1. Two petitioners, who are Manager and Owner of a Transport Company, namely, Capital Transport, are before this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 22.3.2001 passed in G.R. No.1333 of 1996, Tr. No.498 of 2001 arising out of Gaya Kotwali P.S. Case No.121 of 1996.
2. Short fact of the case is that official of the Commercial Taxes Department intercepted a truck bearing Registration No.BRB 9015 loaded with various articles. Since the Transporter had violated certain provisions of the Bihar Finance Act, the Transport Company was imposed penalty of Rs.77,822.16 paise. It was alleged in the written report of Commercial Taxes Officer, Investigation Bureau, Gaya Division, Gaya submitted before the Officer-in-charge, Kotwali Police Station, Gaya that while releasing the truck along with goods, the Transporter/petitioners were directed to ascertain and note down the name and address of the persons to whom the goods of the truck were to be released and furnish the same to the Commercial Taxes Authorities and the goods were to be released after obtaining permission from the authority concerned. It was alleged that subsequently, it was found that no goods were available at the office of the Transporter and as such it was alleged that the petitioners had committed offences under Sections 49B and 39(3-b) of the Bihar Finance Act and 420 of the Indian Penal Code. After registering F.I.R., police investigated the case and submitted charge sheet. The F.I.R. was registered on 27.6.1996 and after delay of more than three years, charge sheet was submitted on 30th December,1999 against both the petitioners for the offence under Sections 406 and 420 of the Indian Penal Code and 49(3-d) of the Bihar Finance Act. At the stage of charge, petition was filed on behalf of the petitioners for their discharge. The petitioners had taken a specific plea that at the time of release of the vehicle along with goods, no condition was imposed by the Transport Authority to obtain permission/consent from the Commercial Authority before releasing the goods, which were loaded over the truck. However, Shri S.P. Pandey, learned Judicial Magistrate, Ist Class, Gaya, by its order dated 22.3.2001 rejected the discharge petition and the learned Magistrate was of the view that only material was to frame charge under Section 406 of the Indian Penal Code. The learned Magistrate was satisfied that no offence under Section 420 of the Indian Penal Code and Section 49 of the Finance Act was made out.
3. Aggrieved with the order of rejection of discharge petition, the petitioners approached this Court by filing the present petition. On 20.12.2001, while granting time to the State for seeking instruction, this Court directed that till next date of hearing, further proceeding in the court below shall remain stayed and on 18.7.2002, the case was admitted for hearing and it was directed that further proceeding in the investigation shall remain stayed.
4. Shri N.K. Agrawal, learned Senior Counsel appearing on behalf of the petitioners, while challenging the order of rejection of discharge petition, submits that despite the petitioners had taken specific plea that at the time of release of the truck along with goods after accepting the penalty amount, which was deposited by the petitioners, no condition was imposed to take consent for release of the goods, however, the learned Magistrate had not discussed the plea taken by the petitioners. Learned counsel for the petitioners has referred to Annexure-2 to the petition, which is a copy of the order of release of the truck loaded with the goods after acceptance of the deposit of penalty amount of Rs.77,822.16 paise, the said release order was issued on 19.4.1996. Shri Agrawal, while placing this order at the time of argument, submits that there were no such conditions in the release order. However, at subsequent stage, an instruction was issued by the Joint Commissioner, Commercial Taxes, which was addressed to Deputy Commissioner, Commercial Taxes, and Investigation Bureau whereby he was directed to take undertaking from the petitioners to obtain consent before release of the goods. It was submitted that said instruction was never issued to the petitioners and as such it cannot be a case under Section 406 of the Indian Penal Code. It was further submitted that the petitioners being Transporter, were already imposed penalty and penalty amount was deposited in the year 1996 and matter remained pending for such a long time. The petitioners have already undergone rigour of the pendency of the case for quite a long time and on this ground also, the entire proceeding before the court below may set aside.
5. Shri A.M.P. Mehta learned Additional Public prosecutor appearing on behalf of the State has opposed the prayer of the petitioners. He has stated that there was specific direction not to release the goods loaded over the truck without prior permission of the authority concerned and as such violation of that condition amounted to commission of offence under Section 406 of the Indian Penal Code.
6. Besides hearing learned counsel for the parties, I have also perused the materials available on record. Perusal of the record reveals that the petitioners were also imposed penalty for violation of the provisions of the Finance Act and they deposited the penalty amount and only thereafter release order was issued. In the release order, there were no conditions to obtain permission from the authority concerned before the release of the goods loaded over the truck to the concerned parties. Moreover, the order on which the prosecution was relying was issued much after issuance of the release order and that too it was addressed to the Commercial Taxes Officers. The learned Magistrate, while hearing the discharge petition, in my opinion, was required to examine as to whether the instruction which was issued by the Deputy Commissioner to the Commercial Taxes Officer was served on the petitioners before releasing of the vehicle or not. For application of provision under Section 406 of the Indian Penal Code in the facts and circumstances of the present case, it was necessary to examine. The court is of the view that in absence of such material, the learned Magistrate was not required to come with a finding that it was a fit case for framing of charge under Section 406 of the Indian Penal code. Besides merit of the case, pendency of the present case since 1996 is also one of the ground for interfering with the impugned order and the proceeding and as such the court is of the opinion that it is a fit case for exercising inherent jurisdiction in favour of the petitioners and as such order dated 22.3.2001 passed by Shri S.P. Pandey, Judicial Magistrate, Ist Class, Gaya in G.R. No.1333 of 1996, Tr. No.498 of 2001 arising out of Gaya Kotwali P.S. Case No.121 of 1996 is hereby set aside and petition stands allowed.