Chattisgarh High Court
Rakesh Mishra vs State Of Chhattisgarh on 5 February, 2025
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRR No. 638 of 2012
Order Reserved on 21.01.2025
Order Delivered on 05.02.2025
• Rakesh Mishra, S/o Mishri Lal Mishra, aged about 40 Years, R/o
Digitally signed Mohalla Masanganj, Police Station Civil Line, Bilaspur C.G.
by AKHILESH
BEOHAR
Date:
2025.02.05
--- Applicant
15:31:21 +0530
versus
• State of Chhattisgarh, Through District Magistrate, Bilaspur C.G.
--- Non-applicant
CRR No. 652 of 2012
• Anand Tiwari, S/o Bhulau Prasad, aged about 42 Years, R/o Ashok
Nagar, Sarkanda, Bilaspur, Distt. Bilaspur C.G.
---Applicant
Versus
• State of Chhattisgarh, Through the District Magistrate, Bilaspur C.G.
--- Non-applicant
For Applicants : Mr. Vinay Dubey, Mr. Shashi Bhushan Tiwari
& Mr. Siddhant Tiwari, Advocates.
For State : Ms. Smita Jha, Panel Lawyer.
Hon'ble Shri Justice Radhakishan Agrawal
CAV Order
1.
Both these criminal revisions filed under Section 397/401 Cr.P.C. are
directed against the judgment of conviction and order of sentence
dated 26.09.2012 passed by the Second Additional Judge to the Court
of First Additional Sessions Judge, Bilaspur, C.G. in Criminal Appeals
No.07/2008 & 04/2008 respectively, whereby the applicants were
convicted and sentenced as under:-
Conviction of applicant-Anand Sentence
Under Section 409 of Indian Penal Rigorous Imprisonment for
Code (for short 'IPC') one year and fine of Rs.500/-
Conviction of applicant-Rakesh Sentence
Under Section 411 of IPC Rigorous Imprisonment for six
months and fine of Rs.300/-
2. Case of the prosecution, in brief, is that on 08.07.1996, complainant-
Gulab Sonkar (not examined) made a complaint before ADM, Bilaspur
to the effect that he purchased some books from Mishra Pustakalaya,
Gole Bazar, Bilaspur wherein the words 'free distribution to SC/ST
children - Not for Sale' were mentioned which were erased by stamp
pad. Upon such complaint, the said ADM, S.K. Behar (PW-8)
searched alleged shop of the applicant-Rakesh Mishra and total 129
books were allegedly seized from his shop. Subsequently, statement
of applicant-Rakesh Mishra was recorded by ADM, S.K. Behar (PW-8)
where applicant-Rakesh Mishra disclosed that the books were
purchased by him from one 'Tiwari Babu'. During investigation, some
relevant papers were seized by ADM, S.K. Behar (PW-8) which were
handed over to the police later on. After due investigation, ADM, S.K.
Behar (PW-8) lodged a written complaint vide Ex.P-11 in the police
station Kotwali, Bilaspur, C.G., upon which, offence under Sections
409 & 411 were registered against the accused persons.
3. After usual investigation, charge-sheet was filed against both the
applicants and also against one Mukesh Mishra, who is the brother of
the applicant-Rakesh Mishra for the offence under Sections 409 and
411 read with Section 34 of IPC. The accused persons abjured their
guilt and prayed for trial.
4. The Court of learned CJM, after appreciation of oral and documentary
evidence, convicted the accused-Anand Tiwari for the offence under
Section 409 of IPC and sentenced him to undergo S.I. for three years
with fine of Rs.500/-, in default of payment of fine amount to undergo
additional S.I. for three months and similarly, convicted accused-
Mukesh Mishra and Rakesh Mishra for the offence under Section 411
of IPC and sentenced them to undergo R.I. for one year with fine of
Rs.300/- each, in default of payment of fine amount to undergo
additional S.I. for one month each. The judgment of CJM was
challenged by the accused persons in criminal appeal, however, the
Appellate Court vide judgment dated 26.09.2012, acquitted the
co-accused- Mukesh Mishra of the charge under Section 411 of IPC
and convicted and sentenced the accused-Anand Tiwari and Rakesh
Mishra as mentioned in opening paragraph of this order. Hence, these
revisions.
5. Learned counsel for the applicants would submit that the trial Court as
well as Appellate Court have not properly appreciated the overall
evidence on record for holding the applicants guilty. They would
further submit that in this case, after receiving information from the
complainant, ADM, S.K. Behar (PW-8) himself conducted the
investigation, but as per Section 94 Cr.P.C, the concerned ADM ought
to have authorized any police officer above the rank of constable only
by warrant, however, contrary to Section 94 Cr.P.C., he exceeds his
jurisdiction, which clearly violates the power vested by the Cr.P.C.
They would also submit that complainant- Gulab Sonkar, who gave
the information to ADM, PW-8 S.K. Behar, has also not been
examined by the prosecution and two of the prosecution witnesses
namely Sudhir Shukla (PW-1) and Subhravrat Chaki (PW-2) have also
turned hostile and did not support the case of the prosecution. They
would also submit that the seized articles were not sealed and signed
and did not keep in the safe custody and the same has also not been
produced before the trial Court. They would further contend that
prosecution has utterly failed in proving the fact that the seized books
are meant for free distribution to SC/ST children and not for Sale.
They would also contend that the entire proceedings under which the
whole shop was sealed has not been proved by the prosecution and
thus vitiates the proceedings. On these premises, they urged that the
criminal revisions may be allowed and the applicants be acquitted of
the charges leveled against them. Reliance has been placed on the
decision of Supreme Court in the matter of Manubhai Ratilal Patel
Through Ushaben vs State of Gujarat and others1.
6. On the contrary, learned counsel for the State would support the
impugned judgment passed by the learned Appellate Court and submit
that PW-8 S.K. Behar, ADM, after seizure and search of alleged
books, sent a letter (Ex.P-11) to concerned Police Station, Bilaspur for
lodging FIR and complied with all the provisions as contained in
Section 94 of Cr.P.C. Therefore, the present revisions filed by the
applicants be dismissed.
7. Heard learned counsel for the parties and perused the record.
8. Before proceeding further, it would be apt to reproduce Section 94 of
Cr.P.C, which reads as under:-
1 (2013) 1 SCC 314
94. Search of place suspected to contain stolen property, forged
document, etc.
(1) If a District Magistrate, Sub-divisional Magistrate or Magistrate of the
first class, upon information and after such inquiry as he thinks
necessary, has reason to believe that any place is used for the deposit
or sale of stolen property, or for the deposit, sale or production of any
objectionable article to which this section applies, or that any such
objectionable article is deposited in any place, he may by warrant
authorise any police officer above the rank of a constable--
a. to enter, with such assistance as may be required, such
place,
b. to search the same in the manner specified in the warrant,
c. to take possession of any property or article therein found
which he reasonably suspects to be stolen property or
objectionable article to which this section applies,
d. to convey such property or article before a Magistrate, or to
guard the same on the spot until the offender is taken before a
Magistrate, or otherwise to dispose of it in some place of safely,
e. to take into custody and carry before a Magistrate every
person found in such place who appears to have been privy to
the deposit, sale or production of any such property or article
knowing or having reasonable cause to suspect it to be stolen
property or, as the case may be, objectionable article to which
this section applies.
(2) The objectionable articles to which this section applies are--
a. counterfeit coin;
b. pieces of metal made in contravention of the Metal Tokens Act,
1889 (1 of 1889), or brought into India in contravention of any
notification for the time being in force under section 11 of the
Customs Act, 1962 (52 of 1962);
c. counterfeit currency note; counterfeit stamps;
d. forged documents;
e. false seals;
f. obscene objects referred to in Section 292 of the Indian Penal
Code (45 of 1860);
g. instruments or materials used for the production of any of the
articles mentioned in clauses (a) to (f)
9. The Supreme Court in the matter of Manubhai Ratilal Patel (supra)
has held in para 30 which reads as under:-
"30. In Niranjan Singh v. State of Uttar Pradesh 2, it has been laid
down that investigation is not an inquiry or trial before the court
and that is why the legislature did not contemplate any irregularity
in investigation as of sufficient importance to vitiate or otherwise
2 AIR 1957 SC 142 : 1957 Cri LJ 294
form any infirmity in the inquiry or trial. In S.N. Sharma v. Bipen
Kumar Tiwari3, it has been observed that the power of police to
investigate is independent of any control by the Magistrate. In
State of Bihar v. J.A.C. Saldanha and others4, it has been
observed that there is a clear cut and well demarcated sphere of
activity in the field of crime detection and crime punishment and
further investigation of an offence is the field exclusively reserved
for the executive in the police department."
10. A bare perusal of above provision in the light of aforesaid decision of
Supreme Court, it is quite clear that the power of District Magistrate,
Sub-Divisional Magistrate or Magistrate is confined only to conduct the
inquiry immediately after receipt of information and thereafter he may,
by warrant authorise any police officer above the rank of constable for
searching and other proceedings and to look into the matter. However,
in the present case, PW-8 S.K. Behar, ADM, after receiving information
from the complainant proceeded to conduct preliminary inquiry and in
absence of any warrant, he himself investigated the matter on his own
and seized the articles and after completing the whole proceedings, he
informed the police personnel, which shows that he exceeded his
jurisdiction, whereas he ought not to have conducted the whole
investigation and ought to have informed the police personnel to
investigate the matter as per the provisions contained in Section 94
Cr.P.C. Since the aforesaid offence is a cognizable offence, the police
have the right to investigate the matter. Furthermore, from perusal of
the record, it appears that whatever the articles seized by PW-8 S.K.
Behar, ADM were handed over to the police personnel and apart from
that, police personnel did not investigate and inquire into the matter.
Besides above, perusal of record would also show that after seizure of
129 books, PW-8 S.K. Behar, ADM, without any seal and signature, had
submitted those books in the store of Pustak Nigam and also sealed the
3 (1970) 1 SCC 653 : 1970 SCC (Cri) 258
4 (1980) 1 SCC 554 : 1980 SCC (Cri) 272
entire shop, but the said seized books were never produced before the
Court nor even before the police for due verification and specimen of
seal has also not been mentioned in the seizure memo (Ex.P-12),
which shows that the seized books were not kept in safe custody and it
is also not proved by the prosecution that under which provision PW-8
S.K. Behar, ADM, proceeded to seal the entire shop. This apart,
complainant- Gulab Sonkar, who gave the information to PW-8 S.K.
Behar, ADM, has also not been examined by the prosecution for the
reasons best known to it and that PW-1 Sudhir Shukla & PW-2
Subhravrat Chaki have turned hostile and not supported the
prosecution case. Besides this, panchnama witnesses PW-12 Ram
Kumar Kesharwani and PW-13 S.R. Sori have also not supported the
prosecution case.
Moreover, PW-9 D.K. Kshirsgar, who was working as Block
Education Officer, Lormi at the relevant time, has stated that he was
in-charge of book distribution in the school and he used to look after it.
He admitted that applicant-Anand Tiwari used to work as per his
instructions. During his tenure, he never found any shortage of books
or any other thing and he would definitely have complained at that
time, if anything found missing and that PW-8 S.K. Behar, ADM has
also admitted that he did not receive any document from Block
Education Officer, Lormi that applicant- Anand Tiwari was the
in-charge of the books store at the relevant time. Furthermore, PW-7
Shiv Narayan Tiwari, Account Officer, Education Department, Bilaspur,
has stated that he along with junior examiner had prepared the
financial audit of the Block Education Department, Lormi for the period
from August, 1993 to July, 1996 vide Ex.P-16 and in cross-
examination, he also admitted that Block Education Officer did not
give him any information that applicant-Anand Tiwari was the
in-charge of the book store for the years 1994-95 and 1995-96. It is
also admitted by him that books are kept in the open
varandah/chamber of the Office of Block Education Officer, Lormi.
Hence, it is not established that at the relevant time, applicant-Anand
Tiwari was the in-charge of the book store and the seized books were
in the possession of applicant-Anand Tiwari.
11. Thus, from perusal of the above evidence, it is clear that PW-8 S.K.
Behar, ADM, after conducting search and seizure, he himself inquired
the matter, whereas as per Section 94 Cr.P.C., he ought to have
authorized any police officer above the rank of constable only by
warrant to further proceed of the matter, however, he did not do so and
exceeded his jurisdiction. Further, prosecution has failed to prove that
there is cogent and clinching evidence on record which would show the
complicity of the applicants in the crime in question and that there is no
iota of evidence on record to show that the books as alleged seized
from the shop of applicant- Rakesh Mishra are meant for free
distribution to SC/ST children and not for sale and that the seized
articles have also not been produced by the prosecution before the trial
Court during trial for the reasons best known to it. It is also not
established by the prosecution that the seized articles were kept in the
safe custody and the entire proceedings under which the whole shop
was sealed, has also not been proved by the prosecution.
12. In that view of the matter, I am of the considered opinion that the
prosecution has failed to prove its case beyond reasonable doubt,
therefore, the applicants are entitled for acquittal on the basis of benefit
of doubt. The learned trial Court as well as Appellate Court were totally
unjustified in convicting and sentencing the applicants for the aforesaid
offences.
13. Accordingly, the impugned judgments of conviction and order of
sentence passed by the trial Court dated 08.01.2008 and that of
Appellate Court dated 26.09.2012 are liable to be and are hereby set-
aside and the applicants are acquitted of the charges under Sections
409 & 411 of IPC respectively by extending them the benefit of doubt.
14. In the result, the criminal revisions are allowed.
15. Since the applicants are reported to be on bail, their bail bonds shall
remain in force for a period of six months from today in view of
provision of Section 437-A of Cr.P.C.
Sd/-
(Radhakishan Agrawal)
JUDGE
Akhilesh
