IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.18987 OF 2008 SHASHI KUMAR @ SHASHI BHUSHAN PRAKASH, SON OF SRI CHHATHU LAL PRAKASH, RESIDENT OF BIHAR STATE ELECTRICITY COLONY, QUARTER NO. CAB/C-1, PATEL NAGAR, POLICE STATION SHASTRINAGAR, DISTRICT PATNA VERSUS THE STATE OF BIHAR ******** 2 21/08/2009 Heard learned Counsel for the petitioner and the A.P.P. appearing on behalf of the State. Three persons were apprehended by the Officer-in-charge, Shastrinagar Police Station on 21.03.2006 at 05:30 PM and since recovery of arms was made from the patrolling party, a case under Section 25(1-B)A, 26 and 35 of the Arms Act was instituted against the apprehended persons. Their names are Sunny Kumar @ Kumar Pratiyush, Vijay Kumar and Prakash Tiwary. It has been stated by the apprehended person, namely Sunny Kumar in the said First Information Report that he along with others were going to kill the present petitioner Shashi Kumar @ Shashi Bhushan Prakash as it has been alleged that the petitioner had taken a loan of Rs. 12,000/- and a nokia mobile phone from him and not returned the same. On the basis of the statement, a First Information Report was instituted against this petitioner under Section 406 of the Indian Penal Code. Learned Counsel for the petitioner submits that a person who is made accused in a case under the Arms Act and makes statement before the Patrolling Party that he 2 was going to kill a particular person should infact be allowed to institute an First Information Report alleging that his motive for carrying illegal arms was for a particular purpose which is patently illegal and constitutes an offence in itself is surprising. It is even stranger that on the basis of the said First Information Report, the Investigating Officer should proceed and make investigation alleging that the petitioner had infact taken the said Rs. 12,000/- or the mobile phone. It is easy for the accused persons to state without producing any documentary evidence that a man had borrowed some money from him and it is equally easy to give the nokia phone number of a person with whom he is familiar and allege that it belongs to him. Learned Counsel submits that infact no recovery of mobile phone was made from this petitioner. Section 405 of the Indian Penal Code is the section which defines criminal breach of trust. In order to constituting an offence under the criminal breach of trust, it has to be prima facie shown that a person was entrusted with some property and he has dishonestly misappropriated the property in question and converted it to his own use. In a case of this nature, where the accused in a case under the Arms Act alleges that he had give some money to a particular person and was going to commit murder of the person concerned, on the ground that he had borrowed the 3 money, under no circumstances constitute an offence under Section 406 of the Indian Penal Code especially as there is no documentary proof of borrowing the money. Learned Counsel submits that in any event, if at all the petitioner had taken a loan from Sunny Kumar then the remedy would be of a civil nature and if he was able to show prima facie that he had borrowed the money in question. It would have been also appear to this Court that if Sunny Kumar had infact instituted a case earlier to the institution of the case under the Arms Act alleging criminal breach of trust or misappropriation, then perhaps this Court would be reluctant to interfere in the matter. This Court finds that the very inception of the case for an ulterior motive, which is actually beyond the comprehension of any right thinking person. This Court finds in the facts of this case that the criminal proceeding is unwarranted and the offence is not made out under Section 406 of the Indian Penal Code and as such the order taking cognizance dated 05.02.2007 passed by the Judicial Magistrate, 1st Class, Patna in Shastrinagar Police Station Case No. 281 of 2006 is hereby quashed. In the result, this application is allowed. Anand ( Sheema Ali Khan, J. )