Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.16280 of 2010 ====================================================== Mrityunjay Narayan Lokesh son of late Rameshwar Ram, Resident of Village-Dostia Tola P.O. Araria, P.S. Sonbarsa, Distt-Sitamarhi. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Ram Ekbal Mahto son of late Subdar Mahto R/O Vill-Mohanpur, PS. Sitamarhi, Distt- Sitamarhi. .... .... Opposite Party/s ====================================================== For the petitioner:- Mr. Shailendra Kr. Singh, Adv. Mr. Ajay Kumar Tiwary, Adv. For O.P. No.2:- Mr. Pushpendra Kr. Singh, Adv. For the State :- Mrs. Pushpa Sinha-2, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 3 19-07-2012 Heard learned counsel for the petitioner, learned counsel of the O.P. No.2 as well as learned Additional P.P. for the State. 2. Petitioner has challenged the order dated 19.01.2010 passed by Sri Prakash Paswan, Judicial Magistrate, 1st Class, Sitamarhi in G.R. Case No. 1009/2004, Sitamarhi P.S. 255/2004 wherein cognizance has been taken under [STATUTE] , through which the prayer of the petitioner to discharge was rejected by the learned lower court. Against the order of the cognizance dated 01.05.2009 the other accused, Ganesh Singh and Mahesh Singh have challenged the same under Cr.Misc. No. 25139 of 2009 and the same was allowed vide order dated 09.04.2012. Patna High Court Cr.Misc. No.16280 of 2010 (3) dt.19-07-2012 2 3. In the aforesaid background, it has been submitted on behalf of the petitioner that case of the petitioner stands on much better footing than that of above named two co-accused because of the fact that the alleged deed of gift did not stand in his name apart from the fact that he happens to be resident of different village. Not only this, it has also been submitted that there happens to be no specific allegation alleged against him and that happens to be reason behind that the learned lower court slipped to discuss the nature of evidence whatever been collected by the I.O. during course of investigation and simply because on the ground that cognizance had already been taken for an offence punishable under [STATUTE] rejected the prayer. So on merit as well as taking into account the order passed under Cr.Misc. No. 25139 of 2009, petitioner is entitled for discharge. 4. On the other hand, learned counsel for O.P. No.2 fairly concedes that the aforesaid Cr.Misc. No. 25139 of 2009 was drawn up at the behest of co-accused, Ganesh Singh and Mahesh Singh and the same was allowed vide order dated 09.04.2012 after elaborately dealing with the merit of the case. However, distinguished the stage of the case and submitted that for the present it is a stage of charge/discharge and so the implication of order passed under said Cr. Misc. will not be applicable. Patna High Court Cr.Misc. No.16280 of 2010 (3) dt.19-07-2012 3 5. Learned APP supports the finding of the learned lower court. 6. Instead of dealing with merit of the case, the order dated 09.04.2012 passed in Cr. Misc. No. 25139/2009 has been gone through. The rival argument along with merit of the case have already been discussed therein and consequent thereupon petition was allowed. The same material happens to be subsisting against the petitioner and so the said privilege has also to be allowed to be availed by the petitioner also. 7. In the aforesaid facts and circumstances of the case, order dated 19.01.2010 passed by Sri Prakash Paswan, Judicial Magistrate, 1st Class, Sitamarhi in G.R. Case No. 1009/2004, Sitamarhi P.S. 255/2004 is set aside. 8. Thus, petition is allowed. perwez./- (Aditya Kumar Trivedi, J)

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.