- (1.) 12/ 7.5.12. Heard learned counsel appearing for the petitioners and learned counsel appearing for the State.
(2.) THE case of the prosecution is that on the day of occurrence I.e. on 20.2.2005 when the informant at about 11 P.M. in the night along with other villagers saw Auto Rickshaw bearing registration no.BR-17L-0556 passing through with high speed, they tried to intercept it but the driver succeeded in going from there. However, it was intercepted at some distance over which gram flour (Sattu) and puffed rice (Muri) were found loaded which were suspected to be the articles meant for distribution to the beneficiary under a scheme. Suspicion was raised that it may have been brought from Anganbari Center where Kunti Devi, wife of Raj Kumar Mehta was working as Anganbari Sevika. On such allegation, a case was registered as Katkamsandi P.S. Case no. 32 of 2005 under Section 409 of the Indian Penal Code and also under Section 7 of the Essential Commodities Act. However in course of investigation, allegation was found not only to be false but the case, according to the Investigating Officer seems to have been filed maliciously.
(3.) AFTER submission of the final form, notice was issued to the informant who having been appeared filed a protest petition. Meanwhile, final form was accepted by the court. The said protest petition was treated to be a complaint in which ten witnesses including C.W.9 were examined during enquiry. The court having found prima facie case being made out under Sections 408 and 109 of the Indian Penal Code issued summoned to the accused persons. Being aggrieved with that order, this application has been filed. Mr.T.R.Bajaj, learned Sr. Counsel appearing for the petitioners submitted that in spite of ten witnesses being examined, the prosecution has failed to bring forth the fact that the materials which were being carried by the Auto Rickshaw had been brought from Anganbari Center and as such, the court below has committed illegality in issuing process against those petitioners. In this regard, it was further stated that all the witnesses except C.W.9 has made statement before the police that when they intercepted Auto Rickshaw, they found the accused persons carrying gram flour (Sattu) and puffed rice (Muri) which were being taken for selling it in the black market but they have never said that those articles were the articles of Anganbari Center or any other Government Institution whereas C.W.9 who was the most competent witness to say something about the commission of offence under Section 409 has stated that he had never been shown the articles which were being carried in the Auto Rickshaw and in that event, he cannot say whether those articles belong to Anganbari Center. Thus, this witness has put the death nail upon the case of the complainant as he being the competent witness has stated that the articles which were being carried never belongs to any Anganbari Center. Submissions which were advanced on the basis of the statements made during enquiry could not be controverted on behalf of the State. Thus, the situation remains that though the process has been issued upon the petitioners after finding the case prima facie being made out under Section 408/109 of the Indian Penal Code but no ingredient whatever seems to be there for constituting offence under Section 408 as none of the witnesses during enquiry has said about the articles belonging to the Anganbari Center were entrusted to these petitioner. In absence of such essential ingredients, no offence is made out under Section 408/109 of the Indian Penal Code. Accordingly, entire criminal prosecution including the order dated 30.5.2007 is hereby quashed.;