Case Facts:
Patna High Court Cr.Misc. No.14024 of 2012 (3) dt.26-07-2012 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.14024 of 2012 ====================================================== Shri Mahto @ Shree Mahto S/O Nathuni Mahto Resident Of Village- Koeriya, Tola, Raxaul, P.S.- Raxaul, District- East Champaran .... .... Petitioner Versus 1. The State Of Bihar .... .... Opposite Party ====================================================== Appearance: For the Petitioner : Mr. Ram Adya Singh, Advocate For the State : Mr. Md Ansarul Haque, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL ORDER --------- 3 26.07.2012 Heard learned counsel for the petitioner as well as learned Addl. Public Prosecutor and, in my view, this petition can be disposed off on admission stage itself. Petitioner has invoked extra-ordinary power of this court for quashing the order dated 27.2.2012 passed by learned 5th Addl. Sessions Judge, Motihari, East Champaran in Criminal Revision no.394/2004 by which and whereunder he dismissed the aforesaid Criminal Revision no.394/2004 affirming the order dated 10.2.2003 passed by learned Sub divisional Judicial Magistrate, Raxaul in Raxaul P.S. case no.107/2002 by which he took cognizance under [STATUTE] against the petitioner. The brief fact, which lies to file this quashing petition, is that ASI, Raxaul police station – Sri Binod Kumar Yadav, having got confidential information, raided the house of the petitioner and apprehended one Niraj Kumar @ Bablu whereas two persons managed to escape from there. The aforesaid accused Niraj Kumar @ Bablu Patna High Court Cr.Misc. No.14024 of 2012 (3) dt.26-07-2012 2 disclosed that he was munshi of Rakesh Kumar who had a godown in the house of the petitioner. After the aforesaid disclosure, the aforesaid ASI raided the above stated godown situated in the house of petitioner in presence of the aforesaid Niraj Kumar @ Bablu and other witnesses and recovered 173 bags of Dalda from the aforesaid godown and accordingly, he prepared seizure list and instituted Raxaul P.S. case no.107/2002 for the offences under [STATUTE] . Investigation commenced and after due investigation, police submitted charge sheet against Rakesh Kumar and Niraj Kumar @ Bablu for the offences under [STATUTE] whereas petitioner was not sent up for trial as the accusation against him was found untrue. Having receipt of the aforesaid charge sheet learned Sub divisional Judicial Magistrate, Raxaul differed with the findings of the police and having relied upon several paragraphs of the case diary, passed the impugned order taking cognizance of the offences against the petitioner also. Being aggrieved by the aforesaid order dated 10.2.2003, petitioner preferred Criminal Revision no.394/2004 but the same was dismissed by learned 5th Addl. Sessions Judge, Motihari, East Champaran passing impugned order as stated above. Learned counsel appearing for the petitioner submits that the real owner of the aforesaid Dalda filed release petition before learned Sub divisional Judicial Magistrate, Raxaul and after that learned Sub divisional Judicial Magistrate, Raxaul called for a report from the Patna High Court Cr.Misc. No.14024 of 2012 (3) dt.26-07-2012 3 concerned police station and it was reported by the concerned police station that seized dalda belonged to one Om Prakash Gupta who had purchased the aforesaid dalda from Anpurna Bhandar, Gopalganj and he had valid paper in respect of the seized article and having considered the documents and other pros and cons of the case, learned Sub divisional Judicial Magistrate, Raxaul released the seized Dalda in favour of Om Prakash Gupta vide order dated 12.9.2002. It is further contended by him that, as a matter of fact, father of the petitioner had given one room of his house on rent to the aforesaid Om Prakash Gupta and agreement of tenancy was executed which is evident from perusal of annexure 4 to this petition and therefore, the aforesaid fact clearly goes to show that the prosecution of the petitioner in the present crime is nothing but only an abuse of the process of the court because no case is made out against the petitioner. Learned Addl. Public prosecutor appearing for the State supported the impugned order. Having heard the aforesaid contentions of both the parties and have gone through the record along with case diary of Raxaul P.S. case no.107/2002. From perusal of the relevant paragraphs of the case diary, it would appear that the witnesses have supported the factum of the recovery from the godown situated in the house of the petitioner but it is explicit clear from the first information report itself that when co- accused Niraj Kumar @ Bablu was arrested by the police, he disclosed this fact that he was Munsi of Rakesh Kumar and the seized dalda belonged to the aforesaid Rakesh Kumar. Annexure 4 to this petition reveals that room, from which Patna High Court Cr.Misc. No.14024 of 2012 (3) dt.26-07-2012 4 alleged recovery has been made, had already been given on rent to Om Prakash Gupta who happens to be father of co- accused Rakesh Kumar. It would further appear from perusal of order dated 12.9.2002 passed by learned Sub divisional Judicial Magistrate, Raxaul in the above stated case that seized Dalda had already been released in favour of Om Prakash Gupta after verifying the relevant documents of the aforesaid seized article. In the aforesaid circumstance, I do agree with the submissions of learned counsel for the petitioner that the continuance of the prosecution of the petitioner in the present case is nothing but only abuse of the process of the court as no case is made out against him and, in my view, learned Sub divisional Judicial Magistrate, Raxaul committed an error in differing with the findings of the police. Furthermore, I am

Applicable IPC Section: 420

Statute Text:
Section 420 of the Indian Penal Code. Cheating and there by dishonestly inducing delivery of property, or the making, alteration or destruction of a valuable security. Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.