Criminal
Rouf
(Querist) 28 July 2012
This query is : Resolved
my question is whether any case under section 406 ipc is made out in the following situation..
Jewellery and golden ornaments lying in locker with the key in the possesion of complainant.Both complainant and accused joint operating holders of the bank locker.Complainant claims that accused doesnt allow the operation of locker with the key being in the possesion of accused and the jewellery belongs to her.Magestrate not satisfied with the statement of complainant and her witnesse on oath,and orders for police investigation.Police report falsifies the statement of complainant and states that all the jewellery is lying safe in the locker with key in the possesion of complainant and nothing has been misappropriated from the locker since key lies with her.Was magistrate justified in taking the cognizance against the accused despite of police report being not adverse and magestrate too not satisfied with the statement of complainant and her witnesses on oath.Kindly reciprocate.
ashutosh mishra
(Expert) 28 July 2012
In CASE NO.: Appeal (crl.) 1716 of 2007
PETITIONER: ONKAR NATH MISHRA & ORS.
RESPONDENT: STATE (NCT OF DELHI) & ANR.
DATE OF JUDGMENT: 14/12/2007
BENCH: ASHOK BHAN & D.K. JAIN
J U D G M E N T
[Arising out of S.L.P. (Criminal) No. 2516 of 2007) THE SUPREME COURT OF INDIA held that
"It is write that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What
needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the
existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
Then again in State of Maharashtra and others Vs. Som Nath Thapa and others , a three judge Bench of APEX Court, after noting three pairs of sections viz. (i) Sections 227 and 228 insofar
as sessions trial is concerned; (ii) Sections 239 and 240 relatable to trial of warrant cases; and (iii)
Sections 245 (1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge,
stated thus:
if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the
court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence.
It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true
at that stage.
In a later decision in State of M.P. Vs. Mohanlal Soni , APEX Court, referring to several previous decisions held that the crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
According to Section 406 I.P.C., the offence of criminal breach of trust is committed when a person who is entrusted in any manner with the property or with any dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or wilfully suffers any other person so to do. Thus in the commission of the offence of criminal breach of trust, two distinct
parts are involved. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing
with the property dishonestly and contrary to the terms of the obligation created.
. (YOU may See: The
Superintendent & remembrancer of Legal Affairs, West Bengal Vs. S.K. Roy ) .
The brief is with you and relevant consideration are advanced here for your assessment.Judge on your own and file revision.
Rouf
(Querist) 28 July 2012
Thanks for detailed Answer,,i would like to say even revision in session court and high court has been dismissed.
ajay sethi
(Expert) 28 July 2012
well advised by ashutosh
Rouf
(Querist) 28 July 2012
Thanks to all of you,i have filed a SLP in the supreme court and it is yet awaited for listing.Now my concern is whether my case is strong enough to be considered by supreme court,and can i get the proceedins stayed in the lower court,as i feel no case under 406 ipc is made out prime faciae.kindly eloborate under the purview of law.
