Afr Udayabhanu Subudhi vs State Of Orissa
2022 Latest Caselaw 6508 Ori

                   ORISSA HIGH COURT: CUTTACK

                           CRLMC No.3625 of 2015

         In the matter of application under Section 482 of the
         Criminal Procedure Code, 1973.
                              ---------------

AFR Udayabhanu Subudhi ..... Petitioner

-Versus-

         State of Orissa               .....               Opp. Party



           For Petitioner      :   Mr. J.Pal, Advocate

           For Opp. Party      :   Mr. S.N.Das, ASC


         P R E S E N T:

              HONOURABLE MR. JUSTICE G. SATAPATHY

Date of hearing: 13.10.2022: Date of judgment: 14.11.2022

G.SATAPATHY, J. The petitioner seeks the indulgence of this

court to quash the order passed on 25.03.2014 by learned

S.D.J.M., Bhubaneswar in C.T. Case No. 768 of 2014

taking cognizance of offences U/Ss. 379/411 of I.P.C. in an

application U/S. 482 of Cr.P.C.

// 2 //

2. The back ground of facts as projected in this case

may be stated precisely as, on 28.02.2014 while performing

day patrolling, the informant A.S.I. and one Havildar on

receipt of reliable information about one resident of Plot No.

B-49 near Iscon Press Bhubaneswar dealing with stolen

mobile informed such information to I.I.C. Infocity Police

Station over phone and conducted raid in the said house

situated in presence of witnesses Subhendu Kumar

Moharana and Prasant Kumar Patra and accordingly,

recovered 61 new sealed Mobile phones of different company

and 3 old mobile phones from one Udayabhanu Subudhi

residing in the said house on Plot No. B-49. On demand,

said Udayabhanu Subudhi could not produce any authority

of the aforesaid 64 mobile phones and further disclosed

before them to have received such stolen mobiles and selling

it to general public by keeping the same in his house. The

informant seized aforesaid 64 mobile phones of different

company under a proper seizure list and produced the

accused Udayabhanu Subudhi- petitioner herein before the

I.I.C. Infocity Police Station along with the seized mobile // 3 //

phones by presenting an F.I.R. which was registered as

Infocity P.S Case No. 14 of 2014 for offences U/Ss. 379/411

of I.P.C. with commencement of investigation by another

A.S.I., N.Ch.Palai who forwarded the petitioner-accused to

the Court and examined the witnesses and ultimately

submitted charge sheet against the petitioner for offences

U/Ss. 379/411 of I.P.C.

After perusal of F.I.R., Case Diaries, statement of

witnesses recorded U/S. 161 of Cr.P.C., seizure list,

zimanama, forwarding report, arrest memo, inspection

memo and other connected papers of the case, the learned

S.D.J.M., Bhubaneswar being prima facie satisfied took

cognizance of offences U/Ss. 379/411 of I.P.C. by the

impugned order following the provision of Section 190(b) of

Cr.P.C. and the learned S.D.J.M., Bhubaneswar finding

sufficient materials against the petitioner issued process

against him by way of issuance of summon.

Feeling aggrieved, the petitioner impugned the

order taking cognizance of offence and issuance of process

against him by way of this CRLMC U/S. 482 of Cr.P.C.

// 4 //

3. In the course of haring of the application for

quashing the impugned order, Mr. Jaydeep Pal, learned

counsel for the petitioner by placing the statement of

witnesses and the F.I.R. strenuously submitted that no

ingredients of offence U/Ss. 379/411 of I.P.C. is disclosed

on a bare perusal of materials on record as nobody has

complained against the petitioner to have stolen the mobile

phones. He further submitted that the only material

available against the petitioner for the alleged offence is his

confessional statement before police which in way is not

admissible under the law being hit by S. 25 of the Indian

Evidence Act. He further submitted that the materials on

record do not disclose about petitioner removing any mobile

phones out of the possession of its owner without his

consent with dishonest intention and once the offence U/S.

379 of I.P.C. is found not made out against the petitioner,

automatically the offence U/S. 411 of I.P.C. which is for

receiving stolen property could not be attracted against the

petitioner. It was also submitted by him that all the mobile

phones were restored to the petitioner by way of an order // 5 //

passed by this court in a revision application against the

refusal of release of such mobile phones in favour of the

petitioner by the orders of the learned Magistrate in an

application U/S. 457 of Cr.P.C. Mr. Jaydeep Pal, learned

counsel for the petitioner empathetically submitted that

since the mobile phones were seized by the police, they

could have explored the technology to find out owner of the

mobile phones by using I.M.E.I. numbers of such mobile

phones but the investigating agency had never done so by

verifying the I.M.E.I. numbers of mobile phones nor tried to

find out any factum of theft of any mobile phone by

exploring the I.M.E.I. numbers. It was also submitted by

him that when no offence is found to have been made out

against the petitioner, the impugned order by which

cognizance was taken is an error apparent on the face of law

and consequently, the issuance of process on the basis of

such unsustainable order would definitely an abuse of

process of the Court and the impugned order, thereby, may

kindly be quashed. In relying upon the decisions in (1)

Mahabir Sao Vs. the State of Bihar; A.I.R. 1972 SC 642 // 6 //

(2) Chandmal and Others Vs. State of Rajasthan; A.I.R.

1976 SC 917 (3) R.K. Vijayasarathy and Others Vs.

Sudha Seetharam and Others; (2019) 16 SCC 739 and

(4) State of Haryana and Others Vs. Ch. Bhajan Lal and

Others; 1992 SC 604, learned counsel for the petitioner

submitted that the impugned order being not inconsonance

with law and the principle culled out in these decisions

having supported the grounds of the petitioner, the present

criminal proceeding would otherwise than an abuse of

process of Court and it may kindly be quashed in the

interest of justice.

4. In repelling the submissions advanced on behalf

of the petitioner, Mr. S.N.Das, learned counsel for the State

by filing a short written note of arguments supports the

impugned order and further submitted that since the

petitioner could not produce any document in support of

such possession of huge number of mobile phones, a

presumption of law U/S. 114 of the Evidence Act would

arise against the petitioner for commission of theft or for

receiver of stolen property. It was also submitted by him // 7 //

that the non-production of any document in support of

possession of huge number of mobile phones would lead to

an adverse inference against the petitioner on the principle

that the evidence which could be and is not produced, if

produced, could be unfavourable to the person who

withholds it. In support of his contention, learned counsel

for the State has relied upon a decision in Ridhikaran

Ramadhin Vs. French Motor Car Company Ltd &

Others; AIR 1955 Orissa 60 and Ganesh Lal Vs. State of

Rajasthan; (2002) 1 SCC 731. Ultimately relying upon the

case in Bhajan Lal (supra), learned counsel for the State

submitted that the Court has rightly taken cognizance of

offence by impugned order which is not at all unsustainable

in the eye of law and, thereby, the present CRLMC being

unmerited is liable to be dismissed and he, accordingly,

prayed to dismiss the CRLMC.

5. In view of the rival submissions, the whole and

sole question required to be adjudicated upon in this case is

whether the uncontroverted allegations appearing in the

F.I.R. together with statement of witnesses and other // 8 //

documents on record disclose commission of any offence

either U/Ss. 379/411 of I.P.C. or for any offence since the

petitioner has not only challenged the order taking

cognizance of offence for aforesaid offences but also has

strenuously argued in support of his contention about

materials on record do not disclose commission of any

offence by the petitioner. Admittedly, the learned S.D.J.M.,

Bhubaneswar by the impugned order has taken cognizance

of offence U/Ss. 379/411 of IPC which prescribes for

punishment for theft and as a receiver of stolen property,

but theft has been defined in Section 378 of IPC in the

following words:-

"Theft - Whoever, intending to take dishonestly any moveable 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.

Explanation 1.- A thing so long as it is attached to the earth, not being moveable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is served from the earth.

Explanation 2.- A moving effected by the same act which effects the severance may be a theft.

// 9 //

Explanation 3.- A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.

Explanation 4.- A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.

Explanation 5.- The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied."

6. On a plain reading of the aforesaid Section of 378

of IPC would go to indicate that if anybody takes dishonestly

any movable property out of the possession of any person

without the consent of later and moves that property in

order to such taking, he can be said to have committed

theft. In other words, the ingredients of offence of theft has

been divided into two parts (1) the person charged with

theft has to remove some immovable property, (2) such

removal is out of possession of another person without his

consent and with dishonest intention. It is no doubt true

that the F.I.R. was lodged by the A.S.I. who in the course of

day patrolling had got some reliable information and // 10 //

conducted raid in the house of the petitioner at Plot No. B-

49 Near Eskon Press, C.I.E., Bhubaneswar and recovered

61 new mobile phones each in sealed packet and three old

mobile phones of different company but the petitioner failed

to produce any document in support of such possession and

further confessed before him to have collected such mobile

phones on theft and selling it to general public. While

conducting raid in presence of witnesses Suvendu Kumar

Moharana and Prasant Kumar Patra, the A.S.I. was also

accompanied by one Havildar Dillip Kumar Badjena. On

coming back to the statement of Havildar Dillip Kumar

Badjena, he appears to have stated that in the course of

conduct of raid in the house of the petitioner, number of

mobile phones were found and on being asked, said person

(petitioner) fails to produce any document and confessed to

have committed theft of mobile phones and selling it by

keeping the same in his house. The statement of witnesses

Prasant Kumar Patra and Suvendu Kumar Moharana

disclose that they were the witness to seizure and 64

numbers of mobile (61 new and 3 old) were recovered by // 11 //

police from the house of the petitioner who could not

produce any document in support of such possession of

mobiles and confessed before police for committing theft of

mobiles. Similarly, the statement of witnesses Sukant

Malick and Mayadhar Sethy also disclose that the petitioner

could not produce any document in support of possession of

mobiles and fails to give any convincing reply. From the

above narration of allegation, only one thing comes out of

the admitted materials on record is the confession of

accused before police for commission of theft of mobile

phones which is totally inadmissible in the eye of law being

hit by Section 25 of the Evidence Act. The aforesaid

admitted materials on record do not disclose about

petitioner removing any of the mobiles out of possession of

any person with dishonest intention to cause wrongful loss

to the later. It goes without saying that the materials on

record discloses recovery of 61 new mobile phones in sealed

condition but despite investigation, the ownership of the

mobile phones could not be ascertained, no matter the same

could have been ascertained from the IMEI numbers of each // 12 //

individual mobile phones but the investigation was never

directed in that regard.

It is, however, submitted for the petitioner that

he was the owner of mobile phones which was released in

his favour after an order being passed by this Court after

taking into consideration the documents produced in

support of possession of such mobile phones but such

submission is hardly required to be considered at this stage

without first taking into consideration as to whether the

materials on record disclose commission of any offence

against the petitioner. After careful conspectus of materials

on record, there appears nothing to indicate that the

petitioner had removed the mobiles out of the possession of

any person without his consent and with dishonest

intention. Further, no evidence was collected by the

investigating agency to the effect that the mobile phones

were acquired or received by theft. Law is well settled that

there can be no offence for dishonestly receiving stolen

property unless the property which is allegedly received is

found to be stolen property. There is nothing on record to // 13 //

indicate that the mobile phones found in possession of the

petitioner have been transferred by theft or by extortion or

by robbery.

7. In the course of hearing, learned counsel for the

opposite party-State has made a feeble attempt to counter

the submissions advanced for the petitioner by taking refuge

of illustration (g) to Section 144 of Evidence Act which

speaks that the evidence which could be and is not

produced would, if produced, be unfavourable to the person

who withholds it but such submission is not at all

applicable to this case at hand and clearly becomes

Academic in nature inasmuch as the case is at the stage of

taking cognizance but not at the stage of leading evidence by

the petitioner in support of his defence. Learned counsel for

the State has also relied upon the case of Rasananda

Bindhani & Another v. State of Orissa; 1991 SCC

Online Orissa 323 but the same cannot be made helpful to

the State inasmuch as in the relied on case, Court had

taken into consideration about the materials which were

seized from the house of the petitioner therein were not // 14 //

commonly available in market and, therefore, a presumption

thereof was unlawful can be made and the aforesaid

inference was drawn after taking into consideration the

evidence led in trial, but in this case the trial is yet to be

commenced and the articles were commonly available in the

market.

8. Law is well settled that where the ingredients

constituting a criminal offence are not prima facie made out

on a bare reading of the averment made in the FIR together

with statement of witnesses and document produced

therewith, the further continuation of such criminal

proceeding will definitely constitute an abuse of the process

of the Court and to secure the ends of justice, such criminal

proceeding may be quashed. The aforesaid observation of

this Court is squarely backed by the law laid down by the

Apex Court at para-102(3) of the decision in State of

Haryana v. Bhajanlal; 1992 Supp.(1) SCC 335, wherein

it is held that the inherent power can be exercised on the

condition that the uncontroverted allegations made in the

FIR or the complaint and the evidence collected in support // 15 //

of the same do not disclose the commission of any offence

and make out a case against the accused. In this case, the

uncontroverted allegations on record neither

constitute/disclose the commission of any offence nor

makes out a case against the petitioner. It is true that while

exercising the power U/S.482 of Cr.P.C., the Court has to be

very much careful and exercise such power sparingly with

care, caution and except to prevent abuse of process of

Court or to secure the ends of justice, the Court should not

exercise such power. In the given case, when the materials

collected by the prosecution do not disclose any prima facie

case against the petitioner for commission of offence either

U/S.379 of IPC or 411 of IPC, the further continuation of

criminal proceeding would nothing but an abuse of process

of the Court and the further continuation of criminal

proceeding needs to be quashed to secure the ends of

justice.

9. On reverting back to the impugned order, it

appears that the learned S.D.J.M., Bhubaneswar by the

impugned order has taken cognizance of offence // 16 //

U/Ss.379/411 of IPC by merely perusing the FIR, C.Ds.,

161 Cr.P.C. statement, seizure list, zimanama, forwarding

report, arrest memo, inspection memo, injury report and

other connected papers on record but the same appears to

be done without any discussion nor there was any legal

scrutiny of the materials on record by the Court taking

cognizance of offence to accord satisfaction about existence

of prima facie case against the petitioner for commission of

offence U/Ss.379/411 of IPC and thus, the impugned order

appears to have been passed without exercise of sound

judicial discretion in conformity with the provision of

Section 190 of Cr.P.C. nor there being any discussion with

regard to according satisfaction to proceed against the

petitioner U/S.204 of Cr.P.C. while issuing process against

him. It appears that the impugned order has been passed

without any rhymes and reason. Hence, the impugned order

is liable to the quashed.

10. In view of the discussion of facts and law made

hereinabove, this Court on a conspectus of materials on

record finds the only incriminating material against the // 17 //

petitioner is his confession before police which is

inadmissible in the eye of law and no further ingredients of

any offence was found from the record nor the materials

disclose any prima facie case against the petitioner for

commission of any offence. This Court, therefore, considers

that the criminal proceeding against the petitioner is an

abuse of process of Court and the criminal proceeding is

required to be quashed to secure the ends of justice. Hence,

the impugned order passed on 25.03.2014 by learned

S.D.J.M., Bhubaneswar in C.T. Case No.768 of 2014 taking

cognizance of offences U/Ss.379/411 of IPC and issuing of

process against the petitioner is hereby quashed and set-

aside. Consequently, the criminal proceeding arising out of

the impugned order stands dropped.

In the result, the CRLMC is allowed on contest,

but in the circumstance without any costs.

..............................

G.SATAPATHY, JUDGE

Orissa High Court, Cuttack The 14th November, 2022, Kishore // 18 //