Satish S/O Mahadeorao Uke vs State Of Mah. Thr. Commissioner Of ...
2021 Latest Caselaw 9040 Bom

 Judgment                                    1                                 cwp482.21.odt




                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                            NAGPUR BENCH, NAGPUR.


                       CRIMINAL WRIT PETITION NO. 482/2021


          Satish S/o Mahadeorao Uke,
          Aged about 44 years, Occ. Legal Practitioner,
          R/o. Parvatinagar Nagpur,
          Nagpur
                                                                       .... PETITIONER

                                       // VERSUS //

 1]       State of Maharashtra,
          Through Commissioner of Police,
          Nagpur

 2]       Deputy Commissioner of Police,
          Zone-I, Nagpur City, Nagpur

 3]       Police Station Officer, P.S. Sonegaon,
          Nagpur
                                                                  .... RESPONDENT(S)

  *******************************************************************
                   Shri S.M. Uke - Petitioner-in-person
                 Shri S.S. Doifode, APP for the respondents
  *******************************************************************

                               CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

JULY 12, 2021

JUDGMENT : (PER:- AMIT B. BORKAR, J.)

1] Heard. RULE. Rule made returnable forthwith.

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 2]               By this writ petition under Article 226 of the Constitution of

India, the petitioner is seeking direction to the respondents to take

cognizance of the complaint filed by the petitioner dated 05/07/2021.

3] The petitioner is working as legal practitioner and had filed a

complaint dated 05/07/2021 before the respondents invoking Section 154 of

the Code of Criminal Procedure against Shri Devendra Fadnavis and his

associates on the ground that he had obtained photo copy of the Criminal

W.P. No. 350/2021 filed by the petitioner in this Court from the Office of the

Public Prosecutor, High Court of Bombay, Bench at Nagpur.

4] The gist of allegations in the complaint of the petitioner are as

under :-

"a) Petitioner had supplied four copies of Criminal W.P.

No. 350/2021 in the Office of Government Pleader, Bombay

High Court, Bench Nagpur for respondents in the said petition.

b) The intervention applicant through his secret agent

got information about the said copies and thereafter

intervention applicant sent his agent to the person giving

information about those copies and illegally sought copies of the

said documents by committing theft or sought scanned copy of

the petition or sought photographs on mobile and said that the

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copies were supplied to the intervention applicant by secret

supporter by committing theft.

                  c)             By   using    the    said   copies     of   petition,     the

                  intervention     applicant    has     filed     Criminal       Application

No. 82/2021 in Criminal W.P. No. 350/2021 seeking permission

to intervene in the said proceedings before this court.

                  d)             The above facts show that the intervention

                  applicant has committed theft.

                  e)             It is therefore necessary to investigate role of the

intervention applicant and his associates as to how they got

copies of the above documents."

5] It is alleged in the petition that after filing of the complaint

dated 05/07/2021, the respondents are not taking any action on the said

complaint and there are no chances that the respondents will act on the same

due to the political influence of Shri Devendra Fadnavis, who is Ex-Chief

Minister of the State of Maharashtra and presently the Leader of Opposition

of the Maharashtra State Legislative Assembly. It is alleged that therefore the

petitioner is constrained to file the present petition.

6] We have heard the petitioner who is appearing in person. He

submitted that from the information in the complaint dated 05/07/2021, it

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discloses cognizable offence under Sections 378 and 379 of the Indian Penal

Code and therefore it is necessary to take cognizance of the complaint filed

by the petitioner. He submitted that the allegations in the complaint also

disclose the offence under the provisions of the Official Secrets Act, 1923 (for

short "the Act of 1923"), and therefore it is necessary to issue directions to

the respondents to take cognizance of his complaint.

7] At this stage, it is necessary to refer Sections 378 and 379 of the

Indian Penal Code as under :-

"378. Theft.--Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.

379. Punishment for theft.--Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

8] To constitute theft, the following are essential ingredients:

(i) Dishonest intention to take property;

(ii) The property must be movable;

(iii) It should be taken out of the possession of another person;

(iv) It should be taken without the consent of that person;

(v) There must be some removal of the property in order to

accomplish the taking of it.

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Dishonest intention is one of the main ingredients of the offence

of theft. The dishonest intention of the taker makes taking or moving of a

thing a theft. The intention to take "dishonestly" is satisfied when the taker

intends to cause wrongful loss to other person which amounts to theft.

Another essential ingredient of the offence of "theft" is that the movable

property should be "moved" out of the possession of any person without his

consent.

9] "Movable property" is defined in Section 22 of the Indian Penal

Code, which reads as under:

"Movable property". --The words "movable property" are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth."

"Dishonestly" has been defined in Section 24 of the Indian Penal

Code, which reads as under:

"Dishonestly". --Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".

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"Wrongful gain" and "Wrongful loss" have been defined in

Section 23 IPC, which read as under:

"Wrongful gain". -- "Wrongful gain" is gain by unlawful means of

property to which the person gaining is not legally entitled.

"Wrongful loss". -- "Wrongful loss" is the loss by unlawful means

of property to which the person losing it is legally entitled.

"Gaining wrongfully: Losing wrongfully.-- A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property."

10] In the fact situation of the present case, it is alleged in the

complaint that the documents are being used in the proceedings before this

Court for the purpose of filing intervention application. The petitioner does

not allege that there was any wrongful gain to the intervention applicant or

wrongful loss to the petitioner or the Office of Government Pleader to fulfill

the ingredients of theft under Section 378 of the Indian Penal Code. The

petitioner only alleges that the copies of the document were unauthorizedly

obtained from the Office of Government Pleader.

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 11]              Merely because the intervention applicant has used the copies of

the documents in the judicial proceedings, it cannot be said that the

intervention applicant has removed the documents with "dishonest"

intention. Copies of documents are produced in support of the case of

intervention applicant to enable the Court to effectively adjudicate the rights

of intervention applicant in a judicial proceedings involving alleged

commission of the offence. The intervention applicant has used documents

allegedly obtained from the Office of Government Pleader to file application

in the judicial proceedings only to vindicate his stand in the writ petition.

Therefore there is no "dishonest intention" on the part of the intervention

applicant causing "wrongful loss" to the petitioner or the Office of

Government Pleader and getting "wrongful gain" for himself.

12] We have considered the allegations in the complaint in the

context of the provisions of the Act of 1923. Section 3 of the Act of 1923

penalizes a person for committing the offence of spying when any person for

any purpose prejudicial to the safety or interest of the State commits the act

stated in Sub-Sections (a), (b) or (c) of Section 3(1) of the Act of 1923. We

have also considered the other provisions of the Act of 1923 namely Sections

4 to 10. We do not find that the allegations in the complaint satisfy the

ingredients of any of the offences under the provisions of the Act of 1923.

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 13]              On consideration of overall facts and circumstances of the

present case, we are of the considered view that the information in the

complaint filed by the petitioner does not disclose any cognizable offence nor

there is necessity of conducting any inquiry to ascertain whether the

cognizable offence is disclosed or not.

14] There is no merit in the petition and the same is dismissed. Rule

is discharged.

15] Pending applications, if any, stand disposed of.

                   (JUDGE)                                   (JUDGE)




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