Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.5523 of 2010 =========================================================== Gorakh Sah, son of Late Bahadur Sah, resident of village.- Jeodhara Panditpur, P.O.- Jeodhara, P.S.- Pipra Kothi, Distt.- East Champaran. .... .... Petitioner. Versus The State Of Bihar .. .... Opposite Party. =========================================================== Appearance: For the Petitioner : Mr. Pravin Kumar, Adv. For the Opposite Party : Mr. Soni Shrivastava Mr. Samir Ranjan Mr. Amit Prakash =========================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. JUDGMENT Date: 17-07-2012 A.K. Trivedi, J. After hearing the parties as well as going through the pleading, it is evident that prayer of the petitioner happens to be misconceived. To enlightened the issue, from para-1 of the petition, it is evident that petitioner at one occasion has prayed for quashing of the order dated 23.11.2009, the order by which the learned Magistrate had rejected the prayer of discharge while at the other hand also prayed for setting aside of order dated 18-01- 2002 passed by the learned Second Additional Sessions Judge, East Champaran, Motihari in Cri. Revision No.359 of 2000 / 45 of 2000 which was filed against the order of the cognizance. Both two have got independent identity without having any prospect of overlapping and as no order of cognizance is under challenge hence there is no need for adjudication of an order passed by -2- learned Revisional Court passed in Cri. Revision No.359 of 2000 / 45 of 2000. Petitioner /accused Gorakh Sao has challenged the order dated 23.11.2009 passed by Sri Ashok Raj, Judicial Magistrate, East Champaran at Motihari in Complaint Case No.738 of 2000, Trial No.1330 of 2009, Arun Prakash Pandey Versus Gorakh Sah whereby and where under the learned court had rejected the prayer of the petitioner made in accordance with Section 245(1) of the Cr.P.C. Arun Prakash Pandey (since deceased) filed protest petition in connection with Turkaulia P.S. Case No.79 of 1998 wherein final form was submitted and in the aforesaid background after acceptance of the same the protest petition was treated as complaint petition numbering as Complaint Case No.738 of 2000 wherein vide order dated 15.7.2000 petitioner was summoned to face trial for an offence punishable under [STATUTE] . The allegation as is evident from the complaint petition in brief is that petitioner / accused who in a capacity of driver was entrusted with truck which he has taken away bearing Registration No.BPE 5882 having in name of Ajit Pandey, son of complainant. From the aforesaid complaint petition it is also evident that the aforesaid truck was seized by the Forest Department while -3- stealthily transporting the forest produce in contravention of Forest Act. Contention on behalf of the petitioner is that no offence under [STATUTE] is made out, because of the fact that neither the vehicle was entrusted to him nor he had stolen the truck. Further submitted that petitioner happens to be driver and was engaged by complainant but on account of dispute over payment of wages he left. After long interval when the vehicle of complainant was intercepted by the Forest Department for which apart from drawing up of criminal case, confiscation proceeding also been drawn up. Now only to save his skin got this case filed against the petitioner. Further submitted that none of the witnesses examined on behalf of complainant have supported the theft / entrustment. Further submitted that 379/406 cannot apply simultaneously because of the fact that when there happens to be entrustment, the property cannot be stolen away and when there happens to be theft, there cannot be entrustment. The learned lower court without taking into consideration the aforesaid event as well as without discussing the evidence adduced on behalf of complainant rejected the prayer in mechanical manner. At the other hand learned counsel for the O.P. No.2 submitted that firstly truck was taken by the petitioner which was -4- entrusted to him and during his custody the truck disappeared which was seized by the forest officials. Therefore, there happens to be prima facie material available on the record which could justify application of both the sections. Consequent thereupon petition is not maintainable. The learned Additional P.P. opposed the prayer and submitted that for the present purpose only a cursory perusal of evidence forming an opinion with regard to presence of ingredients of particular section for the purpose of proceeding with trial, is sufficient which the order of the learned lower court speaks. As such the prayer is not maintainable. Gone through the order impugned. The learned lower court had not discussed nature of evidence whatever been adduced on behalf of complainant. At the present stage when there happens to be prayer made under Section 245 of the Cr.P.C. how the court should proceed has been elaborately discussed in a decision reported in 2009 Cri.L.J. 2824 and the relevant para is 14. “14. However, in a warrant trial instituted otherwise than on a police report, when the accused appears or is brought before the Magistrate under Section 244(1) Cr.P.C., the Magistrate has to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. In this, the Magistrate may issue summons to the witnesses also under Section 244(2) Cr.P.C. on the application by prosecution. All this evidence is evidence before charge. It is after all this, evidence is taken, -5- then the Magistrate has to consider under Section 245(1) Cr.P.C., whether any case against the accused is made out, which, if unrebutted, would warrant his conviction, and if the Magistrate comes to the conclusion that there is no such case made out against the accused, the Magistrate proceeds to discharge him. On the other hand, if h

Applicable IPC Section: 406

Statute Text:
Section 406 of the Indian Penal Code. Criminal breach of trust. Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.