Brij Bhushan Sarma vs State of Madhya Pradesh

C.V. Sirpurkar, J.—1. This miscellaneous criminal case has been instituted on application under section 482 of the Code of Criminal Procedure, filed on behalf of accused Brij Bhushan Sharma in Crime No. 310/2014 registered under sections 409, 420, 466, 467, 177 & 193 of the Indian Penal Code by P.S. Pandhurana, District Chhindwara. The application under section 482 of the Code of Criminal Procedure has been filed for quashing the criminal proceedings arising from Crime No. 310/2014.

The facts giving rise to this miscellaneous criminal case may briefly be stated thus. At around 5:00 a.m. on 30-05-2014, the President of Pandhurana block of Shiv Sena was alerted on telephone by an unknown person that some people are taking cows and bullocks etc. on foot, towards Bhardar Gori. Consequently, volunteers of Shiv Sena and Bajranj Dal reached the spot and accosted those persons. They ran away leaving 104 animals behind. The volunteers brought the animals to P.S. Pandhurana. The animals were seized by ASI A.P. Dubey and they were examined by Veterinary Surgeon Dr. Ketan Pandey. The police tried to admit the animals in a facility at Dadadham, Tehrakhapa, Gaushala, about 25 k.ms. away. However, the Manager declined to admit such a large number of cattle; whereon, as per the case of the police, the animals were given in the temporary custody of Manoj Tadam and Mannu Bhalavi for their protection on 30-05-2014. Crime No. 245/2014 was registered in P.S. Pandhurana under sections 4, 6 & 9 of Madhya Pradesh Govansh Pratishedh Adhiniyam, 2004, 11(1) of Pashu Krurta Nivaran Ahiniyam, 1960 and sections 6, 7, 10 & 11 of Madhya Pradesh Krishi Upyogi Pashu Sarankshan Adhiniyam, 1994 was registered against unknown persons and taken into investigation.

Subsequently, on 18-06-2014, an application was moved in the Court of JMFC, Pandhurana, stating that the police had given the animals to butchers and have not even informed the Court as to whom the animals have been given in temporary custody. Admittedly, the petitioner Brij Bhooshan Sharma was the Town Inspector and Station House Officer of P.S. Pandhurana, during the relevant period. On 18-06-2014, on aforesaid application, JMFC, Pandhurana, called for a report from P.S. Pandhurana. On 19-06-2014, the report was submitted along with the case diary. It was stated in the report that the investigation is on in Crime No. 245/2014. A perusal of the case diary revealed that an application purportedly filed by Manoj Tadam and Mannu Bhalavi for giving the animals in their temporary custody, was found. However, the application was not signed either by the Investigating Officer or by SHO P.S. Pandhurana. No entry with regard to aforesaid application was made in the case diary. There was an "Hifazatnama" appended to the case diary, wherein it was mentioned that the animals are being given in temporary custody of aforesaid Manoj Tadam and Mannu Bhalavi; however, there were no signatures of either the Investigating Officer or Station House Officer on aforesaid Hifazatnama. Again, there was no mention of aforesaid Hifazatnama in the case diary.

Consequently, another report was called for from SHO P.S. Pandhurana. On 21-06-2014, the report was submitted by P.S. Pandhurana, wherein it was stated that the aforesaid 104 animals seized in Crime No. 245/2014, were forwarded with constable Tikaram to Dadadham Tehrakhapa Gaushala; however, since there was not enough accommodation in the Gaushala, the animals were given in the temporary custody of Manoj Tadam and Mannu Bhalavi. Since, the learned JMFC was not satisfied with the report submitted by P.S. Pandhurana, the SHO was directed to produce the animals along with aforesaid Manoj Tadam and Mannu Bhalavi and Veterinary Surgeon Dr. Ketan Pandey on 25-06-2014 bu SHO did not comply with the order. Consequently the Court again directed the SHO to keep the animals and aforesaid Manoj Tadam and Mannu Bhalavi present on 28-06-2014. On that date, no animals were produced but Mannu Bhalavi was present. He stated before the Court that he was only asked to graze the cattle and the cattle were never given in his custody. He was simply made to sign the Hifazatnama by the police. He also stated that Manoj had come to the Court but he ran away because he had signed blank papers. On the basis of statement of Mannu, the Court reached the conclusion that the animals were never properly given in the custody of aforesaid Mannu. Consequently, SHO P.S. Pandhurana was directed to produce the animals on 03-07-2014 and also produce Manoj Tadam. On 03-07-2014, Manoj was produced in the Court. He stated that about 8-15 days back he was working on a bridge being constructed across river Vardha. The police came and asked him to graze the cattle. Thereafter, he and Mannu started grazing the cattle given to them by the police but he did not know as to how many animals were given in his custody. He further stated that police had asked him to go to the police station and sign a paper but he did not know as to why his signatures were taken. During his visit to the Court on 28-06-2014, he felt ill; therefore, he went to Wadegaon. He did not know where the cattle were.

P.S. Pandhurana was also directed to produce the animals on 07-07-2014. At around 3:45 p.m. Sub Inspector R.P. Gaydhane appeared in the Court and informed that the animals were about 5 k.ms. away and would be produced within half an hour. However, till 5:00 p.m. the animals were not produced. At around 5:00 p.m. SHO B.B. Sharma appeared and informed the Court that the animals were being brought to the Court and would be produced within half an hour. He also stated that 3 or 4 animals have perished. In aforesaid circumstances, learned Magistrate reached the conclusion that the SHO was dillydallying the matter. The case was fixed for 08-07-2014. At around 12 p.m. on 08-07-2014 it was informed by Sub Inspector R.P. Gaydhane that the animals were brought to the premises of Krishi Upaj Mandi, adjacent to the Court; whereon, learned Magistrate accompanied by learned counsel for the applicants, ADPO, Akhilesh Gangare and Veterinary surgeon Ketan Pandey inspected the animals. There were only 84 animals in the premises. No explanation was offered for remaining 20 animals. Veterinary surgeon Ketan Pandey examined the animals and on the basis of detailed reason, expressed opinion that 84 animals produced by SHO Pandhurana in the Court, were not the same animals that were examined by Veterinary surgeon on 30-05-2014.

On the basis of aforesaid circumstances, learned Magistrate recorded a finding that the police officers, who were entrusted with the custody of 104 animals in Crime No. 245/2014 had criminally misappropriated them by forging documents; therefore, in exercise of powers under section 310 of the Code of Criminal Procedure the police were directed to register offence under sections 409, 466 and 167 of the Indian Penal Code and intimate the Court accordingly. The 84 animals were sent to Kanji house.

Consequently, Crime No. 310/2014 under aforesaid and other provisions was registered in P.S. Pandhurana, District Chhindwara, against B.B. Sharma, R.P. Gaydhane, Sub Inspector A.P. Dubey and head constable Khoob Singh. The registration of Crime No. 310/2014 and the criminal proceedings arising therefrom, have been challenged on behalf of the then SHO Brij Bhooshan Sharma mainly on the following grounds: Though petitioner B.B. Sharma was SHO of P.S. Pandhurana during the relevant period, at 9:05 a.m. on 29-05-2014, he had left for Talegaon (Maharashtra) in connection with Crime No. 175/2014 registered under sections 376(1)(gh) and 397 of the Indian Penal Code along with S.I. Gaydhane. He had given charge of the police station to S.I. A.P. Dubey. He returned only at about 5:30 p.m. on 30-05-2014. Thus, he was not present in the police station when cattle were brought to it. There is nothing specific in the report lodged by learned JMFC against petitioner B.B. Sharma. No role was played by the petitioner in the whole affairs. The entire responsibility lies with co-accused persons R.P. Gaydhane and A.P. Dubey. Learned Magistrate had no jurisdiction to record statement under section 310 of the Code of Criminal Procedure. An inquiry was conducted by the SDOP Police Chourai, District Chhindwara in the matter and in his report dated 12-08-2014 submitted to the Superintendent of Police, Chhindwara, he had opined that no evidence is available against petitioner B.B. Sharma regarding sale of the seized animals to the butchers or regarding forgery of documents. Therefore, it has been prayed that the proceedings against the petitioner be quashed.

Learned Panel Lawyer for the respondent/State on the other hand has supported the order dated 10-07-2014 passed by the JMFC on the ground that a detailed and cogent order has been passed by learned JMFC, which should not lightly be interfered with.

On due consideration of the record of the case and rival contentions, this Court is of the view that this application under section 482 of the Code of Criminal Procedure must fail for the reasons hereinafter stated.

It may be noted here that Crime No. 310/2014 was registered by P.S. Pandhurana on the direction of learned Judicial Magistrate First Class, Pandhurana given in order dated 10-07-2014. The first and the main contention raised on behalf of the petitioner is that though he was SHO of P.S. Pandhurana during the relevant period, he had left the police station at around 9:00 a.m. on 29-05-2014 in connection with the investigation of Crime No. 175/2014 of P.S. Pandhurana and had returned to the police station only on 5:30 p.m. on 30-05-2014. He had handed over the charge of the police station to ASI A.P. Dubey. This fact is also supported by statement of Sanjay Ingole, a member of Shiv Sena, who had accompanied cattle to the P.S. Pandhurana. In support of the contention, copies of Roznamcha Sanha Nos. 1596 dated 29-05-2014 and 1673 dated 30-05-2014 of P.S. Pandhurana have also been filed. In report dated 12-08-2014 prepared by SDOP Police, it has been held that petitioner B.B. Sharma was not in the police station from 29-05-2014 to 04-06-2014. During aforesaid period, he returned to P.S. Pandhurana only for short durations and the charge of the police station was with Sub Inspector R.P. Gaydhane.

Even if it is assumed for the sake of argument that SHO B.B. Sharma was away from police station during 29-05-2014 to 04-06-2014, it may be noted that the application against the police was filed on 18-06-2014. Between that date and 10-07-2014, when the order for registration of offences against petitioner B.B. Sharma was passed by the Court, B.B. Sharma was Station House Officer. Learned Magistrate repeatedly directed the SHO P.S. Pandhurana to produce the animals, the alleged custodians of the cattle and the veterinary surgeon; however, it is clear from order dated 10-07-2014 that SHO kept stalling the matter until he was absolutely compelled to produce the animals. The first report was called by the Court on 19-06-2014. The SHO was responsible for preparation of the report. As per statement of Manoj Tadam made to the Court on 03-07-2014, he was entrusted with the cattle about 8-15 days before the said date. Thus, it appears that the cattle were not entrusted to his custody on 30-05-2014 as stated earlier. As per Court order dated 10-07-2014, SHO B.B. Sharma appeared in the Court and informed that the cattle would be produced in half an hour and 3 or 4 animals had died. Thus, it was clear that the animals were produced before the Court under the supervision of the SHO. Ultimately SHO could produce only 84 animals instead of 104 animals, seized on 30-5-2014. Veterinary surgeon, on detailed examination and giving satisfactory reasons, reached the conclusion that the animals produced before the Court were not the same animals that were examined by him in P.S. Pandhurana on 30-05-2014. Thus, prima facie, the complicity of petitioner B.B. Sharma, SHO P.S. Pandhurana, in the crime cannot be denied on the ground that he was not in charge of the police station on the date on which the cattle were seized and allegedly given in temporary custody.

The second ground that has been raised on behalf of the petitioner is that learned Magistrate had no jurisdiction to record the statement under section 310 of the Code of Criminal Procedure. It is true that section 310 pertains to local inspection by any Judge or a Magistrate and does not specifically confers right upon the Magistrate to record any statement on the spot; however, in this case, learned Magistrate had simply visited the place where the animals were kept. Even if she had not visited the spot, she could have arrived at the conclusion that the animals produced in the Court were not the same animals that were seized in P.S. Pandhurana and at least 20 animals were missing without any explanation, on the basis of other material on record. Thus, this argument cannot be given undue weightage.

Another argument that has been advanced on behalf of the petitioner is that cattle were seized by Assistant Sub Inspector A.P. Dubey and given in temporary custody. During that period, the petitioner was not incharge of the police station. Later the case was entrusted to Sub Inspector Gaidhane for investigation. As such, the petitioner had not role to play in the alleged offence. However, as has been held in the preceding paragraphs, even if it is assumed for the sake of arguments that the petitioner was not directly incharge of the police station on 30-05-2014 and subsequently the matter was handed over to Sub Inspector Gaidhane for investigation, the complicity of SHO in the crime is prima facie established.

The last argument that has been advanced on behalf of the petitioner is that in his inquiry report dated 12-08-2014 the SDO Police Chhindwara, has held that there is no evidence against SHO B.B. Sharma with regard to handing over of animals to butchers and preparation of the forged documents but it may be noted that in report dated 12-08-2014, the subsequent conduct of the petitioner has not been taken into consideration. Though, the statement of the witnesses to the effect that animals produced before the Court were the same animals that were seized in P.S. Pandhurana, have been believed but no mention has been made of the opinion of the Veterinary surgeon that the animals were different. The animals were produced before the Court under the supervision of the SHO and there was no explanation as to why 20 animals were found to be missing. In any case, the internal administrative inquiry by a police officer cannot be given precedence over a detailed and cogent judicial order passed by a Magistrate of first Class recounting the acts of omission and commission committed by the petitioner.

On the basis of foregoing discussion, this Court is of the view that no grounds have been made out for interdicting the proceedings arising from the first information report in Crime No. 310/2014 registered by P.S. Pandhurana on the directions of a competent Court.

Consequently, this miscellaneous criminal case is dismissed.