Dewanti Choudhary, aged about 51 years, wife of Manoj Kumar Choudhary resident of Flat v. 1. The State of Jharkhand 2. Rajesh Agarwal, Son of Sunil Agarwal, Posted as
Case Details
Cr. M.P. No.2596 of 2021 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2596 of 2021 ------ Dewanti Choudhary, aged about 51 years, wife of Manoj Kumar Choudhary resident of Flat No.301, 1No Hriday Krishna Banerjee, P.O. and P.S. Betra, District Howrah (West Bengal) … Petitioner Versus 1. The State of Jharkhand 2. Rajesh Agarwal, Son of Sunil Agarwal, Posted as Assistan Manager, Jasidih Industrial Area, Indian Oil Corporation Ltd., P.O. & P.S. Jasidih, District- Deoghar, Resident at Anand Bhawan, Infront of Magrar Branch, Ranchi Road-Ramgarh, P.O. & P.S.- Ramgarh, Opposite Parties District- Ramgarh. … For the Petitioner For the State For the O.P. No.2 ------
Legal Reasoning
: Mr. B. M. Tripathi, Sr. Advocate Mr. Naveen Kr. Jaiswal, Advocate : Mr. Manoj Kumar, GA III Mr. Aditya Raman, AC to GA III : Mr. Amit Kr. Sinha, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal prosecution and proceeding (including the First Information Report) in connection with Madhupur P.S. Case No.109 of 2021 registered for the offences punishable under Sections 15 (2), 15 (4) of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962, Sections 3/4 of the Prevention of Damage to Public Property Act, 1984 and under Sections 3/4 of the Explosives Substance Act, 1908 and under Section 379/411 of the Indian Penal Code and the said case is 1 Cr. M.P. No.2596 of 2021 now pending in the court of learned Sub-Divisional Judicial Magistrate, Madhupur at Deoghar. 3. The allegation against the petitioner is that the petitioner along with co- accused persons knowing that she is likely to cause damage of pipelines laid under Section 7 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962, damaged the pipeline being used for transportation of petroleum products and gas with the knowledge that such act is imminently dangerous and that may in all probability cause death of any person. The role of the petitioner is specifically alleged that she being the registered owner of the tanker, was facilitating removal of petroleum products from the pipelines laid under Section 7 of the said Act by using her tanker. 4. Learned senior counsel for the petitioner submits that the investigation of the case is going on and Final Form has not yet been submitted. It is next submitted that though it has been mentioned in paragraph-6 of the instant Cr.M.P. that the petitioner is not named in the F.I.R. but her name has come up during the investigation by the police but in fact the same is an incorrect statement and in fact, the petitioner is named in the F.I.R. as the owner of the said tanker which was involved in the transportation of petroleum products after damaging the pipelines laid under Section 7 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962. It is next submitted that the petitioner has entered into a rent agreement in respect of the said vehicle on 01.08.2021 prior to the date of the alleged occurrence with one Aftab Alam and hence, the petitioner was not in actual control of the said vehicle at the time of the alleged occurrence. It is further submitted that the police has already arrested the husband of the petitioner. It is next submitted that the husband of the petitioner namely Manoj Kumar Choudhary used to 2 Cr. M.P. No.2596 of 2021 look after the entire work of the tanker on behalf of the petitioner. It is next submitted that the petitioner suffered from infection of COVID-19 and also underwent treatment for post COVID symptoms. It is also submitted that the allegations against the petitioner are all false. It is then submitted that the petitioner is merely a name lender. 5. Learned senior counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Pankaj Jain vs. Union of India & Another reported in (2018) 5 SCC 743 paragraph-30 of which reads as under:- “30. We thus conclude that the word “may” used in Section 88 confers a discretion on the Court whether to accept a bond from an accused from a person appearing in the court or not. The both Special Judge, CBI as well as the High Court has given cogent reasons for not exercising the power under Section 88 CrPC. We do not find any infirmity in the view taken by the Special Judge, CBI as well as the High Court in coming to the conclusion that the accused was not entitled to be released on acceptance of bond under Section 88 CrPC. We thus do not find any error in the impugned judgment of the High Court.” and submits that this is a fit case where the learned trial court may exercise the discretion conferred upon it under Section 88 of the Code of Criminal Procedure to accept the bond from the petitioner, on her appearing in the court. 6. Hence, it is submitted that the entire criminal prosecution and proceeding (including the First Information Report) in connection with Madhupur P.S. Case No.109 of 2021 which is now pending in the court of learned Sub-Divisional Judicial Magistrate, Madhupur at Deoghar, be quashed and set aside. 7. Learned counsel appearing for the State and the learned counsel for the opposite party No.2 vehemently oppose the prayer for quashing the entire criminal prosecution and proceeding, including the First Information Report, in 3 Cr. M.P. No.2596 of 2021 connection with Madhupur P.S. Case No.109 of 2021 which is now pending in the court of learned Sub-Divisional Judicial Magistrate, Madhupur at Deoghar. Learned counsel for the opposite party No.2 relies upon the judgment of the Hon’ble Patna High Court in the case of Dr. Anand Deo Singh vs. The State of Bihar & Others reported in 2000 SCC OnLine Pat 311 paragraph-18 of which reads as under:- “18. In my considered view, section 88 of the Code is an enabling provision, which vests a discretion in the Magistrate to exercise power under said section asking the person to execute a bond for appearance only in bailable cases or in trivial cases and it cannot be resorted to in a case of serious offences. Section 436 of the Code itself provides that bond may be asked for only in cases of bailable offences.” (Emphasis supplied) and submits that a provision under Section 88 of the Code is an enabling provision which vests a discretion in the Magistrate to exercise power under said section asking the person to execute a bond for appearance only in bailable cases or in trivial cases and it cannot be resorted to in a case of serious offences. 8. Learned counsel for the opposite party No.2 next submits that there is direct and specific allegation against the petitioner that she being the owner of the tanker in question, was involved in damaging the pipeline laid under Section 7 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 and extracting petroleum products which constitute offences punishable under Sections 15 (2) and 15 (4) of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962. It is next submitted that Section 15 (2) of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 provides for sentence punishable with Rigorous Imprisonment for a term which may extend to ten years and shall also be liable to fine whereas Section 15 (4) of the said act provides for 4 Cr. M.P. No.2596 of 2021 punishment of Rigorous Imprisonment which shall not be less than ten years but may extend to imprisonment of life or death. 9. It is next submitted by the learned counsel for the opposite party No.2 that the contention of the petitioner that she was a name lender or that she was not in control of the tanker in question having been given the possession of the same on one Aftab Alam or for that matter is her contradictory plea that her husband was looking after the said tanker; is a defence which can be put forth before the Investigating Officer of the case or during the trial of the case; but the disputed defence cannot be a ground for quashing the entire criminal proceeding. 10. Learned counsel for the opposite party No.2 next submits that Section 16 (A) of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 envisages that where any petroleum product together with any tool, vehicle or any item used in committing any such offence under Section 15 (2) or 15 (4) of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 are seized under that Act in the reasonable belief that such petroleum product has been stolen from the pipeline laid under Section 7 of the said act, the burden of proving that they are not stolen property shall be, in case where such seizure is made from the possession of any person,- (i) on the person from whose possession the property was seized, and (ii) on the person who claims to be the owner thereof, if any person other than the person from whose possession the stolen property was seized, and the undisputed fact remains that the petitioner is the owner of the said tanker in question which was found with petroleum products which was stolen after causing damage to the pipelines laid under Section 7 of the said 5 Cr. M.P. No.2596 of 2021 Act. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 11. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that there is direct allegation against the petitioner of being the owner of the tanker in question which was found loaded with petroleum products extracted from the pipelines laid under Section 7 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 and thus, having committed the offence punishable under Sections 15 (2) and 15 (4) of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962. The contention of the petitioner that she is a woman or that she is ill; are certainly not the grounds to quash the F.I.R. or for that matter the entire criminal proceedings be quashed. The contention of the petitioner that she is a name lender or that her husband or for that matter Aftab Alam was in control of the tanker in question, are the defences which cannot be considered for the purpose of quashing the entire criminal proceeding or the F.I.R. lodged in the case, in exercise of the power under Section 482 of the Code of Criminal Procedure. 12. It is a settled principle of law that the High Court in exercise of its inherent power under Section 482 of Code of Criminal Procedure should not stifle a legitimate prosecution; as has been held by the Hon’ble Supreme Court of India in the case of Monica Kumar (Dr.) & Another vs. State of Uttar Pradesh & Others reported in (2008) 8 SCC 781. 13. It is also a settled principle of law that mini trial cannot be held by the court in exercise of the power vested upon it under Section 482 of the Code of 6 Cr. M.P. No.2596 of 2021 Criminal Procedure to verify the credibility of the defence put forth by the accused in a case. 14. Under such circumstances, as there is direct and specific allegation against the petitioner of having committed serious offences like the one punishable under Sections 15 (2) and 15 (4) of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act and other offences punishable in law and undisputedly, the investigation of the said case is going on at present which was hampered because of a no coercive order passed in this case by the coordinate bench of this Court at some point of time; which , of course no more exists; this Court is of the considered view that this is not a fit case where the entire criminal prosecution and proceeding (including the First Information Report) in connection with Madhupur P.S. Case No.109 of 2021 which is now pending in the court of learned Sub-Divisional Judicial Magistrate, Madhupur at Deoghar; which no doubt discloses a cognizable offence, be quashed at this stage. 15. Accordingly, the prayer to quash and set aside the entire criminal prosecution and proceeding; including the First Information Report in connection with Madhupur P.S. Case No.109 of 2021 which is now pending in the court of learned Sub-Divisional Judicial Magistrate, Madhupur at Deoghar, is rejected. 16.
Decision
In the result, this Cr.M.P., being without any merit is dismissed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 06th of March, 2024 AFR/ Animesh 7