JHARKHAND HIGH COURT ISSUES ORDER ON YOGENDRA TIWARI V/S THE STATE OF JHARKHAND

RANCHI, India, Nov. 22 -- Jharkhand High Court issued the following order on Oct. 22:

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 the prayer to quash the entire criminal proceeding including the order dated 25.06.2018 passed in Ramna P.S. Case No. 52 of 2017 corresponding to G.R. Case No.962 of 2017 by the learned SubDivisional Judicial Magistrate, Garhwa whereby and where under consequent upon submission of the charge sheet, the learned Sub-Divisional Judicial Magistrate, Garhwa has taken cognizance of the offences punishable under Sections 379, 411/34 of the Indian Penal Code and Section 54 of J.M.M.C. Act, 2004.

3. The allegation against the petitioner is that the petitioner in furtherance of common intention with the co-accused persons, were involved in commission of theft of 303.8 CFT of sand as though the transport challan was only for 400 CFT of sand, 703.8 CFT of sand, while being stealthily taken away, was apprehended by police. The petitioner in connivance with the co-accused persons was transporting 703.8 CFT of sand and was dishonestly receiving the stolen property by storing the sand excavated by him by abusing his license with a view to sell the same secretly.

4. Learned counsel for the petitioner submits that the allegation against the petitioner is false. It is next submitted that the petitioner is not named in the FIR. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed.

5. Learned Spl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioner made in this Criminal Miscellaneous Petition and submits that the materials available in the record are sufficient to constitute all the offences in respect of which the cognizance has been taken by the learned Sub-Divisional Judicial Magistrate, Garhwa and there is no illegality in the same. It is next submitted that the contention of the petitioner that the allegation against the petitioner is false is the defence of the petitioner, which the petitioner can take at the time of trial of the case and the same is not a ground to quash the entire criminal proceeding. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed.

6. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, this Court finds that there is direct and specific allegation against the petitioner of being in furtherance of common intention with the co-accused persons committed theft of sand and also dishonestly receiving stolen sand which is sufficient to constitute the offence punishable under Section 379, 411/34 of the Indian Penal Code. The sole ground of the petitioner for passing the entire criminal proceeding is that the allegation against him are false. As rightly submitted by the learned Special Public Prosecutor, the same is at best a defence of the petitioner, which can be taken at the time of full dress trial of the case. It is a settled principle of law that the defence of the accused person of a case cannot be considered by the High Court in the exercise of the power under section 482 of the Code of Criminal Procedure. Hence, this Court is of the considered view that this is not a fit case where the prayer of the petitioner to quash the entire criminal proceeding including the order dated 25.06.2018 passed in Ramna P.S. Case No. 52 of 2017 corresponding to G.R. Case No.962 of 2017 by the learned SubDivisional Judicial Magistrate, Garhwa be allowed in exercise of the power under Section 482 of the Code of Criminal Procedure.

7. Accordingly, this Criminal Miscellaneous Petition, being without any merit, is dismissed.

Disclaimer: Curated by HT Syndication.