IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.228 of 2017
Arising Out of PS. Case No.-55 Year-2015 Thana- BHAGALPUR GRP CASE District-
Bhagalpur
Bhagwan Yadav Son of Late Dasrath Yadav Resident of Mohalla- Dixson
Road, Mundichak, P.S. Tilka Manjhi, District-Bhagalpur
… … Petitioner/s
Versus
1. The State of Bihar
2. Shashi Ranjan Singh Son of Date Narendra Prasad Singh Resident of Village-
Lalapur, Bhadar, P.S.Kahalgaon District-Bhagalpur
… … Opposite Party/s
Appearance :
For the Petitioner/s : Mr.Dr. Manoj Kumar
For the Opposite Party/s : Mr.Sri Brajendra Nath Pandey
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL ORDER
4 10-01-2019 Heard learned counsel for the petitioner as well as learned
Additional Public Prosecutor.
It has been submitted at the end of the petitioner that the
order impugned would not survive because of the fact that (a) FIR
was registered against unknown for stealing the motorcycle by an
unknown thieves, (b) case was registered under Section 379 IPC, (c)
motorcycle has not been recovered from the possession of the
petitioner, (d) there happens to be no material available in the case
diary wherefrom it could be gathered that petitioner had stolen the
motorcycle contrary to it, the I.O. after concluding investigation
submitted charge sheet under Section 406 of the IPC and, the learned
lower court in mechanical manner took cognizance punishable under
submitted that there happens to be vast difference in between an
offence punishable under Section 379 IPC as well as 406 IPC,
requiring two different ingredients that means to say, in a case of
theft the property is to be removed without permission of the owner
while for section 406 IPC there should be an entrustment which has
been mis-utilized at the end of the accused. Incidence of theft cannot
be theme of entrustment nor vice-versa so, no offence is made out.
The learned Additional Public Prosecutor opposed the
same.
The Hon’ble Apex Court in Ghanshyam Sharma vs.
Surendra Kumar Sharma Ors. reported in 2015 Cr.L.J. 421 has
observed that because of the fact that the offence whereunder case
has been registered, the materials collected during course of
investigation did not support the commission of any kind of offence,
would not be a ground to quash the prosecution rather, the learned
lower court will see at the stage of framing of charge and, if no
charge is to be framed on account of deficiency of the materials,
irrespective of the fact that order of cognizance will exists, discharge
the accused.
In terms thereof, this petition is disposed of.
(Aditya Kumar Trivedi, J.)
Prakash Narayan
U T
