IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.47003 of 2008 Rakesh Kumar @ Rakesh Kumar Gupta Son of Naresh Prasad Gupta, Resident of Village- Saida Bazar Hilsa, Police Station Hilsa, District- Nalanda. -----------------Petitioner Versus The State of Bihar ------------------Opposite Party ---------------------------------- 8. 16.12.2011 Heard learned counsel for the petitioner and Mr. Jharkhandi Upadhayay learned A.P.P. for the State. The present application under Section 482 of the Code of Criminal Procedure, 1973 has been filed for quashing the order dated 24.6.2008 passed by the Additional Chief Judicial Magistrate, Hilsa (Nalanda) by which he has taken cognizance under Sections 379 and 411 of the Indian Penal Code against the petitioner in Ekangarsarai P.S. Case No. 34 of 2008 (G.R. No. 216 of 2008). The said Police case was instituted on the basis of a written complaint by the Officer-in-Charge of the Police Station concerned in which it was alleged that on confidential information he raided the place of occurrence where he found that some labourers were unloading coal from a truck and that the same was being done for the petitioner. During raid by the police, the petitioner was caught. The allegation is that no valid papers with regard to the coal was produced at the time 2 when the raid was conducted and upon query the petitioner disclosed that he had bought the coal from the smugglers at cheap rate and the same was loaded and brought for sale by the petitioner. It is thus alleged that stolen coal for wrongful gain was recovered by the petitioner. The police after investigation have submitted charge sheet leading to the order taking cognizance which is impugned herein. Learned counsel for the petitioner submits that the petitioner had valid documents to show that the coal was legal inasmuch as he had brought on record receipt showing that the coal has been brought from the authorized person and also the chalan issued by the Commercial Taxes Department of the State of Jharkhand and that the coal was loaded at different places prior to the date of occurrence on the truck bearing the same number. He submits that on basis of the same the coal and vehicle was also released in favour of the petitioner and the police have in fact admitted to the veracity and genuineness of such documents. Learned counsel submits that in that view of the aforesaid, this case would fall in the first category of cases which has been held by the Hon’ble Apex Court in the case of State of Haryana Vs. Bhajan Lal reported in 1992 Supplementary (1) S.C.C. 335 where it is held 3 that if no offence is made out from the plain reading of the F.I.R. itself then the proceeding should be quashed at that very stage since it would amount to the abuse of the process of the Court to let such proceeding continue. Learned counsel submits that even in the chargesheet the police have clearly opined that much information or progress could not be made with regard to the investigation in the case and chargesheet has been submitted. Learned A.P.P. for the State on the other hand submits from the case diary, which had been called for by this Court, that sufficient materials did exist and the Court below cannot be faulted in taking cognizance since it is not a case based on no material. He further states that from the plain reading of the F.I.R. it transpires that no valid or legal papers with regard to the seized coal could be placed at the time when the raid was conducted and thus inference that the same was stolen was not misplaced. Considering the facts and circumstances of the case, this Court is prima facie of the opinion that there are sufficient materials in favour of the petitioner to show that the coal may not have been illegal and stolen. However, this Court feels that it is not in a position to adjudicate on the facts as submitted by the petitioner 4 and in support of which he has filed certain documents. For the reasons aforementioned, the application is disposed off with liberty to the petitioner to file appropriate application for discharge before the Court concerned. If such petition is filed within five months from today along with a copy of this order, the Court below shall consider and take into account all the materials and documents which may be produced by the petitioner and pass appropriate orders. The Court shall not be prejudiced by the fact that this Court did not interfere in the order taking cognizance. The case diary may be sent to the Court below. Anand Kr. (Ahsanuddin Amanullah, J.)