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2022 DIGILAW 324 (TRI)

Ashes Deb v. State of Tripura

2022-08-05

T.AMARNATH GOUD

body2022
JUDGMENT 1. This is a petition filed under Section 482 of Cr.P.C. to quash and set aside the Judgment dated 25.02.2022 passed by the learned Sessions Judge, West Tripura, Agartala in Criminal Revision No.11 of 2021 directing the learned Judicial Magistrate 1st Class, West Tripura, Agartala, Court No.8 to frame charge against the petitioner under Section 167 of IPC and to quash the order dated 20.08.2021 passed by the learned J.M. 1st Class, Court No.8, Agartala, West Tripura in Case No.PRC (WP)1345 of 2013 whereby the learned Court below rejected the prayer for discharge of the petitioner and directed framing of charge. 2. The fact of the case is brief is that one Sri Aneek Choudhury, the informant of this case, lodged an ejahar with the O.C., Lefunga Police Station on 07.12.2013 to the effect that on 17.04.2013, his motor bike bearing no. TR-01-P-4618 (Bajaj Discover) was stolen from Abicharan area under P.S. Lefunga. During that time no action was taken by the police. After the lapse of some months, he came to know that the ownership of the motorbike was transferred to one Paritosh Sarkar of East Noabadi. On getting that information, he approached the Transport Department and collected the necessary papers and came to know that the ownership of the motorbike has been transferred by the officials of the Transport Department in favour of Paritosh Sarkar. The informant thereafter lodged the aforesaid ejahar with Lefunga Police Station against the officials of the Transport Department and others involved in the incident. 3. Based on ejahar of the informant, Lefunga P.S. Case No.49 of 2013 was registered under Sections 379/420/468/471 of I.P.C. and the I.O. proceeded with the investigation of the case. On completion of the investigation, he filed the charge sheet against three accused persons including the present accused petitioner under Section 471/167 of I.P.C. 4. Thereafter, the case was posted before the learned Judicial Magistrate (1st Class), West Tripura, Agartala, Court No.8 wherein a prayer under Section 239 of Cr.P.C. was filed by the present petitioner herein. 5. Subsequently, after hearing the petition under Section 239 of Cr.P.C., so far the accused-petitioner herein was concerned, by the impugned order dated 20.08.2021, the petition under Section 239 of Cr.P.C. was rejected. 6. 5. Subsequently, after hearing the petition under Section 239 of Cr.P.C., so far the accused-petitioner herein was concerned, by the impugned order dated 20.08.2021, the petition under Section 239 of Cr.P.C. was rejected. 6. Being aggrieved by and dissatisfied with the order dated 20.08.2021, passed by the learned Judicial Magistrate (1st Class), West Tripura, Agartala, the petitioner herein filed a revision petition before the learned Sessions Judge, West Tripura, Agartala. The same was registered as Criminal Revision petition No.11 of 2021 by the judgment and order dated 25.02.2022 passed by the learned Sessions Judge, West Tripura, Agartala. The said Criminal Revision No.11 of 2021 was partially allowed directing the learned Judicial Magistrate 1st Class, West Tripura, Agartala, Court No.8 to frame charges against the petitioner under Section 167 of IPC. By the aforesaid order, the petitioner was however discharged from the liability of the offence under Section 471 of IPC. 7. Aggrieved by the said judgment passed in Criminal Revision No.11 of 2021 by the learned Sessions Judge, West Tripura, Agartala to frame charge against the petitioner under Section 167 of IPC and also the order dated 20.08.2021, passed by the learned Judicial Magistrate, 1st Class, Agartala, West Tripura, in Case No.PRC(WP)1345 of 2013, whereby the learned Court below rejected the prayer for discharge of the petitioner and directed framing of charge, the instant petition is filed praying the following reliefs:- ' i) Admit the instant petition under Section 482 of Cr. P.C. ii) Call for the records. iii) After hearing both the sides, may kindly quash the impugned orders dated 20.08.2021 passed by the Ld. J.M.(1ST Class), Court No.8(Annexure-3) and judgment and order dated 25.02.2022 passed by the learned Sessions Judge, West Tripura, Agartala in Crl. Rev No.11 of 2021 (Annexure-4), vis a vis, the entire criminal proceedings so far the present petitioner is concerned. iv) Discharge the petitioner from the liability of the case no. PRC(WP) 1345 OF 2013. v) Till disposal of the instant petition be kind enough to stay further proceedings of case no. PRC(WP)1345 of 2013 pending before the Court of J.M. 1st Class, West Tripura, Agartala, Court No.8. vi) Pass such order or orders as Your Lordship deem fit and proper.' 8. Heard Mr. S. Kar Bhowmik, learned Sr. counsel assisted by Mr. J. Das, learned counsel appearing for the petitioner as well as Mr. S. Ghosh, learned Addl. P.P. appearing for the State-respondent. vi) Pass such order or orders as Your Lordship deem fit and proper.' 8. Heard Mr. S. Kar Bhowmik, learned Sr. counsel assisted by Mr. J. Das, learned counsel appearing for the petitioner as well as Mr. S. Ghosh, learned Addl. P.P. appearing for the State-respondent. 9. Mr. S. Kar Bhowmik, learned Sr. counsel appearing for the petitioner herein submitted that the accused petitioner herein is innocent and he did not have the intention to commit any offence. In the instant case, 27 witnesses were recorded under Section 161 of Cr.P.C. by the investigating agency. But, on the plain reading of the statement by the witnesses, it would be impossible to presume that the petitioner is connected with the alleged crime. All the statement does not cover the essential ingredients of culpability under Section 167 of IPC. Learned Sr. counsel further submitted that a bare perusal of the statement of the witness namely, Biplab Das, LDC of JTC office, Agartala would show that all the papers submitted before the office of Joint Transport Commissioner for transfer of the motorbike in question were done by him. Subsequently, he forwarded the same to the concerned Motor vehicle Inspector for approval. A plain reading of the statement of the witnesses namely M.V.I. Rabindra Barman and the Joint Transport Commissioner Nirmal Adhikari would reveal that the petitioner was totally innocent and had no ill motive. The learned Sr. counsel also submitted that in the instant case, the accused-petitioner herein could have been a star witness of the prosecution, but for reasons best known to I.O., charge sheet has been submitted against the petitioner. It was also submitted that the informant after the theft of the motorbike did not lodge any ejahar. The Transport Department with all honesty communicated an SMS during the transfer of the ownership of the motorbike on 05.10.2013. Learned Senior Advocate also referred to the statement of witness namely, Nirmal Adhikary recorded by the I.O. and submitted that the contents of the statement are enough to understand that the accused petitioner did not have any malafide intention to deprive the informant. 10. To support his contention, learned Sr. Learned Senior Advocate also referred to the statement of witness namely, Nirmal Adhikary recorded by the I.O. and submitted that the contents of the statement are enough to understand that the accused petitioner did not have any malafide intention to deprive the informant. 10. To support his contention, learned Sr. counsel referred to the following Apex Court Judgments:- i) Para 9,10, 13-16, 21,22 and 24 of Criminal Application (Apl) No.417 of 2012, titled as Shri Vivek v. The State of Maharashtra and ors., reported in 2013 SCC Online Bom 5210 dated 26.03.2013; ii) Para 5 of Criminal Appeal No.99 of 1976, titled as Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, reported in (1976) 3 SCC 736 dated 23.04.1976; iii) Para 2 of Criminal Appeal No.203 of 1976, titled as Dr. Sharda Prasad Sinha v. State of Bihar, reported in (1977) 1 SCC 505 dated 08.12.1976; iv) Para 10 of Criminal Appeal No.621 of 1979, titled as Raj Kapoor and ors. v. State and ors., reported in (1980) 1 SCC 43 dated 26.10.1979; v) Para 102 of Civil Appeal No.5412 of 1990, titled as State of Haryana and ors. v. Bhajan Lal and ors., reported in 1992 Supp(1) SCC 335 dated 21.11.1990; vi) Para 7 of Criminal Appeal Nos.657-58 of 1986, titled as Madhavrao Jiwajirao Scindia and ors. v. Sambhajirao Chandraojirao Angre and ors., reported in (1988) 1 SCC 692 dated 09.02.1988. 11. Mr. S. Ghosh, learned Addl. P.P. appearing for the respondent countering the said argument of the learned Sr. counsel argued that there are incriminating materials under Sections 167 of I.P.C. against the petitioner herein. Learned Addl. P.P. submitted that the informant in his ejahar has specifically mentioned that the officials of the Transport Department were involved in the illegal transfer of the ownership of the motorbike in the name of Paritosh Sarkar. Learned Addl. P.P. further submitted that the record also reveals that the I.O. in course of investigation seized Form No.29 and Form No.30 in connection with the ownership transfer of the aforesaid motorbike. On bare perusal of both the documents, it is found that the name of the informant is written as Aneeket Chakraborty, S/O. Arun Chakraborty, whereas, the name of the registered owner is Aneek Choudhury, S/o. Arun Choudhury. On bare perusal of both the documents, it is found that the name of the informant is written as Aneeket Chakraborty, S/O. Arun Chakraborty, whereas, the name of the registered owner is Aneek Choudhury, S/o. Arun Choudhury. In Form No.29 there is an endorsement in all probability of the officials of the Transport Department and there is also a signature of Paritosh Sarkar as a 'transferee'. At the same time, if focused on Form No.30 it is found that the name of 'transferee' is written as Priyatosh Sarkar. 12. Learned Addl. P.P. further submitted that during the investigation the I.O. also collected a screen report prepared in the name of Paritosh Sarkar after the alleged transfer of the aforesaid motorbike. The I.O. also collected the Identity Card of the new owner of the motorbike and it is found that the name of the new owner of the motorbike according to the Election Identity Card is Priyatosh Sarkar whereas as per the screen report issued from the Transport Department the name of the new owner of the motorbike is Paritosh Sarkar. On bare perusal of the affidavit, it is found that the affidavit has been sworn by Aneek Choudhury whereas it is signed by Aneeket Chakraborty. Learned Addl. P.P. further argued that the entire transfer of the motorbike in the name of Paritosh Sarkar or Priyatosh Sarkar is illegal and the documents placed during the transfer of the motorbike including the affidavit as well as details furnished in Form No.29 and Form No.30 are false. Stating thus learned Addl. P.P. prayed to dismiss the instant petition. 13. After hearing both the parties and perusing the evidence on record, this Court feels that mens rea has to be examined in the trial Court. Nexus between the Chief Motor Vehicle Inspector i.e. the petitioner herein and the other accused persons who have committed the theft needs to be established. The names as per Form 29 and Form 30 prescribed by the Motor Vehicle Rules indicates the name of the owner as 'Aneek Choudhury' and in the document, it is indicated as 'Aneeket Chakraborty'. This fact, the accused petitioner herein being a responsible Motor Vehicle Inspector cannot ignore. Though it is the responsibility of the Motor Vehicle Inspector to check the registration number, insurance number, and the fitness of the vehicle, but at the same time, the names cannot be ignored. 14. This fact, the accused petitioner herein being a responsible Motor Vehicle Inspector cannot ignore. Though it is the responsibility of the Motor Vehicle Inspector to check the registration number, insurance number, and the fitness of the vehicle, but at the same time, the names cannot be ignored. 14. The evidence of Nirmal Adhikari, the Joint Transport Commissioner coupled with the statements of the accused persons made under Section 161 of Cr.P.C. do not give this Court the scope to allow this petition. 15. Further, it is relevant to point out that originally the case has been registered against the accused-petitioner herein under Section 167 and 471 of IPC and the same are reproduced herein-below:- '167- Public servant framing an incorrect document with intent to cause injury.-Whoever, being a public servant, and being, as 4[such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record] in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 471. Using as genuine a forged 3[document or electronic record].-Whoever fraudulently or dishonestly uses as genuine any 3[document or electronic record] which he knows or has reason to believe to be a forged 3[document or electronic record], shall be punished in the same manner as if he had forged such 3[document or electronic record]' 16. The learned Sessions Judge, West Tripura Agartala vide Judgment and order dated 25.02.2022 has discharged the petitioner from the charge labeled against him under Section 471 of IPC and continued the name of the petitioner as accused for committing an offence under Section 167 of IPC. 17. Since the crime needs to be tried and established and going through the statements, nowhere the petitioner has made out a case for discharging his name against the charge framed under Section 167 of IPC, this Court feels that the petitioner should face the trial. Further, the judgment relied on by the learned Sr. 17. Since the crime needs to be tried and established and going through the statements, nowhere the petitioner has made out a case for discharging his name against the charge framed under Section 167 of IPC, this Court feels that the petitioner should face the trial. Further, the judgment relied on by the learned Sr. counsel appearing for the petitioner is not relevant to the facts of the instant case since the nexus between the petitioner with other accused in the crime needs to be examined and it is only possible in trial. 18. With the above observation and direction, this instant petition is dismissed. Consequently, pending application(s), if any, also stands dismissed.