.11.2007. Cognizance was taken by the learned Magistrate on the supplementary charge-sheet and accused persons were summoned to face the trial for the offence punishable under Section 394, IPC. Aggrieved against the same, present application under Section 482, Cr.P.C. (being C-482 Petition No. 315 of 2010) was filed on behalf of the applicants. 10. This court has given a reference of two Honble Apex Court rulings in part-I one of the judgment. The excerpts of such judgments need not be repeated here. On the basis of such pronouncements of Hon’ble Apex Court, if he accused persons, who were either the officials of finance company or were engaged by such finance company, were entitled to take re-possession of the vehicle which was financed by such company. In view of the same, there was no question of committing loot by the officials of the finance company. Such officials/agents, therefore, ought not to have been charge-sheeted for the offence under Section 394, IPC. 11. The supplementary charge-sheet filed against them, therefore, does not survive. Application under Section 482, Cr.P.C filed in this behalf succeeds. As a consequence thereof, application under Section 482, Cr.P.C. (being C-482 Petition No. 315 of 2010) is allowed. Proceeding of Criminal Case under Section 394, IPC are quashed qua applicants. 12. It is made clear that the proceedings of case crime No. 1487 of 2006 under Sections 323, 504 and 506, IPC will continue against the charge-sheeted accused in the court below. Application allowed.