Mukesh Chauhan and Kishore vs State of U.P.

Vijay Kumar Verma, J.—Heard Sri Amit Srivastava, learned Counsel for the revisionists, learned A.G.A. for the State and perused the record.

Challenge in this revision preferred u/s 397 of the Code of Criminal Procedure (in short, ''the Cr.P.C.'') is to the orders dated 22.07.2008 and 21.08.2008 passed by Sri Mahesh Nautiyal, the then Addl. Chief Judicial Magistrate (Court No. 27) Agra in criminal case No. 177 of 2007 (State v. Jamuna Prasad Gautam and Ors.) u/s 409 I.P.C. P.S. Lohamandi, Agra.

By the impugned order dated 22.07.2008, the application moved by the accused-revisionists for discharging them from the offence u/s 409 of Indian Penal Code (in short, ''the I.P.C.'') has been rejected and thereafter by the impugned order dated 21.08.2008 charge u/s 409 I.P.C. has been framed against them.

Shorn of unnecessary details, the facts emerging from the record leading to the filing of this revision, in brief, are that on getting information from an informer on 27.12.2006, a raid was made at about 1.00 p.m. by the Inspector O.P.S. Bhati, posted as S.H.O. in P.S. Lohamandi, along with other police personnel at the clinic of Dr. Mahesh Chauhan (revisionist No. 1) situated in Mohalla New Rajnagar P.S. Lohamandi, Agra, where the revisionist No. 2 Kishore and one Jamuna Prasad Gautam were also present. It is alleged that Dr. Mukesh Chauhan and Kishore handed over two plastic bags, from which 150 live cartridges of 303 bore and 1500 empty cartridge of the same bore were recovered. Thereafter, on the same day a raid was made at the house of Jamuna Prasad Gautam and 250 live cartridges of 303 bore and 2500 empty cartridges of the same bore were recovered from two bags. On enquiry by the police personnel, it was stated by these persons that they had purchased these cartridges for Rs. 60,000/- from Assistant Arms Moharrir Sat Pal Sharma of Police Line, Faridabad (Haryana). On the basis of the recovery memo, which was prepared at the time of alleged recovery of cartridges, an F.I.R. was lodged on 27.12.2006 by the Inspector O.P.S. Bhati at P.S. Lohamandi, Agra, where a case u/s 409 and 41/411 I.P.C. at crime No. 356/06 was registered against Jamuna Prasad Gautam, Satpal Sharma, Mukesh Chauhan and Kishore and separate cases u/s 25 Arms Act were also registered against Jamuna Prasad Gautam and both the revisionists at crime No. 357/06, 358/06 and 359/06 in the same F.I.R. After investigation, charge-sheet u/s 409 I.P.C. in crime No. 356 of 2006 was submitted against all the four accused, on which cognizance was taken by the Magistrate concerned and impugned orders were passed thereafter in criminal case No. 177 of 2007. Hence, this revision.

The main submission made by the learned Counsel for the revisionists is that the offence u/s 409 I.P.C. is not made out against the revisionists, as no property was entrusted to them in the capacity of a public servant or in the way of their business as a banker, merchant, factor, broker, attorney or agent and these accused did not dishonestly misappropriated any property. The contention of the learned Counsel is that a person can be charged u/s 409 I.P.C., if any property is entrusted to him in the capacity of a public servant etc. and that property is dishonestly misappropriated by that person and since in the present case neither the revisionists are public servants etc., nor the seized cartridges were entrusted to them in that capacity, hence, there was no occasion for the learned Magistrate to frame charge against the revisionists u/s 409 I.P.C. This contention of the learned Counsel has got force and must be accepted.

Section 409 I.P.C. relates to the offence of criminal breach of trust by a public servant etc. The offence of criminal breach of trust has been defined in Section 405 I.P.C, which reads thus:

Criminal breach of trust. - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust.

The "Explanations" of Section 405 I.P.C. are not relevant in the present case and hence, they are not being extracted.

As would appear from Section 405 I.P.C., the ingredients in order to constitute criminal breach of trust are: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged (ii) of any legal contract made, touching the discharge of such trust." If criminal breach of trust is committed by any public servant etc., then the offence punishable u/s 409 I.P.C. would be made out against him. Keeping in view this legal position, let us now see whether charge u/s 409 I.P.C. could be framed against the revisionists.

In the entire F.I.R., it is nowhere stated that the seized cartridges were entrusted to the accused-revisionists by any other person. From the disclosure statement made by the co-accused Jamuna Prasad Gautam and revisionists at the time of recovery of the cartridges, this fact is borne out that the seized cartridges were purchased by them from the Assistant Arms Moharrir Sri Satpal Sharma of Police Line, Faridabad (Haryana) for Rs. 60,000/-. Even if the entire version of the F.I.R. is accepted to be true, the ingredients of the offence u/s 409 I.P.C. are not available in present case, because the seized cartridges were neither entrusted to the accused-revisionists in the capacity as a public servant or in the way of their business as banker, merchant, factor, broker, attorney or agent nor they dishonestly misappropriated the seized cartridges. When no property was entrusted to these accused, then the question of criminal breach of trust does not at all arise, because the essential ingredients of the criminal breach of trust as mentioned herein-above are that some property must be entrusted to any person or he must have any dominion over the property and such property must have been dishonestly misappropriated by him.

In view of this legal position, the learned Court below has committed gross illegality in framing charge u/s 409 I.P.C. against the accused-revisionists.

Next question that falls for consideration in the present case is whether any offence is made out against the revisionists. Section 410 I.P.C. defines stolen property, which reads thus:

Stolen property.- Property the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property" whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without (India). But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.

Section 411 I.P.C. lays down that "whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

From the record, it transpires that an F.I.R. was lodged by D.S.P. Vijendra Singh on 26.12.2006 at P.S. Sector 31, Faridabad (Haryana), where a case u/s 409 I.P.C. was registered at crime No. 273 of 2006 against E.H.C. Satpal Singh of Police Line, Faridabad. Copy of that F.I.R. is the part of Annexure-I, which shows that certain cartridges were entrusted to E.H.C. Satpal Singh, who was posted in Police Line, Faridabad and on physical verification of the Malkhana (Shastra Bhandar) on 26.12.2006, certain cartridges were found short. On that basis, a case u/s 409 I.P.C. was rightly registered against E.H.C. Satpal Singh. According to the FIR of the present case, the seized cartridges, which are said to have been recovered on 27.12.2006 from the Clinic of the accused-revisionist Mukesh Chauhan were purchased by the revisionists and one Jamuna Prasad Gautam from Satpal (Sharma) of Police Line, Faridabad (Haryana). As such, this fact is borne out that E.H.C. Satpal Singh of Police Line, Faridabad had committed criminal breach of trust by dishonestly misappropriating the cartridges and since the seized cartridges were obtained from the said Satpal Singh by the revisionists and their associate Jamuna Prasad Gautam, hence these cartridges would be deemed to be the ''stolen property'' within the meaning of Section 410 I.P.C, because an offence of criminal breach of trust was committed by EHC Satpal Singh by transferring these cartridges to the accused persons of present case. The accused-revisionists had retained the seized cartridges knowing or having reason to believe the same to be the stolen property.

Hence, the offence punishable u/s 411 I.P.C. is prima facie made out against the revisionists. In addition to the offence u/s 411 I.P.C., these accused have committed the offence punishable u/s 25 Arms Act also, because they were found in possession of live cartridges of 303 bore, for which they had no licence or authority.

In view of the foregoing discussion, there was no justification to frame charge against the revisionists u/s 409 I.P.C. It is very surprising and unfortunate too that due to lack of adequate legal knowledge, the Court below has passed wholly illegal orders.

Consequently, the revision is allowed. Both the impugned orders including the charge u/s 409 I.P.C. are set aside. The Court below is directed to frame fresh charges against the revisionists keeping in view the observations made in this order.

The Registrar General is directed to send a copy of this order through District Judge concerned to Sri Mahesh Nautiyal, the then Addl. Chief Judicial Magistrate (Court No. 27) Agra for his future guidance and improving legal knowledge.