2022 (9) TMI 1676 - HC - Indian Laws

Section 482 CrPC quashed criminal proceedings for lack of prima facie offence; sacks of rice were lawfully possessed

HC quashed criminal proceedings under Section 482 CrPC, finding no prima facie offence. Recovery of sacks of rice from the petitioner did not establish ... Recovery of theft articles from the possession of petitioner - lawful possession of the sacks of rice on the material date or not - offence u/s 379/411/413/414 of the Indian Penal Code read with Section 7(1) (a) (ii) of the Essential Commodities Act - HELD THAT:- From the definition of offence under Section 379 of the Indian Penal Code (IPC), it is clear that where the accused is in lawful possession of the sacks of rice on the material date it does not amount to theft. A charge of committing theft is generally lodged when the thing said to be stolen is recovered from the possession of the accused. In the present case, no allegation of theft has been lodged by any one and police had merely became suspicious that the truck loaded with rice may have been moved with dishonest intention to sale somewhere else at a higher price. The prosecution must establish mala fide intention on the part of the petitioner whilst the article in question so removed. Accordingly any article moved with the consent of Government authority cannot constitute a cause of action for bringing a charge under Section 379 of the Indian Penal Code. Similarly in order to bring home the guilt against a person under Section 411, prosecution must prove 1) that the stolen property was in possession of the accused 2) that some persons other than the accused was in possession of the property before the accused got possession thereof and 3) that the accused possess the property with the knowledge that the property is stolen and he got possession of the property dishonestly. Here also dishonest intention is the sine qua non of the offence under this section - The question of habitual dealings with stolen property also does not appear in the present context, in view of the fact that prosecution has not produced any such document in support of the habitual dealings with stolen property by the petitioner. Section 7(1)(a)(ii) of the Essential Commodities Act, 1955, also does not have any application in the present context, in the absence of any regulating or prohibiting order of licence or permit of petitioner by the Government. Penalty under section 7(i) (a) (ii) arises only in case of violation of order made in this context. Having considered the facts and circumstances of the case, it appears that the ingredients of the offence is completely absent in the present context either from the contents of the complaint or from the materials collected during investigation, and as such the continuance of present proceeding any further will be an abuse of process of the court as the allegations levelled against the petitioner is not only absurd but also inherently improbable. Accordingly it is a fit case where invoking power under Section 482 of the Code of Criminal Procedure, the proceeding is required to be quashed. Revision allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether the allegations and materials on record disclose the essential ingredients of the offence of theft under Section 379 IPC so as to sustain criminal proceedings. 2. Whether the allegation of possession of stolen property and thus offence under Section 411 IPC (and ancillary provisions Section 413/414 IPC) is made out on the material produced. 3. Whether Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 is attracted in the absence of any regulating/prohibiting order, licence or permit violation. 4. Whether a suo motu police complaint and subsequent charge-sheet, in the factual matrix presented (including production of delivery orders, truck challans and withdrawal of administrative suspension), can be quashed under Section 482 CrPC as an abuse of process for want of prima facie case. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Ingredients of Theft (Section 379 IPC) Legal framework: To constitute theft under Section 379 IPC the prosecution must establish: (1) removal of movable property; (2) removal without consent of the person in possession; and (3) dishonest intention at the time of removal. Precedent Treatment: The judgment does not rely on or discuss judicial precedents; no precedent is followed, distinguished or overruled in the reasoning. Interpretation and reasoning: The Court observed that if the accused was in lawful possession of the sacks of rice on the material date, the act does not constitute theft. The materials produced by the petitioner - delivery order, truck challans, and the administrative acts (show cause, suspension and later withdrawal of suspension) - indicate that the consignment was being transported in the regular course of business pursuant to governmental documentation. The complaint was lodged suo motu by police on suspicion rather than on a complainant asserting ownership of stolen goods. The Court held that mere police suspicion that goods might have been moved with dishonest intention is insufficient; mala fide/dishonest intention must be established by the prosecution. Articles moved with the consent of government authority cannot, on the face of the record, constitute theft. Ratio vs. Obiter: Ratio - absence of allegations/materials proving dishonest intention and absence of lack of lawful possession made the charge under Section 379 unsustainable on the record. Obiter - commentary that theft is generally charged when the stolen item is recovered from the accused's possession (illustrative only). Conclusions: Ingredients of theft are absent on the record; Section 379 is not made out and cannot sustain prosecution in the present case. Issue 2 - Possession of Stolen Property (Section 411 IPC) and Ancillary Sections 413/414 IPC Legal framework: For Section 411 IPC the prosecution must show (1) property was stolen; (2) the accused had possession of the property; (3) some other person had possession previously; and (4) the accused knew the property was stolen and dishonestly obtained/retained it. Sections 413/414 relate to receiving/retaining/managing stolen property and concealing/disposing thereof. Precedent Treatment: No precedents are cited or treated. Interpretation and reasoning: The Court noted that dishonest knowledge is the sine qua non. The record lacked any allegation or material establishing that the property was stolen, that the petitioner knowingly possessed stolen property, or that there was habitual dealing in stolen goods. Production of lawful documentation and the absence of ownership complaints by a complainant undermined the prosecution's ability to prove the requisite mens rea. The police action was founded on suspicion without supporting proof of prior lawful possession by another or of the petitioner's guilty knowledge. Ratio vs. Obiter: Ratio - absence of elements of Section 411 (and by parity Sections 413/414) on the materials collected; accordingly these charges cannot stand. Obiter - remarks on habitual dealing not being shown (illustrative of evidentiary insufficiency). Conclusions: Charges under Sections 411, 413 and 414 IPC are not supported by the record; essential ingredients including dishonest knowledge are missing. Issue 3 - Applicability of Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 Legal framework: Penalty under Section 7(1)(a)(ii) attaches to contraventions of orders made under the Act, for example regulating or prohibiting storage/transport/disposal; violation presupposes existence of such an order/licence/permit requirement and its breach. Precedent Treatment: No precedents considered. Interpretation and reasoning: The Court found no material showing existence of any regulating/prohibiting order applicable to the petitioner or of any breach of licence/permit conditions. Absent such a regulatory instrument and proof of contravention, the statutory provision could not be invoked against the petitioner. Ratio vs. Obiter: Ratio - Section 7(1)(a)(ii) does not apply where no regulatory order or licence requirement is shown to have been contravened. Obiter - none beyond application to facts. Conclusions: The Essential Commodities Act provision is inapplicable on the present material and cannot sustain the charge. Issue 4 - Power to Quash under Section 482 CrPC; Abuse of Process Legal framework: High Court's inherent powers under Section 482 CrPC permit quashing of criminal proceedings where continuance would amount to abuse of process or where no prima facie case is disclosed. Precedent Treatment: No precedents invoked. Interpretation and reasoning: The Court examined the complaint, charge-sheet and documents produced by the petitioner (truck challans, delivery orders, administrative records including withdrawal of suspension). On the totality of materials the Court concluded that the essential ingredients of the charged offences were absent and the prosecution rested on suspicion rather than admissible material proving the offences. Continuation of proceedings in these circumstances would be an abuse of the court process and inherently improbable on the facts. The fact that investigation had culminated in a charge-sheet and the matter was at trial stage did not preclude exercise of quashing power where no cause of action was disclosed. Ratio vs. Obiter: Ratio - where allegations and collected materials lack ingredients of the offences and proceed only on suspicion, continuation of proceedings may be quashed under Section 482 CrPC as an abuse of process. Obiter - procedural observations regarding administrative proceedings (show cause and withdrawal) serving evidentiary value (illustrative). Conclusions: The exercise of inherent jurisdiction to quash the entire criminal proceeding was justified; the petition succeeds and the proceedings are quashed. No order as to costs.