Vijay Kumar Verma - (1.) HEARD Sri Amit Srivastava, learned counsel for the revisionists, learned A.G.A. for the State and perused the record.
(2.) CHALLENGE in this revision preferred under Section 397 of the Code of Criminal Procedure (in short, 'the Cr. P.C.') is to the orders dated 22.7.2008 and 21.8.2008, passed by Sri Mahesh Nautiyal, the then Addl. Chief Judicial Magistrate (Court No. 27) Agra in Criminal Case No. 177 of 2007, State v. Jamuna Prasad Gautam and others, under Section 409 I.P.C. P. S. Lohamandi, Agra. By the impugned order dated 22.7.2008, the application moved by the accused-revisionists for discharging them from the offence under Section 409 of the Indian Penal Code (in short, 'the I.P.C.') has been rejected and thereafter by the impugned order dated 21.8.2008 charge under Section 409, I.P.C. has been framed against them. Shorn of unnecessary details, the facts emerging from the record leading to the filing of this revision, in brief, are that on getting information from an informer on 27.12.2006, a raid was made at about 1.00 p.m. by the Inspector O.P.S. Bhati, posted as S.H.O. in P. S. Lohamandi, alongwith other police personnel at the clinic of Dr. Mahesh Chauhan (revisionist No. 1) situated in Mohalla New Rajnagar P. S. Lohamandi, Agra, where the revisionist No. 2, Kishore and one Jamuna Prasad Gautam were also present. It is alleged that Dr. Mukesh Chauhan and Kishore handed over two plastic bags, from which 150 live cartridges of 303 bore and 1500 empty cartridge of the same bore were recovered. Thereafter, on the same day a raid was made at the house of Jamuna Prasad Gautam and 250 live cartridges of 303 bore and 2500 empty cartridges of the same bore were recovered from two bags. On enquiry by the police personnel, it was stated by these persons that they had purchased these cartridges for Rs. 60,000 from Assistant Arms Moharrir Sat Pal Sharma of Police Line, Faridabad (Haryana). On the basis of the recovery memo, which was prepared at the time of alleged recovery of cartridges, an F.I.R. was lodged on 27.12.2006 by the Inspector O.P.S. Bhati at P. S. Lohamandi, Agra, where a case under Sections 409 and 41/411, I.P.C. at Crime No. 356/06 was registered against Jamuna Prasad Gautam, Satpal Sharma, Mukesh Chauhan and Kishore and separate cases under Section 25 of Arms Act were also registered against Jamuna Prasad Gautam and both the revisionists at Crime Nos. 357/06, 358/06 and 359/06 in the same F.I.R. After investigation, charge-sheet under Section 409, I.P.C. in Crime No. 356 of 2006 was submitted against all the four accused, on which cognizance was taken by the Magistrate concerned and impugned orders were passed thereafter in Criminal Case No. 177 of 2007. Hence, this revision.
(3.) THE main submission made by the learned counsel for the revisionists is that the offence under Section 409, I.P.C. is not made out against the revisionists, as no property was entrusted to them in the capacity of a public servant or in the way of their business as a banker, merchant, factor, broker, attorney or agent and these accused did not dishonestly misappropriate any property. THE contention of the learned counsel is that a person can be charged under Section 409, I.P.C., if any property is entrusted to him in the capacity of a public servant etc., and that property is dishonestly misappropriated by that person and since in the present case neither the revisionists are public servants etc., nor the seized cartridges were entrusted to them in that capacity, hence, there was no occasion for the learned Magistrate to frame charge against the revisionists under Section 409, I.P.C. This contention of the learned counsel has got force and must be accepted. Section 409, I.P.C. relates to the offence of criminal breach of trust by a public servant etc. The offence of criminal breach of trust has been defined in Section 405, I.P.C., which reads thus : 405. Criminal breach of trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust". The "Explanations" of Section 405, I.P.C. are not relevant in the present case and hence, they are not being extracted. ;