IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.11835 of 2000 TULSI SINGH @ TULSI PRASAD SINGH & ORS Versus STATE OF BIHAR ----------- 8/ 2.7.2010 Heard Shri Md. Farooque Ahmad Khan, learned senior counsel for the petitioners and Shri Damodar Tiwary, learned A.P.P. for the State. A truck and a car, description of which are mentioned in Annexure 1 to the present petition, were found stationed on the High Way at a particular place as described in the FIR. The truck was consigned with scraps and at the time the police reached there, there was neither the driver nor the cleaner present on or around the vehicle. Likewise, a car was also found there and a man was standing who pointed out that some mechanical defect had developed in the vehicle and the driver had gone to bring a mechanic for correcting that defect. On enquiry, the man who was standing near the vehicle could not give the name of the driver. Not finding the driver nor cleaner near the truck and also not the real name of the driver of the car coming from the man who was present there, gave rise to the suspicion in the mind of the informant that the two vehicles were stolen 2 property. Accordingly, the two were seized and Giriyak P.S. Case no. 111 of 1997 was registered under section 414 of the IPC. During the course of investigation as may appear from paragraphs of the case diary itself, like, paragraphs 27, 30, 37, 38 and 42, the documents were the certificates of ownership, payment of tax and weighment of the consignment which the truck was carrying, were all produced and the police recorded that in the case diary. The documents produced before it indicated that those were properly owned properties and the consignments were properly consigned from its initiation to its destination. In spite of that, the police reached a conclusion, because the superior police officers were pointing out through their supervision note that it could be a case under section 414 of the IPC. In the whole of the case diary, there was no material to suggest that those were theft properties and there was any case of theft instituted anywhere indicating that either vehicles were obtained through theft or the consignment which had been loaded on the truck were the subject matters of any case registered for the theft of the same. The Chief Judicial Magistrate who received the police 3 report also appears proceeding to take cognizance of the offence under section 414 of the IPC and when it came to the trial court, the petitioners raised the question of there being no offence which could be said to be committed on the facts of the case by them and as such, the court being not competent to try them, requested the court to discharge them from the proceedings. The learned Magistrate who passed order on 24.3.2000 perused the materials and also perused the relevant provision under section 239 of the Code of Criminal Procedure and went on to say that it transpired to him, only because cognizance of the offence under section 414 of the IPC had been taken that the accused had committed the offence and they were to be tried by framing charge under section 414 of the I.P.C. While passing the impugned order, the learned Magistrate referred to a few paragraphs of the case diary and those paragraphs have been placed before me also during the course of hearing of the present petition. Merely perusing the provision of the Code of Criminal Procedure may not give rise to an order of the nature as was passed by the magistrate. It was desirable of the magistrate that he could have understood the import of the provision as to what was required to be shown and indicated 4 after perusal of the police record so as to framing charges against an accused for proceeding with his trial under Chapter XIX A of the Code of Criminal Procedure. Mere reading of the provision may indicate that from the provision of section 239 of the Code, the court has to be satisfied that from the materials available to it from the police record the accused appears committing an offence which the court was competent to try and adequately punish under Chapter XIXA of the Code. So the first thing for the court was that it should have made an enquiry that from the fact of the case which was presented to him through the police report, whether an offence appeared committed by an accused or not. The offence could be said to be committed only when the facts submitted to the court do constitute different ingredients of offence. If any of the ingredients is not found constituted by the facts presented to the court, then the court cannot record the finding that any offence appeared committed by the accused. If the court had taken pains of perusing the provision of section 414 of the Code it could have found that the said offence could be said to be constituted only when it was shown that the property which the accused was voluntarily assisting in 5 concealing or disposing of, was one which was stolen. Besides, the next thing about which the court had to be satisfied was that the property was stolen, well within the knowledge of the accused or he had substantially good reasons to believe that the property was obtained through theft. If these ingredients were not indicated by the facts of the case, then no Court could proceed to frame the charge under section 414 of the IPC. I have perused the case diary with the assistance of the counsel for the parties and from the perusal of the whole of the case diary, it appears that there is no mention that the properties were the properties which could be said to be obtained through theft. There were valid documents produced before the police indicating the ownership not only of the two vehicles destined to its destination, the document was available to the police indicating that the consignment had been weighed and then consigned. These were the facts which could have been considered by the court below. Unfortunately, the learned Magistrate was more concerned about the order of cognizance being passed blindly, if I am permitted to say so, by the court of learned Chief Judicial Magistrate. It may be pointed out to the magistracy of the state that orders of cognizance are never 6 germane for passing the order framing charge or discharging an accused. Real considerations are considering the facts of the case which have been brought on record either through the police report or through the evidence of witnesses under section 244 of the Code if the case is to be tried under Chapter XIX of the Code. It is invariably being seen that the Magistrates do not apply their judicial minds to the facts of the case and are found heaping extreme hardships of enduring the trial upon accused persons which is, generally, protracted. After having considered the materials on record, the Court finds that there was no justifiable facts available to the magistrate for passing the order which is sought to be quashed through the present petition. In the result, the order dated 24.3.2000 passed in G.R. No. 1939 of 1997 / Tr. No. 237 of 2000 by the Judicial Magistrate Ist Class, Biharsharif, Nalanda is quashed which ultimately shall terminate the proceeding against the petitioners. The petition stands allowed. Anil/ ( Dharnidhar Jha, J.)