Opp. Party v. CORAM
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 612 of 2018 Bipin Mishra ... …Petitioner The State of Jharkhand ..... …Opp. Party Versus CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
Legal Reasoning
For the Petitioner:Mr. R.S. Mazumdar, Sr. Advocate For the State :Mr. Fahad Allam, A.P.P. ------ 07/ Dated:-08.01.2024 Heard Mr. R.S. Mazumdar, learned senior counsel for the petitioner and Mr. Fahad Allam, learned counsel for the State. 2. This petition has been filed for quashing the entire criminal proceeding in connection with Patratu P.S. Case No. 197 of 2017, corresponding to G.R. Case No. 837 of 2017, pending in the Court of learned Judicial Magistrate at Ramgarh. 3. Pursuant to F.I.R., chargesheet has been submitted and cognizance has been taken by order dated 08.01.2021 which has been challenged by way of I.A. No. 11914 of 2022. 4. Mr. Mazumdar, learned senior counsel for the petitioner submits that pursuant to cognizance order it was necessitated to file this interlocutory application. He submits that this I.A, may be allowed. 5. Learned counsel for the State opposes the prayer on the ground that belatedly the said I.A, has been filed. 6. It is an admitted fact that earlier only F.I.R. was challenged and subsequently chargesheet has been submitted on 20.07.2020 and cognizance has been taken on 08.01.2021 and the said I.A. has been filed on 21.12.2022, to avoid the multiplicity of litigation, the prayer made in I.A. is allowed.
Decision
7. I.A. No. 11914 of 2022 stands allowed and disposed of. 8. As the I.A. has been allowed, the order taking cognizance dated 08.01.2021 is also under challenge. 2 9. The F.I.R. has been lodged alleging therein on 02.08.2017 at about 8 P.M, the informant received a secret information from Superintendent of Police (M), Ramgarh about 7 trucks illegally carrying coal towards Ranchi. That upon receiving such information the informant along with the police team, proceeded and stopped the trucks at Nalkari bridge near Patratu the trucks and the staffs were consequently apprehended but they failed to produce proper documents with respect to the loaded coal thereon. According to the Form D, the destination was within Ramgarh district. The informant however found the description in Form D transport challan. It is alleged that it appeared from the documents that M/s Pranav Powertech is the consignee and M/s Gayatri Enterprises is the Consignor. It is further alleged that under the orders of the consignor being the Director of the Pranav Powertech Pvt. Limited the coal was being transported and accordingly the trucks and the coal were brought to police station under the orders of the higher authorities the documents produced were sent for verification. In course of verification that it has been suspected that the petitioner, the Director of Pranav Powertech Pvt. Ltd in connivance with the owners and drivers of trucks diverted the route of transportation and hence this present FIR. 10. Mr. Mazumdar, learned senior counsel for the petitioner submits that Jindal Steel & Power Ltd. Balkudra issued sales orders dated 29.07.2017 in favour of Pranav Power Tech Pvt. Limited vide Annexure-2. He submits that tax invoices with respect to the aforesaid coal in question on each trucks were issued on 02.08.2017 by Jindal Power & Steel Ltd. contained in Annexure-3. He submits 3 that M/s Gayatri Enterprises issued a consignment with respect to each of the trucks showing quantity of coal which were issued on 02.08.2017. He further submits that Form-D transport challan are there which suggests that the coal in question has been sold by Jindal Steel & Power Ltd and the petitioner is bonafide owner of the coal in question contained in Annexure-5. He further submits that only allegation is there that route was not being followed by the driver. He submits that only diverting the route cannot be a ground of registration of F.I.R. 11. Mr. Fahad Allam, learned counsel for the State submits that the case is made out for diverting the route of the vehicle and in view of that case may not be quashed. 12. It is an admitted position that coal in question was purchased. The relevant documents are there as referred in the argument of the learned senior counsel for the petitioner. The Division Bench of this Court in the case of Abhas Kumar Acksaria & Others Vs. The State of Bihar & Others (Cr. W.J.C. No. 33 of 1991 (R) has held that deviation by the truck carrying coal to a place other than its destination cannot be a criminal offence either under the Indian Penal Code or the Essential Commodities Act. In the said order a note of caution was also given to the concerned police officials not to harass the bona fide transporters of coal in such manner and that issue was further followed in Cr.M.P. No. 1628 of 2013 and considering the same the entire criminal proceeding was quashed by this Court. 13. Further reference may be made to case of Malikat Singh & Anr. Versus The State of Punjab (1969) 1 SCC 157 wherein para 6 and 7 the Hon’ble Supreme court has held as 4 under:- “6. The question to be considered in this appeal is whether upon the facts found by the lower courts any offence has been committed by the appellants. It is not disputed that the truck carrying the paddy was stopped at Samalkha Barrier which is 32 miles from Delhi. It is also not disputed that the Delhi-Punjab boundary was, at the relevant point of time, at about the 18th mile from Delhi. It is therefore evident that there has been no export of paddy outside the State of Punjab in this case. The truck with the loaded paddy was seized at Samalkha well inside the Punjab boundary. It follows therefore that there was no export of paddy within the meaning of Para 2(a) of the Punjab Paddy (Export Control) Order, 1959. It was however argued on behalf of the respondent that there was an attempt on the part of the appellants to transport paddy to Delhi, 'and so there was an attempt to commit the offence of export. In our opinion, there is no substance in this argument. On the facts found, there was no attempt on the part of the appellants to commit the offence of export. It was merely a preparation on the part of the appellants and as a matter of law a preparation for committing an offence is different from attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offence. On the other hand, an attempt to commit the offence is a direct movement towards the commission after preparations are made. In order that a person may be convicted of an attempt to commit 'a crime, he must be shown first to have had an intention to commit the offence, and secondly to have done an act which constitutes the actus reus of a criminal attempt. The sufficiency of the actus reus is a question of law which had led to difficulty because of the necessity of distinguishing between acts which are merely preparatory to the commission of a crime, and those which are sufficiently proximate to it to amount to an attempt to commit it. If a man buys a box of matches, he cannot be convicted of attempted ,arson, however clearly it may be proved that he intended to set fire to a haystack at the time of the purchase. Nor can he be convicted of this offence if he approaches the stack with the matches in his pocket, but, if he bends down near the stack and lights a match which he extinguishes on perceiving that he is being watched, he may be guilty of an attempt to burn it. Sir James Stephen, in his Digest of Criminal Law, art. 50, defines an attempt as follows: "'an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted. The point at which such a series of acts begins cannot be defined, but depends upon the circumstances of each particular case." 7. The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. In the present case it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Samalkha Barrier and the Delhi- Punjab boundary and not have proceeded further in their journey. Section 8 of the Essential Commodities Act states that "any person who attempts to contravene, or abets a contravention of, any order made under section 3 shall be deemed to have contravened that order". But there is no provision in the Act which makes a preparation to commit an offence punishable. It follows therefore that the appellants should not have been convicted under s. 7 of the Essential Commodities Act.” 5 14. In view of above ratio of the judgments, it appears that only for diversion of the route the case has been lodged. Further there is no allegation in the F.I.R. that any deviation was made to commit any offence in view of that crime is effected. Moreover, there has been absolutely no allegation either of committing offence of forgery, misappropriation or cheating and there is no allegation that coal was being transported in absence of any valid document and in view of that to continue the proceeding will amount abuse of process of law. 15. Accordingly, the entire criminal proceeding including order taking cognizance dated 08.01.2021 passed in connection with Patratu P.S. Case No. 197 of 2017, corresponding to G.R. Case No. 837 of 2017 , pending in the Court of learned Judicial Magistrate at Ramgarh, are quashed. 16. This petition stands allowed and disposed of. Pending I.A, if any, stands disposed of. Satyarthi/- (Sanjay Kumar Dwivedi, J.)