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2015 Supreme(Pat) 554
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Ramadhar Rai & Anr. – Petitioner
Versus
The State of Bihar - Opposite Parties
Criminal Miscellaneous No.18912 of 2015
Decided On : 18-05-2015
For the Petitioner/s: Mr. Radha Mohan Singh, Adv., Mr. Pravin Kumar, Adv.
For the Opposite Party : Mr. Dr. Mayanand Jha, APP
The court emphasized the importance of satisfying the essential ingredients of the offences before framing charges and highlighted the limitations on prosecuting under FEMA for foreign exchange violations.
Headnote:
Code of Criminal Procedure - Quashing of Order - Indian Penal Code, Sections 411, 414, 489A-C, Foreign Exchange Regulation Act - FERA, Foreign Exchange Management Act - FEMA
Fact of the Case:
The petitioners were intercepted and found in possession of Nepali currency and were charged under various sections of the Indian Penal Code and FERA. They filed an application for discharge under section 227 of the Code, which was rejected by the 4th Additional Sessions Judge, Motihari. The order was challenged before the Court.
Finding of the Court:
The Court found that the ingredients of the offences alleged against the petitioners were not attracted in the present case. It held that the charges cannot be framed on the basis of wild suspicion and hypothetical presumption. The impugned order was quashed, and the entire criminal prosecution against the petitioners was dismissed.
Issues: The issues revolved around the possession of stolen property, counterfeit currency, and the applicability of FERA and FEMA in the case.
Ratio Decidendi: The court emphasized that the essential ingredients of the offences under the Indian Penal Code must be satisfied before framing charges. It also highlighted the repeal of FERA and the limitations on prosecuting under FEMA for foreign exchange violations.
Final Decision: The application for quashing the order was allowed, and the entire criminal prosecution against the petitioners was quashed.
The present application under section 482 of the Code of Criminal Procedure (in short ‘the Code’) has been filed for quashing the order dated 24.11.2014 passed in Sessions Trial No. 446 of 2014 arising out of Kundwa Chainpur P.S.Case No. 93 of 2013 by the 4th Additional Sessions Judge, Motihari, whereby the application filed by the petitioners under section 227 of the Code for discharge has been dismissed.
2. The First Information Report of Kundwa Chainpur P.S.Case No. 93 of 2013 was registered for the offences punishable under sections 414, 411, 489A, 489-B, 489-C of the Indian Penal Code as well as 3 and 4 of the Foreign Exchange Regulation Act (in short ‘FERA’) on the basis of self-statement of SI Harendra Kumar, SHO, Kundwa Chainpur Police Station recorded by himself at 11.00 a.m. on 08.09.2013 at Kundwa Chainpur Police Station. According to the allegations made in the First Information Report, a police raiding team, led by the informant Harendra Kumar, intercepted the petitioners, who were coming on a Hero Honda Motorcycle bearing Registration No. BR-05B-9081 on 08.09.2013 at about 7.00 a.m. near Indo-Nepal border at Pundeo Chowk situated near Kundwa Chainpur Police Station. On enquiry, they disclosed their names as Ramadhar Rai (Petitioner No.1) and Nurul Islam (Petitioner No.2). On search of their person, Rs.1,10,000/- Nepali currency was found from the possession of Ramadhar Rai whereas Rs.1,00,000/- Nepali currency was found from the possession of Nurul Islam. On further enquiry, they disclosed that they smuggle cattle from India to Nepal and the Nepali currency recovered from them was the sale proceeds derived out of the said business. It has been further alleged that on demand they could not produce papers relating to the motorcycle on which they were traveling and the mobile phones being possessed by them.
3. On the basis of the aforesaid allegations, police case was registered and investigation was taken up. On completion of investigation, the Investigating Officer submitted charge sheet against the petitioners before the learned Sub Divisional Judicial Magistrate, Sikrahna, Motihari for the offences alleged in the First Information Report. The learned Sub Divisional Judicial Magistrate, Sikrahna, Motihari took cognizance of the offence vide order dated 17.02.2014 and thereafter committed the case to the court of Sessions for trial.
4. At the stage of framing of charge, an application under section 227 of the Code was filed on behalf of the petitioners. The contention of the petitioners was that in the given facts and circumstances of the case, none of the ingredients of the offences alleged in the First Information Report for which charge sheet was submitted by the police were attracted against the petitioners. However, the learned 4th Additional Sessions Judge, Motihari rejected the aforementioned application filed under section 227 of the Code vide impugned order dated 24.11.2014. The aforementioned order dated 24.11.2014 is under challenge before this Court.
5. Learned counsel for the petitioners has submitted that there is nothing on record on the basis of which it can be said that the petitioners were found in possession of any stolen property. Simply because no paper could be produced by the petitioners at the time of interception, in respect of the vehicle and the mobile phones possessed by them, framing of charge under section 411 or 414 of the Indian Penal Code, is not justified. He has submitted that it has transpired in course of investigation that the seized vehicle and one mobile phone belong to Sheetal Rai, who is father of petitioner no.1 Ramadhar Rai and another mobile phone belong to petitioner no.2 Nurul Islam. The said seized articles are not stolen properties, so, there would be no application of sections 411 and 414 of the Indian Penal Code against the accused persons. He has further submitted that even if the entire allegations made in the First Information Report are taken to be tru
