21 +0530 Mohalla Masanganj, Police Station Civil Line, Bilaspur C.G v. • State of Chhattisgarh, Through District Magistrate, Bilaspur C.G. CRR No. 6
Case Details
1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 638 of 2012 Order Reserved on 21.01.2025 Order Delivered on 05.02.2025 • Rakesh Mishra, S/o Mishri Lal Mishra, aged about 40 Years, R/o Digitally signed by AKHILESH BEOHAR Date: 2025.02.05 15:31:21 +0530 Mohalla Masanganj, Police Station Civil Line, Bilaspur C.G. --- Applicant versus • State of Chhattisgarh, Through District Magistrate, Bilaspur C.G. CRR No. 652 of 2012 --- Non-applicant • Anand Tiwari, S/o Bhulau Prasad, aged about 42 Years, R/o Ashok Nagar, Sarkanda, Bilaspur, Distt. Bilaspur C.G. ---Applicant Versus • State of Chhattisgarh, Through the District Magistrate, Bilaspur C.G. --- Non-applicant For Applicants
Legal Reasoning
: Mr. Vinay Dubey, Mr. Shashi Bhushan Tiwari & Mr. Siddhant Tiwari, Advocates. For State : Ms. Smita Jha, Panel Lawyer. Hon'ble Shri Justice Radhakishan Agrawal CAV Order 1. Both these criminal revisions filed under Section 397/401 Cr.P.C. are directed against the judgment of conviction and order of sentence dated 26.09.2012 passed by the Second Additional Judge to the Court of First Additional Sessions Judge, Bilaspur, C.G. in Criminal Appeals No.07/2008 & 04/2008 respectively, whereby the applicants were convicted and sentenced as under:- 2 Conviction of applicant-Anand Tiwari in CRR No. 652 of 2012 Sentence Under Section 409 of Indian Penal Code (for short 'IPC') Rigorous Imprisonment for one year and fine of Rs.500/- Conviction of applicant-Rakesh Mishra in CRR No. 638 of 2012 Under Section 411 of IPC Sentence Rigorous Imprisonment for six months and fine of Rs.300/- 2. Case of the prosecution, in brief, is that on 08.07.1996, complainant- Gulab Sonkar (not examined) made a complaint before ADM, Bilaspur to the effect that he purchased some books from Mishra Pustakalaya, Gole Bazar, Bilaspur wherein the words 'free distribution to SC/ST children - Not for Sale' were mentioned which were erased by stamp pad. Upon such complaint, the said ADM, S.K. Behar (PW-8) searched alleged shop of the applicant-Rakesh Mishra and total 129 books were allegedly seized from his shop. Subsequently, statement of applicant-Rakesh Mishra was recorded by ADM, S.K. Behar (PW-8) where applicant-Rakesh Mishra disclosed that the books were purchased by him from one 'Tiwari Babu'. During investigation, some relevant papers were seized by ADM, S.K. Behar (PW-8) which were handed over to the police later on. After due investigation, ADM, S.K. Behar (PW-8) lodged a written complaint vide Ex.P-11 in the police station Kotwali, Bilaspur, C.G., upon which, offence under Sections 409 & 411 were registered against the accused persons. 3. After usual investigation, charge-sheet was filed against both the applicants and also against one Mukesh Mishra, who is the brother of the applicant-Rakesh Mishra for the offence under Sections 409 and 411 read with Section 34 of IPC. The accused persons abjured their guilt and prayed for trial. 4. The Court of learned CJM, after appreciation of oral and documentary 3 evidence, convicted the accused-Anand Tiwari for the offence under Section 409 of IPC and sentenced him to undergo S.I. for three years with fine of Rs.500/-, in default of payment of fine amount to undergo additional S.I. for three months and similarly, convicted accused- Mukesh Mishra and Rakesh Mishra for the offence under Section 411 of IPC and sentenced them to undergo R.I. for one year with fine of Rs.300/- each, in default of payment of fine amount to undergo additional S.I. for one month each. The judgment of CJM was challenged by the accused persons in criminal appeal, however, the Appellate Court vide judgment dated 26.09.2012, acquitted the co-accused- Mukesh Mishra of the charge under Section 411 of IPC and convicted and sentenced the accused-Anand Tiwari and Rakesh Mishra as mentioned in opening paragraph of this order. Hence, these revisions. 5. Learned counsel for the applicants would submit that the trial Court as well as Appellate Court have not properly appreciated the overall evidence on record for holding the applicants guilty. They would further submit that in this case, after receiving information from the complainant, ADM, S.K. Behar (PW-8) himself conducted the investigation, but as per Section 94 Cr.P.C, the concerned ADM ought to have authorized any police officer above the rank of constable only by warrant, however, contrary to Section 94 Cr.P.C., he exceeds his jurisdiction, which clearly violates the power vested by the Cr.P.C. They would also submit that complainant- Gulab Sonkar, who gave the information to ADM, PW-8 S.K. Behar, has also not been 4 examined by the prosecution and two of the prosecution witnesses namely Sudhir Shukla (PW-1) and Subhravrat Chaki (PW-2) have also turned hostile and did not support the case of the prosecution. They would also submit that the seized articles were not sealed and signed and did not keep in the safe custody and the same has also not been produced before the trial Court. They would further contend that prosecution has utterly failed in proving the fact that the seized books are meant for free distribution to SC/ST children and not for Sale. They would also contend that the entire proceedings under which the whole shop was sealed has not been proved by the prosecution and thus vitiates the proceedings. On these premises, they urged that the criminal revisions may be allowed and the applicants be acquitted of the charges leveled against them. Reliance has been placed on the decision of Supreme Court in the matter of Manubhai Ratilal Patel Through Ushaben vs State of Gujarat and others1. 6. On the contrary, learned counsel for the State would support the impugned judgment passed by the learned Appellate Court and submit that PW-8 S.K. Behar, ADM, after seizure and search of alleged books, sent a letter (Ex.P-11) to concerned Police Station, Bilaspur for lodging FIR and complied with all the provisions as contained in Section 94 of Cr.P.C. Therefore, the present revisions filed by the applicants be dismissed. 7. Heard learned counsel for the parties and perused the record. 8. Before proceeding further, it would be apt to reproduce Section 94 of Cr.P.C, which reads as under:- 1 (2013) 1 SCC 314 5 94. Search of place suspected to contain stolen property, forged document, etc. (1) If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable article to which this section applies, or that any such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable— a. to enter, with such assistance as may be required, such place, b. to search the same in the manner specified in the warrant, c. to take possession of any property or article therein found which he reasonably suspects to be stolen property or objectionable article to which this section applies, d. to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some place of safely, e. to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable article to which this section applies. (2) The objectionable articles to which this section applies are— a. counterfeit coin; b. pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889), or brought into India in contravention of any notification for the time being in force under section 11 of the Customs Act, 1962 (52 of 1962); c. counterfeit currency note; counterfeit stamps; d. forged documents; e. false seals; f. obscene objects referred to in Section 292 of the Indian Penal Code (45 of 1860); g. instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f) 9. The Supreme Court in the matter of Manubhai Ratilal Patel (supra) has held in para 30 which reads as under:- “30. In Niranjan Singh v. State of Uttar Pradesh2, it has been laid down that investigation is not an inquiry or trial before the court and that is why the legislature did not contemplate any irregularity in investigation as of sufficient importance to vitiate or otherwise 2 AIR 1957 SC 142 : 1957 Cri LJ 294 6 form any infirmity in the inquiry or trial. In S.N. Sharma v. Bipen Kumar Tiwari3, it has been observed that the power of police to investigate is independent of any control by the Magistrate. In State of Bihar v. J.A.C. Saldanha and others4, it has been observed that there is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment and further investigation of an offence is the field exclusively reserved for the executive in the police department.” 10. A bare perusal of above provision in the light of aforesaid decision of Supreme Court, it is quite clear that the power of District Magistrate, Sub-Divisional Magistrate or Magistrate is confined only to conduct the inquiry immediately after receipt of information and thereafter he may, by warrant authorise any police officer above the rank of constable for searching and other proceedings and to look into the matter. However, in the present case, PW-8 S.K. Behar, ADM, after receiving information from the complainant proceeded to conduct preliminary inquiry and in absence of any warrant, he himself investigated the matter on his own and seized the articles and after completing the whole proceedings, he informed the police personnel, which shows that he exceeded his jurisdiction, whereas he ought not to have conducted the whole investigation and ought to have informed the police personnel to investigate the matter as per the provisions contained in Section 94 Cr.P.C. Since the aforesaid offence is a cognizable offence, the police have the right to investigate the matter. Furthermore, from perusal of the record, it appears that whatever the articles seized by PW-8 S.K. Behar, ADM were handed over to the police personnel and apart from that, police personnel did not investigate and inquire into the matter. Besides above, perusal of record would also show that after seizure of 129 books, PW-8 S.K. Behar, ADM, without any seal and signature, had submitted those books in the store of Pustak Nigam and also sealed the 3 4