Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.238 of 2012 ====================================================== 1. Md. Jahangir @ Md. Munna, S/O Md. Sarafat Ali, Resident of Village- Jamalpur, P.S.- Bihpur, District- Bhagalpur 2. Md. Tunna, S/O Md. Sarafat Ali, Resident of Village- Jamalpur, P.S.- Bihpur, District- Bhagalpur 3. Md. Sarafat Ali, S/O Late Nadir Ali, Resident of Village- Jamalpur, P.S.- Bihpur, District- Bhagalpur. .... .... Petitioner/s Versus 1. The State of Bihar through Director General of Police, Bihar, Patna 2. Union of India through General Manager, East Central Railway, Hajipur. 3. Inspector Incharge, Railway Protection Force, Bihpur, District- Khagaria 4. Inspector Incharge, G.R.P. Police Station, Bihpur, District Khagaria .... .... Respondent/s ====================================================== with Criminal Writ No.494 of 2012 ====================================================== 1. Md. Nizam, S/O Late Abdul Mazid, R/O Village - Jamalpur, P.S. Bihpur, District – Bhagalpur. 2. Md. Riyza, S/O Late Abdul Mazid, R/O Village - Jamalpur, P.S. Bihpur, District – Bhagalpur. .... .... Petitioner/s Versus 1. The State of Bihar through Director General of Police, Bihar, Patna. 2. Union of India through General Manager, East Central Railway, Hajipur. 3. Inspector Incharge, Railway Protection Force, Bihpur, District Khagaria. 4. Inspector Incharge, G.R.P. Police, Bihpur, District Khagaria. .... .... Respondent/s Appearance: For the petitioners: M/s. Yogesh Chandra Verma, Senior Advocate. Smt. Soni Shrivastava, Advocate. For the State : Mr. Mahesh Prasad, A.P.P. ===================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH FOR ORDERS 4 17-07-2012 Heard Mr. Y.C. Verma, learned senior counsel for the petitioners and the learned A.P.P. for the State. Both the petitions Patna High Court CR. WJC No.238 of 2012 (4) dt. 17-07-2012 2 / 7 2 have been heard together and are being disposed of by common order. The petitioners of both the writ petitions filed under Articles 226 and 227 of the Constitution of India are either named accused or their involvement transpired in course of investigation of R.P.F. (Bihpur) Case No. 1 of 2009 dated 10.2.2009 registered under Section 3 of the Railway Property (Unlawful Possession) Act. In both the petitions, the prayers made in paragraph no. 1 are as follows:- (i) For issuance of writ in nature of certiorari for quashing of the First Information Report of the R.P.F. (Bihpur) Case No. 01of 2009 wherein petitioners have been named as accused for offences under Section 3 of the Railway Property (Unlawful Possession) Act and also for quashing of the proceedings subsequent thereto. (ii) For issuance of writ in nature of mandamus commanding the respondent authority to act fairly. (iii) Any other relief/reliefs that the petitioner is entitled. The prosecution story is based on the written report of Tarkeshwar Rai who was posted as Inspector at Garhara Railway Protection Force post. It has been alleged in the F.I.R. Patna High Court CR. WJC No.238 of 2012 (4) dt. 17-07-2012 3 / 7 3 that initially on the basis of an information received regarding theft of one 25 H.P. motor pump from old pump house, a case under [STATUTE] was registered by the G.R.P., being G.R.P. (Bihpur) Case No. 6 of 2009 on 8.2.2009. In course of investigation of G.R.P. (Bihpur) Case No. 6 of 2009, the police took assistance of a tracker dog. A police team comprising of G.R.P., R.P.F. and local police was also constituted. On the basis of confidential information received and lead given by the tracking dog, the police party raided the Kabari shop of the petitioners Md. Jahangir @ Md. Munna and Md. Tunna. On seeing the police party, both Md. Jahangir @ Md. Munna and Md. Tunna managed to escape but one person, namely, Kanhaiya Jha was apprehended by the police. In his presence, the police party inspected the kabari shop and recovered the articles stolen away in connection with G.R.P. (Bihpur) Case No. 6 of 2009. Apart from the stolen articles in connection with G.R.P. (Bihpur) Case No. 6 of 2009, large number of Railway properties, such as, fish plate, Junction fish plate, fish bolt, Plate screw, A.C.B. plate, Stairs used at Railway signal and large number of other articles were also recovered from the said Kabari Shop. A separate seizure list with respect to unlawful possession of the railway property recovered from Patna High Court CR. WJC No.238 of 2012 (4) dt. 17-07-2012 4 / 7 4 Kabari Shop in question was prepared by the R.P.F. and for the alleged recovery, the instant case, being R.P.F. (Bihpur) Case No. 1 of 2009 has been registered and investigation was taken up. The petitioners are aggrieved by the institution of the present case. The contention is that the alleged seizure was made from the Kabari Shop of some of the petitioners of Cr. W.J.C. No. 238 of 2012 in course of investigation of G.R.P. (Bihpur) Case No. 6 of 2009 and, as such, there could not have been another F.I.R. for the alleged recovery of the articles. It is also contended that the articles recovered and seized in connection with R.P.F. (Bihpur) Case No. 1 of 2009 from Kabari Shop of Md. Jahangir @ Md. Munna and Md. Tunna had been purchased by due process of law from railway in auction and, as such, it is not correct to say that the articles seized were either stolen or unlawfully obtained. Learned counsel for the petitioners submits that the institution of the present F.I.R. is malafide and thus, in the interest of justice, the same should be quashed. On the other hand, learned counsel for the State submits that there is no illegality in instituting the F.I.R. in question and investigating the same. It is true that in course of Patna High Court CR. WJC No.238 of 2012 (4) dt. 17-07-2012 5 / 7 5 investigation of G.R.P. (Bihpur) P.S. Case No. 6 of 2009, dated 8.2.2009, it came to the notice of the police that the accused per

Applicable IPC Section: 461

Statute Text:
Section 461 of the Indian Penal Code. Dishonestly breaking Open or unfastening any closed receptacle containing or supposed to contain property. Whoever dishonestly or with intent to commit mischief, breaks open or unfastens any closed receptacle which contains or which he believes to contain property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.