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Madhya Pradesh High Court · body

2016 DIGILAW 939 (MP)

Brij Bhooshan Sharma v. State of Madhya Pradesh

2016-10-20

J.P.GUPTA

body2016
ORDER : J.P. Gupta, J. The applicant-accused has filed this criminal revision under section 397 read with section 401 of the Code of Criminal Procedure being aggrieved by the impugned judgment dated 06.05.2016 passed by I Addl. Sessions Judge of Additional Judge Link Court Sausar, District Chhindwara, in Sessions Trial No.300035/2016 whereby charge under sections 409 read with Section 120-B of the I.P.C. has been framed against the applicant/accused. 2. In brief, the relevant facts of the case are that at the relevant time applicant was posted as In-charge of Police Station Pandhurna and other co-accused R.P. Gaydhane was posted as Assistant Sub Inspector in the same Police Station. On 30.05.2016 some people were carrying 104 oxes for the purpose of slaughtering. The said oxes were rescued by the members of the Bajrang Dal and brought in the Police Station Pandhurna. On that day R.P. Gaydhane, Assistant Sub Inspector was In-charge of the Police Station as applicant was out of station in connection with investigation of other crime. Shri R.P. Gaydhane registered the complaint vide Crime No. 245/2014 for the offence under Sections 4, 6, 9 of M.P. Gau Vadh Pratished Adhiniyam, 2004, r/w Section 11(1) of the Prevention of Cruelty to Animals Act and Sections 6, 10, 11 of M.P. Krishi Upyogi Sanrakshan Adhiniyam and the cattle were seized and medical examination was also conducted. Thereafter, the aforesaid cattle were taken to Gausala situated near about 25 Kilometers away from Pandhurna where Manager of the Gausala refused to receive the cattle as there was no place and other facility to manage the cattle. Thereafter, other Police Officers found two persons to handover the cattle for the purpose of security and grazing them and the cattle was handed over to them and took their signatures on Hifajatnama. 2.1 Thereafter, a complaint was made before the JMFC, Pandhurna to the effect that the Police has handed over the seized cattle to some slaughter illegally. Then the concerned JMFC called the report. On 21.6.2014, on perusal of Report, the JMFC found that the cattle were given to one Manoj and Mannu on Hifajatnama. But the documents prepared for the purpose of Hifajatnama were not found to be proper and in accordance with law, therefore, the police was directed to produce all the seized cattle before the Court. On 21.6.2014, on perusal of Report, the JMFC found that the cattle were given to one Manoj and Mannu on Hifajatnama. But the documents prepared for the purpose of Hifajatnama were not found to be proper and in accordance with law, therefore, the police was directed to produce all the seized cattle before the Court. However, the Police failed to produce the seized cattle before the Court of the Magistrate on 25.06.2014. Then, the police was further directed to produce the cattle on 28.06.2014. On 28.06.2014, the cattle were not produced, instead Hifajatdar Mannu was produced and he narrated before the Court that he is illiterate person and what is written in the Hifajatnama is not known to him; but, he accepted that he and Manoj were interested the cattle for the purpose of grazing. Thereafter, on 03.07.2014, Manoj was also produced before the Court. He also supported the statement given by the Mannu. Thereafter, the police was directed to produce all the seized cattle on 07.07.2014. On that day R.P. Gaydhane, Sub Inspector informed to the Court that cattle are coming, they are 5 kilometer far from the court but on that day cattle were not produced and on 08.07.2014 near about 12.00 am, R.P. Gaydhane, Sub Inspector informed to the Court that the cattle are present in the premises near to the Court and the cattle were inspected by the Presiding Officer, Veterinary Doctor and other persons. It was found that only 84 cattle were present and there was also discrepancies about the age, health and other things relating to the identification of the cattle which show that some cattle have been changed. Apart from it, it was informed that some missing cattle have died. Thereafter, the JMFC directed to Police Station, Pandhurna to register an FIR against the applicant and Sub-Inspector R.P. Gaydhane for the offences under Sections 409, 466 and 167 of the IPC. On the aforesaid direction, in Police Station Pandhurna Crime No. 314/14 was registered and after completion of formality, charge-sheet was filed before the Court for the offences under Sections 409, 466, 167, 406, 177, 193 and 2oo of the IPC against the applicant, Shri R.P. Gaydhane and 8 other persons. Thereafter, case was committed the Court of Sessions and transferred to Addl. Sessions Judge of First Additional Judge, Chhindwara, Link Court Sausar. By the impugned order the Add. Thereafter, case was committed the Court of Sessions and transferred to Addl. Sessions Judge of First Additional Judge, Chhindwara, Link Court Sausar. By the impugned order the Add. Sessions Judge imposed the charges under Sections 409 r/w Section 120 B of the IPC against the applicant in addition to other co-accused. 3. Learned counsel for the applicant submitted that the applicant has challenged the aforesaid impugned order on the basis that registration and investigation of the Crime No. 245/14 of Police Station Pandhurna was not done by him. He was In-charge of the Police Station and at the relevant time, he was busy in the investigation of another crime. Other Investigating Officer was working under his supervision. But, so far as the allegations regarding breach of trust about the seized cattle on his direction or connivance or his knowledge is concerned, the same is not true. Neither the cattle was entrusted to him nor he has illegally handed over them to anybody nor he has changed or sale the cattle as he was not directly involved in the investigation of the aforesaid case and there is nothing on the record to suggest that the aforesaid irregularity, illegality was caused by his subordinate under his direction. Looking to the facts and circumstances the concerned Police Officer tried to manage the unprecedented situation because neither in the Police Station nor near about the Police Station, facility of keeping large number of cattle was available and In-charge of Gausala was also not agreed to receive the cattle, therefore, temporary arrangements for the purpose of security and grazing the cattle were made to the interested persons who were agreed to take the responsibility of grazing of them. If, that persons have committed any fault then they were liable for the act as the act of the other Police Officers are also bona fide act. In the aforesaid circumstances, it cannot be said that they have done any act deliberately, dishonestly with a view to commit breach of trust. Hence, the direction given by the JMFC cannot be said to be appropriate or legal and thereafter registration of the crime and filing of the charge-sheet and taking of the cognizance and imposition of the charge to prosecute further is illegal and contrary to law. 4. Hence, the direction given by the JMFC cannot be said to be appropriate or legal and thereafter registration of the crime and filing of the charge-sheet and taking of the cognizance and imposition of the charge to prosecute further is illegal and contrary to law. 4. It is also submitted that against the applicant there is no iota of evidence to prove ingredients of the offence or to prima facie connect him with the alleged offence, therefore, the impugned order so far as the applicant is concerned be set aside. 5. Learned Panel Lawyer, on the other hand, has supported the impugned order and prayed for rejection of the petition on the ground that prima facie there is sufficient material on record to prosecute the applicant for the aforesaid offences. The charges have been framed rightly and no interference is required. 6. Having considered the contentions advanced by learned counsel for the parties and on perusal of the charge-sheet and copy of the Rojnamcha submitted by the applicant, it is found that on 30.05.2014 when the Crime No. 245/14 was registered and 104 oxes were seized, applicant was not present in the Police Station Pandhurna. Similarly, he has not given cattle to one Mannu and Manoj on Hifajatnama. There is no material to disclose that he has any role to change the cattle or otherwise disposal of the cattle. Only it appears that when the JMFC directed to produce all the cattle before the Court, he failed to produce before the Court on 07.07.2014 and the cattle have been produced on 08.07.2014; but the reason for its non-appearance is mentioned by concerned JMFC in his order sheet dated 10.07.2014 that In-charge, Police Station and R.P. Gaydhane informed to the Court that the cattle are coming, they are 5 kilometers far away from the court premises and till 5 pm they were unable to come and on next day the cattle have been produced. In the aforesaid circumstances, applicant cannot be held responsible for wilfully not producing the cattle as per the direction of the Court or for committing any breach of trust with dishonest intention. 7. In the aforesaid circumstances, applicant cannot be held responsible for wilfully not producing the cattle as per the direction of the Court or for committing any breach of trust with dishonest intention. 7. It appears that the investigation of the Crime No. 245/14 was being done by R.P. Gaydhane, Sub Inspector and the applicant being In-charage, Police Station was only supervising the case and there is no material to indicate that he protected and hide his subordinate officer fault having knowledge of the illegality or the offence committed by his subordinate. In the aforesaid circumstances it cannot be said that he is liable for the offence committed by his subordinate with the aid of Section 120-B of the IPC. As for this purpose it has to be shown that two or more persons agree to do or caused to be done, an illegal act or an act which is not illegal, by illegal means to commit an offence. In other words, to constitute the conspiracy, an agreement between two or more persons for doing any illegal act or an act by illegal means is a sine-quo-non. But in this case, there is no direct or circumstantial evidence to prima facie infer that the applicant was agreed with the other concerned Police employee to do aforesaid so caused alleged illegal act. Hence, it cannot be said that there is prima facie material to prosecute the applicant/accused for the offence u/S 409 of the IPC read with Section 120-B of the IPC. 8. At the time of framing charges; the Court is required to examine the material available on record with a view to finding out if the facts emerging therefrom taken at their face-value disclose the existence of all the ingredients of the offence. At this stage, the Court can neither act merely as a post-office or a mouth piece of the prosecution nor it is expected to go deep into probative value of material on record. The Court has to find out whether the prima facie case is made out against the applicant/accused or not. Even strong suspicion against the accused is sufficient ground to frame the charge. But in present case there is no prima facie material to connect the applicant/accused with the alleged crime and on the basis of aforesaid material. No charge can be framed against the applicant/accused. Even strong suspicion against the accused is sufficient ground to frame the charge. But in present case there is no prima facie material to connect the applicant/accused with the alleged crime and on the basis of aforesaid material. No charge can be framed against the applicant/accused. Therefore, the applicant deserves to be discharged from the charge levelled against him. 9. In view of the aforesaid discussion, the revision petition is allowed and the impugned order, so far as it relates to the applicant, is set aside and the applicant is discharged from the charge for the offence under Section 409 of the IPC read with Section 120-B of the IPC. Copy of this order be sent to the concerned Magistrate for information and compliance.