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2018 DIGILAW 834 (JK)

Mohd. Ishtiaq v. State of J&K

2018-10-26

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. In this petition filed under Section 561-A of the Code of Criminal Procedure, the petitioners seek quashing of FIR No. 49/2012 dated 19.11.2011, registered at Police Station, Bani as well as the order passed by the learned Munsiff Judicial Magistrate Bani dated 28.03.2014 whereby the charge has been framed against the petitioners under Sections 411/109 RPC. 2. It is stated in the petition that the order dated 28.03.2014 passed by the learned Munsiff JMIC, Bani is quite contrary to the law and facts of the case. The police of Police Station, Ban have registered the case against the petitioners under FIR No. 49/2011 at the instance of respondent No.2 under Sections 409/109/411 RPC. The respondent after investigation produced the final report/charge sheet dated 29.09.2012 before the learned Munsiff JMIC, Bani. The learned Munsiff framed the charge against the petitioners under Section 409/109/411 RPC vide order dated 19.01.2013. 3. The petitioners, feeling aggrieved of the order dated 19.01.2013, filed a petition under Section 561-A Cr.P.C. bearing No. 50/2013 before this Court, which was disposed of vide order dated 16.04.2013. The operative portion of the aforesaid order is reads as under : “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 appropriate orders after hearing the accused and the state counsel. Disposed of along with connected CMAs.” 4. It is further stated that the learned Magistrate has passed the order impugned dated 28.03.2014 framing the charge under Section 411 and 109 RPC in the following terms: “The charge under section 409 RPC groundless and as such offence under Section 409 RPC is not applicable to the accused. Also there is prima facie sufficient material on record is available, to frame the charge and proceed against the accused u/s 411/409 RPC. Put up on 26.04.2014 for further proceedings. Accused Attah Mohd is exempted for personal appearance for today only.” 5. It is further contended that the order impugned passed by the learned JMIC, Bani is quite contrary to the law and facts of the case. The final form/challan dated 29.09.2012 filed by the concerned police does not connect the petitioners with the alleged commission of offence. The respondent police has not seized any record/material whatsoever in this case which could prima facie connect the accused with the alleged commission of offence. The final form/challan dated 29.09.2012 filed by the concerned police does not connect the petitioners with the alleged commission of offence. The respondent police has not seized any record/material whatsoever in this case which could prima facie connect the accused with the alleged commission of offence. There is no evidence on record with regard to the sale or purchase of cement allegedly belonging to the GREFF. Also there is no statement of any witness to the effect of alleged sale or purchase of the alleged cement belonging to the “”GREFF”. After the order of quashing passed by this Court, the learned JMIC Bani has found the charge under Section 409 RPC groundless and the same not applicable to the accused, whereas the learned JMIC is of the opinion that there is prima facie sufficient material on record available to frame the charge and proceed against the petitioners/accused under Sections 411/109 RPC. It is further stated that the police has not shown anywhere in the challan that the petitioners/accused have made the sale of the said cement to any person. There is no proof or any evidence on record with regard to the entrustment of the alleged cement to the petitioners. The learned Magistrate has dropped the offence under section 409 RPC, therefore, no charge under Section 109/411 RPC is maintainable under law. It is also contended that the FIR so registered and the proceedings initiated by the court below for framing the charge under Section 109/411 RPC is quite illegal and not in accordance with law. There is neither any evidence on record nor any such document annexed with the challan with regard to the abetment, intentional aiding or conspiring for committing the alleged offences. The police have put the challan on mere presumptions and assumptions. The learned Magistrate has proceeded in a casual manner without going to the merits of the challan and more particularly when the charge under Section 409 RPC is held not maintainable. It is further stated that 80 bags cement has been shown allegedly sold by Sh. Attah Mohd. to his brother Mohd. Ishtiaq. The charge was framed under Section 409 RPC. After intervention of this Court, the charge under Section 409 RPC has been dropped. It is further stated that 80 bags cement has been shown allegedly sold by Sh. Attah Mohd. to his brother Mohd. Ishtiaq. The charge was framed under Section 409 RPC. After intervention of this Court, the charge under Section 409 RPC has been dropped. If the main offence under Section 409 RPC is not made out, the question of abetment, conspiracy of attempt in relation to them does not arise because offences under Sections 409, 120-B and 511 go with the aforesaid offences. 6. The objections have been filed by the respondent-State wherein it has been stated that on 19.11.2011 at about 7.30 hours SGCT Darminder Dass No. 491/K of Police Post Lohang came to Police Station Bani, produced a docket duly forwarded by Incharge Police Post Lorang camp Khada Tehsil Bani contents of which are that the Incharge Police Post Loran was on patrolling in village Lorang Khadra etc. along with SGCT Darminder Dass, Constable Ghulam Haider, SPO Suresh Kumar and during patrolling a reliable information was received stating therein that GREFF Department with the mention to achieve illegal gratification has sold cement to one Ishtiaq Ahmed S/o Nayam Din, caste Kashmiri R/o Khadra, Tehsil Bani. Upon this on 18.11.2011 Incharge P/P along with officials of P/P Lorang at 18.30 hrs., during search in the house of Ishtiaq Ahmed recovered 80 bags cement from one of the room of the above named person and before the eye witnesses took 80 bags cement in police possession and prepared seizure memo. As the GREFF Department officials had sold 80 bags cement marked ultra having the remarks of NOT FOR SALE to one Ishtiaq Ahmed and committed offence under Section 409/109 RPC, FIR was registered and the investigation of the case was started. During the investigation, I.O prepared site plan and prepared seizure memo of recovered cement and enquiries were made by him and he recorded the statements of witnesses u/ 161 CrPC and from the spot seized 80 bags cement Shree Ultra marked NOT FOR SALE, loaded in Govt. Vehicle and brought it at Police Station Bani and further investigation was carried out. The SHO/I.O called the record of seized cement from GREFF Deptt. camp Khadra and took the same into police possession and prepared seizure memo. Vehicle and brought it at Police Station Bani and further investigation was carried out. The SHO/I.O called the record of seized cement from GREFF Deptt. camp Khadra and took the same into police possession and prepared seizure memo. As per record of GREFF Deptt., conducted checking of record during the month of March 2011 to 18.11.20111 and it was found that total 158.5 metric ton cement Shree Ultra and Ambuja has supplied to GREFF camp. Thereafter, SHO conducted further investigation of case and during investigation, it was revealed that labour union has transported that cement in the house of accused Ishtiaq Mohd, who were called at Police Station and queries were made and witnesses of labourers were recorded u/s 161 CrPC. 7. It is further stated in the objections that from the perusal of record in the case i.e. site plan, recovery memo and statements of witnesses so recorded under Section 161 CrPC and record collected/seized from GREFF Department, it has been revealed that on 15.11.2011 Mohd. Ishtiaq S/o Nayem Din, Caste Kashmiri R/o Lowang Mohra Khadra has purchased 80 bags Ultra Shree Cement from his real brother namely Attah Mohd., who is a guard in GREFF Department with the intention to get illegal benefit brought in his house with the help of labourer and Atta Mohd who is working as guard @ GREFF department whose residential house is situated near the GREFF camp Khadra, who with the intention to attain illegal gratification has sold the cement to his real brother namely Mohd Ishtiaq. Accused Mohd Ishtiaq has committed offence under Section 409/411 RPC. During the course of investigation above mentioned offence has been proved against the above named persons and challan of the case has been produced in the court of law on 29.09.2012 in the court of JMIC Bani which is under trial. In view of the aforesaid evidence submitted with the report to the learned Magistrate, charge has been framed against the petitioner which is liable to be upheld. 8. Heard learned counsel for the parties and perused the scanned record. From bare perusal of order impugned, it is evident that court below has framed charges under section 411/109 RPC. In view of the aforesaid evidence submitted with the report to the learned Magistrate, charge has been framed against the petitioner which is liable to be upheld. 8. Heard learned counsel for the parties and perused the scanned record. From bare perusal of order impugned, it is evident that court below has framed charges under section 411/109 RPC. Section 411 RPC reads as under :- “Section 411 RPC- Dishonestly receiving stolen property.—whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 9. Section 411 deals with the receipt of stolen property. The essential ingredients of Section 411 RPC are as under:- 1. That some property was stolen; 2. That the accused received or retained such property; 3. That the accused received or retained it dishonestly; 4. That the accused did so knowingly or having reason to believe that such property was stolen. 10. As per Section 410, “property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as ‘stolen property’. This section reads as under:- “410. Stolen property.—Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as “stolen property”, whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without [the state]]. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.” 11. To prove the offence under Section 411, the prosecution should prove that the property stolen must have been acquired by theft or criminal misappropriation or other offences alien to them. So firstly, there should be a property which is allegedly stolen, and secondly it should have been received or retained by a person knowingly it is stolen. To prove the offence under Section 411, the prosecution should prove that the property stolen must have been acquired by theft or criminal misappropriation or other offences alien to them. So firstly, there should be a property which is allegedly stolen, and secondly it should have been received or retained by a person knowingly it is stolen. The foremost essential ingredient of Section 411 R PC is that the property should be stolen property and subsequently it is to be proved that such stolen property is retained by the accused and such retaining is dishonestly and accused knows or having reasons to believe that the such property is stolen. Thus, the foremost essential requirement to establish the liability of the accused u/sec. 411 RPC is that “The property should be stolen property first of all.” 12. So in this way, I am of the considered view that only charge u/s 411 RPC cannot be framed without framing of substantial charge of theft or extortion, or robbery, or criminally misappropriation or criminal breach of trust as defined under section 410 RPC against accused or any other accused. 13. In view of above, the order impugned is set aside. Court is directed to re-hear the accused and after going through the facts of the case and law on the point, shall frame the charge or may discharge the accused.