Assignment 1
Intern ID: N88/2024
1. By analyzing sec 482 of the code of criminal procedure it conclude that
it is a pivotal provision that grants inherent powers to the High Courts and
empowers them to exercise their jurisdiction to prevent abuse of the legal
process and to secure the ends of justice
Scope
Preventing Abuse of Process and Securing the Ends of Justice: The High
Courts have the power to intervene and prevent cases or complaints
that are filed with mala-fide intentions or with the sole purpose of
harassing someone.
Quashing Criminal Proceedings and Protection of Innocent Persons: The
High Court can use its inherent powers under this section to quash
criminal proceedings, including Complaints and First Information
Reports and protect innocent persons who may be wrongly implicated
in criminal cases in case there is no evidence to support the charges
against an individual.
Setting Aside Illegal Orders: The inherent powers under Section 482
can also be used to set aside illegal orders passed by a court or a
tribunal. The High Court may exercise these powers to set aside orders
that are not sustainable in law, or orders that have been passed
without jurisdiction or in violation of the principles of natural justice.
The power of High Courts under Section 482 is discretionary, therefore,
the high courts may refuse to exercise the discretion on a case-to-case
basis.
Limitation
While it may seem that a provision that is meant to ensure complete justice
must not bar applications for a technical issue such as limitation period and
while the Limitation Act, 1963 does not squarely apply to these applications
or any criminal proceedings unless specified in the provision, the High Courts
have held on multiple instances that an application under Section 482
(hereinafter ‘482 Application’) cannot be filed with inordinate delay. In light
of this information the question arises whether prescribing a limitation period
on a 482 Application defeats the purpose for which the provision was
inserted.
. In taking this position, the Court relied upon the judgement of the Delhi
High Court in Vipin Kumar Gupta v. Sarvesh Mahajan, wherein it was
held that if the Court failed to take into account inordinate delay and latches
before invoking its power under Section 482, there would be no end to the
litigation.
2.
After reviewing the case of Alok Garg Vs State of U.P & another .the
facts of the case are as follows :
The applicants alok garg are the partners of M/s.JagannathConstruction and
entered into a contract with the Mathura-Vrindavan Development Authority,
Mathura to construct 656 numbers of 1 BHK Houses(four storey) at Rukmani
Vihar Vrindavanand during the course of the construction,some dispute arise
between the applicants with regard to
completion of work in the year 2016. the MVDA have allotted the same to the
allottees but the MVDA did not pay the remaining amount as well as the
security amount which has been deposited at the time of execution of the
contract.
The opposite party No.2 lodged an FIR against the Firm M/s. Jagannath
Construction as well as its contractors bearing case crime No.1140 of 2017
under Section 406 IPC at Police Station Vrindavan, District Mathura with the
allegation that the contractor is delaying in repairing of the constructed flats,
consequently, the MVDA could not able to allot 1 BHK flat to the allottees..
The sole Arbitrator found entitled to refund of the security amount of
Rs.1,38,58,557/-deducted from the running bills. at the rate of 14%per
annum of the amount of cash deposit and 7% on the FDR amount per annum
with effect from 15.06.2016. After completion of the investigation, the
charge sheet has been submitted by the Investigating Officer against the
applicants Section 406 IPC, Police Station Vrindavan, District Mathura arising
out of case crime No.1140 of 2017, Police Station Vrindavan, District Mathura
pending in the Court of Chief Judicial Magistrate, Mathura may also be stayed
during the pendency of the present criminal misc. application and/or pass
such other and further order which this Hon’ble Court may deem fit and
proper in the circumstances of the case.as well as another partner Abhi
Agrawal under Section 406 IPC and the same forwarded to the concerned
Court for taking cognizance against the applicants and Abhi Agrawal. it is
clear that the opposite party No.2 has lodged the First Information Report
againsthe applicants with malicious intention so that Courts, it is clear that
the applicants were not on fault and the applicants have not committed any
breach of trust to the opposite party No.2.
That the defence of the applicant is that he has been falsely implicated into
the matter for the purpose of causing harassment and humiliation to them
and the motive behind the same is to satisfy personal grudge and enmity
which the opposite party No.2 is having with him.That it is relevant to
mention here that there is no allegation against the applicants with regard to
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 willfully suffers any other person so to do,
commits “criminal breach of trust” That it is the settled law, in case the
breach of contract between the parties, the First Information Report is not
maintainable under Section 406 IPC by any of the parties.
That the impugned order dated 13.02.2019 passed by the Chief Judicial
Magistrate, Mathura is arbitrary unsustainable and without application of
judicial mind and, as such, the same is liable to be set aside by this
Hon'ble Court in exercise of the power conferred by Section 482 Cr.P.C.
That the impugned criminal proceeding has been deliberately and
maliciously instituted with an intention to harass and humiliate the
applicant and the motive behind the same is to satisfy personal grudge
and enmity which the opposite party No.2 .That the Investigating
Officer has committed a mistakein submitting the impugned charge
sheet against the applicant and similarly, the learned Magistrate has
passed the impugned order of taking cognizance without application of
mind as in the facts and circumstances of the case, the dispute is of
civil nature and no criminal offence whatsoever is made out.since the
impugned criminal proceeding is manifestly attained with malafide, the
same is liable to be quashed on the strength of the law enunciated in
the case of State of Haryana Vs. Bhajan Lal and Others reported in
1992 Supp. (1) SCC 335 so as to prevent abuse of the processof the
Court and to meet the ends of justice, in as muchas, the prosecution
story has been deliberately cooked upso as to satisfy personal
vengeance.
3. Critical analyze of 406 ipc
Section 406 IPC states punishment for committing criminal breach of trust.
The section states as, “Whoever commits criminal breach of trust shall be
punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both.”
The offence of criminal breach of trust is defined under section 405 of the
Indian Penal Code
According to the code, in order to constitute the offence of criminal breach of
trust, it must be proved that the accused was entrusted with the property or
with the dominating power over the property of some other person which he
dishonestly converted it to his own use.
In simple words, we can say that Criminal Breach of Trust occurs when
an offence is committed by the accused in the beneficial interest of the
property, by making or converting the property of some other person, for his
own use.
A relationship is formed between the transferor and transferee of the
property. In which the transferor remains the legal owner of the property, but
the transferee holds the custody or possession of the property for the benefit
of the transferor himself or some other person.
Section 406 Indian Penal Code provides punishment in case of any
breach of trust. Some major ingredients to constitute the offence Sec 406
IPC are as follows:
The accused must be entrusted with property or with the dominion
power over that property.
The person entrusted must dishonestly misappropriate or converted
the property for his own use.
The person entrusted dishonestly used or dispose of the property or
wilfully suffer any person to do so.
Here entrustment plays a major role in establishing the offence of criminal
breach of trust. If there is no entrustment, there can be
no offence under Sec. 406 Indian Penal Code. The term ‘entrustment’
means handing over the possession of a thing for some purpose.
Entrustment may be made in any manner. It is necessary that the accused
should receive the property and hold it on behalf of another person so that
he should be called as a trustee of the said property.
The act of committing criminal breach of trust should be done intentionally
and not by any accident or any coincidence. There must be entrustment,
conversion, or misappropriation to use one’s property. In these cases, every
payment in terms of money by one person to another does not amount to an
entrustment unless there are other circumstances.
The very common situation is of a married woman. It is no hard and fast rule
that once the woman enters her in-laws' house, the ownership
of stridhan becomes the joint property of her husband. It is t be understood
that the husband and his parents as the trustees of the property are bound
to return the same to the woman when demanded by her
The term of punishment for committing an offence of criminal breach of trust
is provided under IPC 406. The accused shall be liable to imprisonment for 3
years, or with fine or with both, as the case may be.
Criminal breach of trust is a non-bailable and cognizable offence, which is
triable by Magistrate of the first class. Also, this offence is compoundable by
the owner of the property in respect of which breach of trust has been
committed, with the permission of the court.
In context of civil disputes
Radheyshyam and Others v. State of Rajasthan and Another
The recent judgment on criminal breach of the trust states that the we can’t
file an FIR on the basis of civil dispute .so this petition was quash.
The Supreme Court ruled in the case of State of Gujarat vs. Jaswantlal
Nathalal (AIR 1968 SC 700) that the term “entrustment” implies that the
person who transfers any property or transfers it on their behalf remains the
property’s owner under Section 406 of IPC.
2. In Mohammed Sulaiman vs. Mohammed Ayub, the court claimed that
“According to Section 405 IPC, property must be used or disposed of in
violation of any express or implicit legal contract if something is done to it
that would suggest misappropriation, conversion, or misuse to establish an
offence under Section 406 of IPC. The terms of this section will not apply to a
simple civil dispute. The process begins with the aggrieved party filing a First
Information Report (FIR) at the nearest police station. The FIR provides a
preliminary account of the offense, detailing the nature of the breach, the
parties involved, and any other pertinent information.
Mandatory Registration: Given that Section 406 is a cognizable offense, the
police are obligated to register the FIR without any preliminary inquiry. The
Supreme Court of India has emphasized the mandatory registration of FIRs
for cognizable offenses to ensure prompt action. property or transfers it on
their behalf remains the property’s owner under Section 406 of IPC
Acknowledgment: Once the FIR is registered, the complainant receives a
copy of it. This serves as a formal acknowledgment and provides a reference
for future legal proceedings. The Process of Investigation and Trial: After the
FIR’s registration, the police initiate an investigation. This involves collecting
evidence, interviewing witnesses, and gathering any other information
relevant to the case. Given the cognizable nature of the offense, the police
can arrest the accused without a warrant during this phase Jaswantlal
Nathalal (AIR 1968 SC 700) that the term “entrustment” implies that the
person who transfers any property or transfers it on their behalf remains the
property’s owner under Section 406 of IPC.
.Charge Sheet: Upon completing the investigation, the police prepare a
charge sheet, which is a detailed report outlining the evidence and the
charges against the accused. This charge sheet is then submitted to the
court.
Trial: With the charge sheet submitted, the trial phase begins. The case is
presented before the Magistrate of the First Class. Both the prosecution and
the defense present their arguments, evidence, and witnesses. The
magistrate, after considering all the presented facts and evidence, delivers a
judgment.
Bail: Since Section 406 is a non-bailable offense, the accused cannot claim
bail as a right. The decision to grant or deny bail lies at the discretion of the
court. Factors considered include the gravity of the offense, the accused’s
past record, the potential risk of the accused influencing witnesses, and the
likelihood of the accused fleeing from justice.
Anticipatory Bail: If an individual apprehends arrest under Section 406, they
can apply for anticipatory bail. This is a provision where the court grants bail
in anticipation of an arrest. The application is made to the Sessions Court or
the High Court. The court, after considering the merits of the application, can
either grant anticipatory bail, ensuring the individual isn’t arrested, or deny
it.
In conclusion, the legal procedures associated with Section 406 are
comprehensive, ensuring that cases of criminal breach of trust are addressed
with the seriousness they warrant. From the filing of the FIR to the
culmination of the trial, each step is designed to uphold the principles of
justice and ensure that the aggrieved party receives redress, and the
accused is afforded a fair trial.
Wrapping up, Section 406 of the IPC is not just a legal provision; it’s a
reflection of the values and principles that Indian society holds dear. Trust,
as a cornerstone of relationships, is invaluable, and Section 406 ensures it
remains so.
