TMI Blog2015 (5) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of the complainant. The allegations in respect of one set of documents (i.e. serial Nos. 1 to 28 of the Schedule), the originals of which are still with their lawful custodians, do not constitute the offence of theft or dishonest misappropriation of property. But so far as the other set of documents is concerned, it cannot be held at this stage that no offence has been disclosed. From the petition of complaint, it is found that the complainant has specified the accused persons who have used these two sets. The movable properties, comprising of 54 documents which, it is alleged are subjects of the three substantive offences-theft, dishonest misappropriation of property and receiving stolen property are segregable. So far allegations pertaining to the documents specified against serial Nos. 1 to 28, the petition of complaint does not disclose the ingredients of the three aforesaid offences. But as regards allegations concerning documents specified against serial Nos. 29 to 54 are concerned, the petitioners' case is not sustainable. The petition of complaint discloses the ingredients of the offences alleged to have been committed in respect of this set of documents. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code of Criminal Procedure 1973 for enquiry and disposal. The matter was taken up for hearing again on 6th October, 2010, for examination under Section 200 of the 1973 Code. On that date initial deposition of one Samir Ganguly, representing the complainant was recorded. The learned Magistrate found that some of the accused persons were having their places of residence beyond the territorial jurisdiction of the Court and he opined that the matter required further enquiry under Section 202 of the 1973 Code. On 8th October, 2010, the case was taken up for enquiry under Section 202 of the 1973 Code. Another witness on behalf of the complainant, P.B. Dinesh was examined and his statement was recorded. The learned Magistrate observed in the order passed on that date that purpose of enquiry seem to have been meted out. Considering the affidavit filed by the complainant and the documents supplied and relied on by the complainant company in support of the case, the learned Magistrate found that sufficient grounds were there for proceeding against all the sixteen accused persons for commission of offences under Sections 380/411/120B of the IPC. Cognizance was taken again by the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated five mutual and reciprocal trusts to leave the estate covered by these trusts to charity as the remainder beneficiaries. These trusts appear to have been subsequently revoked. In the five suits, the petitioner Nos. 12 to 16, inter alia, complain against purported revocation of the five trusts. 5. So far as the complaint case giving rise to this proceeding is concerned, it has been alleged that in the company petition and the five suits, copies of altogether 54 documents pertaining to the company have been used without its consent. These documents include intra-company correspondence, internal audit reports, agreements etc; in relation to operations of the company. Basic case of the complainant is that these documents were stolen and/or dishonestly misappropriated from the company by the accused persons and converted the same to their own use. In the petition of complaint, a list of 54 documents with their brief description have been given in a schedule, over which the allegations of theft and dishonest misappropriation of property are founded. These documents can be divided mainly into two categories. One set, being item Nos. 2 to 28 in the schedule, are still in cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph 21 of the petition of complaint, in which it has been stated:- 21. It is submitted that accused No. 1 to 9 and 12 to 16 in conspiracy with each other and with accused Nos. 10 and 11 as well as other known and unknown persons have: a. Dishonestly and without the consent of the Company moved the property mentioned in paragraph 9 in order to take it out of the possession of the Company and have committed theft and conspiracy to commit theft. The accused persons have dishonestly received or retained stolen property knowing and having reason to believe the same to be stolen property and as such have committed the offence of dishonestly receiving stolen property. b. Dishonestly misappropriated and converted to their own use, movable property belonging to the Company and as such have committed an offence of dishonest misappropriation of property and conspiracy to commit such offence. 6. The manner in which the individual accused persons have been implicated in the petition of complaint appears from paragraphs 7 to 11 thereof, and it is stated in these paragraphs:- 7. Recently, i.e. on 11th March 2010 accused Nos. 1 to 5 and M/s. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed No. 9 affirmed an affidavit on behalf of accused No. 2. The accused Nos. 6 to 9 were involved in the process of preparation of the CLB Petition, which includes giving instruction to their Advocates, obtaining and/or collecting documents (including documents complained of), handing over such documents to the Advocate from their possession for the purpose of annexing the same. Hence, the accused Nos. 6 to 9 were all along aware of the nature and origin of the documents, which were confidential in nature and they were in possession of such documents only because of the criminal acts of the accused persons described in this complaint. 11. The said applications in the 5 suits were affirmed by the accused Nos. 12, 13 and 16 themselves and on behalf of the accused Nos. 14 and 15, applications were affirmed by their respective Constituted Attorneys. The accused Nos. 12 to 16 were also involved in the process of preparation of the said applications, which includes giving instruction to the Advocates, obtaining and/or collecting documents (including documents complained of), handing over such documents to the Advocate from their possession for the purpose of annexing the same. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . or a criminal complaint can be quashed at the threshold has been summarized in the said paragraph, i.e. paragraph 108 of this judgment in these terms;- In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is exercising effective control over the said estate illegally and the petition of complaint has been motivated by these factors. On the allegation that a mala fide or malicious complaint ought to be quashed, the judgments of the Supreme Court in the cases of Hira Lal Vs. State of U.P. Ors. [ (2009) 11 SCC 89], Sundar Babu Vs. State of Tamil Nadu [ (2009) 14 SCC 244], Baijnath Jha Vs. Sita Ram Anr. [ (2008) 8 SCC 77], Ramesh Dutta Ors. Vs. State of Punjab Ors. [(2010) 8 SCC 775], Punjab National Bank Ors. Vs. Surendra Prasad Sinha (AIR 1992 SC 1815). In all these cases, prayers for quashing of complaint or F.I.R. was sustained mainly with reference to circumstances specified in sub-paragraph (7) of paragraph 108 of the decision in the case of Bhajan Lal (supra). The Supreme Court found some fundamental flaw in the complaints/F.I.R.s. involved in all these cases. 10. In the case of Hira Lal (supra), after a complaint petition was dismissed by the learned Magistrate, a second complaint was filed on the same set of allegations. That complaint was quashed. In the case of Sundar Babu (supra), complaint under Section 498A of the IPC with Section 4 of the Dowry Prohibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent petition. In the petition of complaint, what has been alleged is that copies of certain documents belonging to the opposite party No. 1 have been used in certain legal proceedings by the accused persons, and by gaining access to these documents in an illegal manner, and having come in possession of copies thereof without consent of their lawful custodians, the accused persons have committed the offences of theft and dishonest misappropriation of property. In respect of documents itemized against serial Nos. 29 to 54, it has been specifically alleged in the complaint petition that after photocopying them, the documents have not been returned to the premises where they were kept, and those documents are still in possession of the accused persons. According to the complainant, copies of these documents were in possession of the accused persons who had instituted the legal proceedings, and accused No. 10 and 11 have been arraigned as they were in charge of the building, in which the documents were alleged to have had been kept in secrecy. There is allegation of criminal conspiracy against all the accused persons. No specific statement in this petition under section 482 of the 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued on the basis of the petition of complaint in an improper manner. Main contention of the petitioners in this regard is that the learned Magistrate did not satisfy himself as regards prima facie culpability of the accused persons individually and on that count, prayer has made before me in course of hearing for quashing the order by which process was issued I shall deal with this issue independently. Though commission of offences under four heads has been alleged against the petitioners/accused persons, I have been mainly addressed on the question as to whether the petition of complaint discloses commission of the offence of theft or not. The offences of theft and criminal misappropriation of property have certain common ingredients under the I.P.C., and I shall deal with the question of theft first. Theft has been defined in section 378 of the IPC which stipulates:- 378. Theft.--Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Explanation 1.--A thing so long as it is attached to the earth, not being movable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any person. A by taking it, commits no theft, though he may commit criminal misappropriation of property. (h) A sees a ring belonging to Z lying on a table in Z's house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring, commits theft. (i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop. A, not owing to the jeweller any debt for which the jeweller might lawfully detain the watch as a security, enters the shop openly, takes his watch by force out of Z's hand, and carries it away. Here A, though he may have committed criminal trespass and assault, has not committed theft, in as much as what he did was not done dishonestly. (j) If A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A takes the watch out of Z's possession, with the intention of depriving Z of the property as a security ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the complaint on the allegation of theft are threefold. It has been contended that documents which contain information do not have the attributes of property, and hence cannot be the subject of theft. It has been further urged that using the copies do not amount to theft of any property. A judgment of the Supreme Court of Canada, R. Vs. Stewarts reported in [(1988) 1 SCR 963] has been relied upon by the petitioners on this point, in which it has been held that confidential information is not property, and confidentiality cannot be the subject if theft. A US Supreme Court Judgment, Dowling Vs. United States [473 U.S. 207 (1985)] has also been referred to by the petitioners on the point that information cannot be subject of theft. The case of Dowling (supra) involved distribution of illegally produced records of the singer Elvis Presley's concerts and television shows. The appellant Dowling was charged of stealing, converting or taking by fraud these records under the National Stolen Property Act of the US. The relevant provision of the statute prohibited interstate or foreign transportation of goods beyond certain value by persons having knowledge that such goods were stolen, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate, since the Magistrate had formed opinion that there were grounds to presume that the accused had committed offence, and it could not be said that prosecution was false, frivolous or vexatious or one which was by way of abuse of process of law. As I have already indicated the scope of scrutiny of the complaint in this proceeding in the earlier part of this judgment, the ratio of this decision would be inapplicable in the facts of this case. In none of the authorities cited on behalf of the Opposite parties, the principle embodied in sub-paragraphs (1) and (3) of paragraph 108 of the Bhajan Lal's (supra) case has been held to have been abrogated. 15. Now I shall refer to the ingredients of the offence of theft as outlined in Section 378 of the IPC, for examining the question as to whether the petition of complaint discloses the offence of theft or not. In a full Bench judgment of this Court in the case of Queen Empress Vs. Sri Churn Kanungo [(1895) ILR 22 Cal 1017], the ingredients have been analyzed as:- (1) There must be an intention to take some moveable property, (2) The taking intended must be dishonest, (3) It must be from the poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal intent or is incapable of committing a penal offence. That question may require to be examined at the time of imposing sentence, but a criminal complaint cannot be quashed for the sole reason that some of the accused persons are corporate entities. It was also asserted on behalf of the petitioners that the petitioner Nos. 1 to 5 and the trust represented by the petitioner No. 6 are shareholders of the complainant company, and shareholders being owners of the company cannot be held liable for theft of the company's own property. Same argument has been advanced on behalf of the petitioner Nos. 7 to 9, being directors of the petitioner Nos. 1 to 5. I am unable to accept this argument. A company and its shareholders have distinct juridical entities, and a shareholder cannot appropriate all the properties of the company. The relationship of a company with its shareholders is guided by the Companies Act, and no provision of the said statute has been shown to me under which a shareholder, as owner of the company, can have ready access to all the documents of the company whatever be the purpose for obtaining such access. 18. The other aspect on which I was addressed was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced earlier in this judgment section 29 of the I.P.C. specifies:- 29. Document .- The word document denotes any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter. Explanation 1.- It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not. Illustrations A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document. A cheque upon a banker is a document. A power-of-attorney is a document. A map or plan which is intended to be used or which may be used as evidence, is a document. A writing containing directions or instructions is a document. Explanation 2.- whatever is expressed by means of letters, figures or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures or marks within the meaning of this section, although the same may not be ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablish the offences alleged against the petitioners. It was also submitted on behalf of the petitioners that the documents concerned had no pecuniary value, and there could be no question of wrongful gain or wrongful loss to any person, even assuming that there was actual removal of documents. 24. The offences of theft, dishonest misappropriation of property as also receiving stolen property, provided in Sections 378, 403 and 411 of the IPC have one common element, dishonest intention. I shall deal first with the argument of the petitioners as to whether use of copies of documents by them to expose alleged misdeeds of the complainant could, at this stage, held to be a legitimate act, not an act done dishonestly. Under the Code, an act done dishonestly refers to an act done with the intention of causing wrongful gain to one person or wrongful loss to another person. The four authorities relied upon on behalf of the petitioners to contend that the offence of theft was not made out against them touch on this point and coincidentally all these cases involve seizing of cattle and taking them to the pound. In the case of Jhaman Lal Ors. (supra), ten cattle were taken away by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 24 W.R. Cr. 7 that the loss refers to the thing dishonestly taken, which, in this case, would mean the animals themselves; and, it could not be contended that the owners were in any way deprived of them, except temporarily whilst they remained in the pound the last words of the clause referred to (s. 23), to which/the person losing it is legally entitled, show clearly what is meant by the words wrongful loss as applied to the owners of the cattle. A similar view that an illegal seizure of the cattle and taking them to the pound does not constitute theft was also held in 10 Cal W.N. ccxxviii. 3 26. The other authority relied upon by the petitioners on the same point is a judgment of the Supreme Court in the case of Ram Ratan (supra), in which the allegation against the appellants was commission of theft on illegal seizure of cattle from certain land of which the owner of the cattle was in possession. These cattle were also taken to the pound. In this decision, it has been held:- (23) Till the property is moved, no offence of theft can be committed even if the alleged offender had intended to take dishonestly the property out of the possession of any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cattle. He avoids the risk of further harm to himself and protects the interest of the owner by having the cattle in safe custody and keeping them from doing any further damage to anyone's land or crop. The owner can get back the cattle from the pound on payment of the fine and expenses in accordance with the provisions of S. 15 of the Act. Whatever he would have to pay for getting the cattle released, he can reimburse himself by suitable action under S. 20 of the Act, as the Magistrate dealing with his complaint is empowered under S. 22 to order the payment of fines and expenses paid by him in addition to the compensation for any loss that he suffers. The owner of the cattle illegally seized is thus not only reimbursed for the fine and expenses which he paid but also for any loss that he has suffered on account of illegal seizure. This means that in the ultimate analysis the owner of the cattle, seized illegally, suffers no loss and that therefore the act of illegal seizure of cattle does not cause any wrongful loss to the owner of the cattle. It follows that the person seizing cattle purporting to act under the provisions of the Act does not cause any wrongful loss to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lah 221; Paryag Rai v. Arju Mian, ILR 22 Cal 139; Queen Empress v. Sri Churn Chungo ILR 22 Cal 1017 (FB). In these cases seizure of cattle was not made even ostensibly on account of their causing, damage to any land or crop. They were seized and taken away by persons in order to get their claims against the owners satisfied, or in order to cause them loss otherwise. Such seizures of cattle, was rightly held to amount to 'theft. (29) On the other hand there are cases which held that no offence is committed by a person seizing cattle illegally. In Empress v. Ramjiawan, 1881 ALL WN 158 it was held that illegal seizure of cattle under the Act was not an offence of mischief under the Penal Code and, that the, remedy of the owner of the cattle was to be found in the provisions of ss. 20, 21 and (30) In Dayal v. Emperor, air 1943 Oudh 280 persons who had seized cattle from, a pound and impounded them in retaliation of the action of the owners of the cattle in justifiably impounding their cattle a day earlier, were held not to have committed the offence of mischief under S. 425, I.P.C. inasmuch as driving the cattle to the pound did not in any way lead to the diminut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrongful loss in the following terms:- 11. Wrongful gain is regarded as gain by unlawful means of property to which the person gaining is not legally entitled. Similarly, 'wrongful loss' is defined as the loss by unlawful means of property to which the person losing it is legally entitled. There is nothing peculiar about the expression 'dishonestly' employed in the I.P.C. All that is required to be proved in order to establish that the person doing the act was doing it dishonestly is, that by that act he is gaining by unlawful means of property to which he is not legally entitled to gain, or that any person is losing property by reason of that act which the person losing is legally entitled. The expression 'dishonestly' used in the I.P.C. should not be confused with the commonly used word 'dishonestly' which is understood to involve an element of fraud or deceit. In this case, under law, the only person who could keep the press in his possession is P.W. 1. By removing the press out of the possession of P.W. 1, the accused responsible for such removal were gaining by unlawful means, that is, by unlawfully breaking open the lock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case. 29. Two judgments of the Supreme Court, K.N. Mehra Vs. State of Rajasthan (AIR 1957 SC 926), State of Maharashtra Vs. V.T. Umale [(1979) 4 SCC] have also been cited on behalf of the Opposite Parties in support of their submission that even temporary dispossession of property can constitute theft. In the case of Pyare Lal Bhargava Vs. State of Rajasthan (AIR 1963 SC 1094), similar view was expressed by the Supreme Court. In that case, the appellant, who was a government official had taken a file from his office at the instance of a contractor. Certain documents were removed from the file, replaced by a letter. On the question if such removal of file amounted to theft or not, it was held:- To commit theft one need not take movable property permanently out of the possession of another with the intention not to return it to him. It would satisfy the definition if he took any movable property out of the possession of another person though he intended to return it later on. We cannot also agree with learned counsel that there is no wrongful loss in the present case. Wrongful loss is loss by unlawful means of property to which the person losing it is legally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de in the petition, it can be held that the petitioners did not intend to cause any wrongful gain or wrongful loss. To come to this conclusion, I will have to come to a finding that the petitioners did not gain by having the copies of the documents, to which they were not legally entitled. Alternatively, the company has not suffered any loss by unlawful means of the documents involved. 32. Contention of the petitioners, drawing analogy from the cattle-cases , is that taking copies of certain documents from the custody of the company to the Court of Law cannot be said to have caused gain by unlawful means to them or loss by unlawful means to the Opposite parties. In Aradhun Mundul (supra), these expressions were construed to imply loss refers to the thing dishonestly taken, which, in this case, would mean the animals themselves,.. . The relevant passage from this judgment has been quoted earlier in this judgement. Argument of the petitioners is that so far as the subject-documents are concerned, their value have not been impaired in any manner. 33. In the petition of complaint, the documents, the use of which is complained against can be categorized into two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Harvard H.T. aircraft in breach of all regulations and landed within the territory of Pakistan. They were, inter-alia, charged with the offence of theft. Their defence was that they had strayed off-course losing their way, and landed on a field in Pakistan. From there, they had contacted officials of the Indian High Commissioner. In answer to the charge of theft, their case was that there was no dishonest intention on their part. Their defence was not accepted by the Trial Court, the first Appellate Court as also the High Court on revision. In appeal, the Supreme Court held:- 10. The main contention of the learned counsel for the appellant, however, is that there is no proof in this case of any dishonest intention, much less of such an intention at the time when the flight was started. It is rightly pointed out that since the definition of theft requires that the moving of the property is to be in order to such taking, such meaning intending to take dishonestly , the very moving out must be with the dishonest intention. It is accordingly necessary to consider what dishonest intention consists of under the Indian Penal Code. Section 24 of the Code says that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the fact that it was for flight to a place in Pakistan. Learned counsel for the appellant has urged that the courts below have treated absence of consent as making out dishonesty and have not clearly appreciated that the two are distinct and essential constituents of the offence of theft. The true position, however, is that all the circumstances of the unauthorised flight justify the conclusion both as to the absence of consent and as to the unlawfulness of the means by which there has been a temporary gain or loss by the use of the aircraft. We are, therefore, satisfied that there has been both wrongful, gain to the appellant and wrongful loss to the Government. 35. In the judgment of K.N. Mehra (supra), importance has been accorded to the manner of acquisition of property, and the unauthorised use of such property itself has been held to be wrongful gain and the Government of India, being deprived of legitimate use of the aircraft during its retention by the accused cadets has been found to have suffered wrongful loss. On the basis of this ratio, it was argued that in the instant case, removal of the property from its lawful custodian itself was illegal, and no fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a further allegation that the property in question is missing from the custody of its custodian. One factual difference between the factual context of the four authorities pertaining to taking cattle to the pound and the decisions in the cases of K.N. Mehra (supra) and Pyare Lal Bhargava (supra) is that in the former genre of cases, cattle were eventually taken to a legitimate and neutral destination, being the pound and there was no allegation of any intermediate use, between the point of seizure and the pound. In the cases of K.N. Mehra (supra) and Pyare Lal Bhargava (supra), there was utilization of the subject of theft-the aircraft and the file. In this proceeding also, complaint is of utilization of the documents. Whether using such copies in a legal proceeding would constitute the offences of theft or misappropriation or not cannot be adjudged at this stage, as it is not possible to conclude that the petition of complaint does not disclose the ingredients of such offences. But this finding of mine shall remain confined to the allegations in relation to documents which are stated to be missing from their legitimate custodians. 37. As regards the other set of documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being paper in this case, without taking the document itself? Would such an act amount to removal of movable property? 39. No direct Indian authority has been cited by the learned counsel for the parties on this point. In the case of Pyare Lal Bhargava (supra), question arose in respect of temporary removal of a file, which was returned after replacing certain papers. But that was not a case of obtaining information contained in a document. Such act was held to be theft. On behalf of the petitioners, the decision of the US Supreme Court, Dowling (supra) and decision of the Supreme Court of Canada, R. vs. Stewart (supra) were cited. Learned counsel for the Opposite parties has relied on the English authority, (I.T.C. Film Distributors Ltd. Ors. Vs. Video Exchange Ltd. Ors.). Since all these decisions are from Courts of common law countries having the same or similar jurisprudential foundation, I think ratio of these authorities would be of assistance to this Court for determining this controversy. 40. In Dowling (supra), distribution of bootleg phonorecords containing copyright-protected materials were found by the Supreme Court of the United States not to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, I shall be confining my scrutiny to the question as to whether commission of such offence has been made out or not in the petition of complaint, as it stands. 43. Under Section 378 of the I.P.C., there must be intention to take any movable property out of possession of any person without that person's consent. That is the first requirement to attract the definition of theft. Secondly, such property must be moved in order to such taking. Even if the complaint petition is accepted as it is, it would reveal that the concerned petitioners have used the content of document Nos. 1 to 28, and the documents are admittedly lying where they ought to. The complainant is making out a case that the documents were removed for photocopying by the accused persons. No case has been made out in the petition of complaint that the information contained in the documents per se had any legally protectable feature fitting the characteristic of property. Theft has been complained of in relation to taking the property in the form of documents temporarily out of possession of the complainant. 44. As regards document Nos. 1 to 28, the ultimate taking has been in respect of their co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings. In the given context, removal of the documents, if at all, would be too trivial act to constitute any offence. Ordinarily, the principle embodied in Section 95 of the I.P.C., placing acts causing slight harm outside the ambit of specified offences would be set up as a defence. But in this case, having regard to the extraordinary nature of the allegations, this principle in my opinion can be applied to test as to whether the offence of theft has been committed or not. 45. On behalf of the Opposite Parties four examples were cited to demonstrate that a finding of this nature would lead to societal injury and would have disastrous consequence. The first illustration relates to abstraction of Board examination papers with the intention to copy and place them back. The second example was abstraction of a judgment of a Court before the same is delivered. Third example referred to was case diaries and content of investigation relating to a criminal offence. Fourth is the data stored in or displayed on a credit card. These are hypothetical situations and would have required examination if a specific case was brought in that context. But considering the unique features of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dealing with the subject controversy. I presume it is common experience for Judges, while dealing with a particular case, to introspect on consequences which a judgment might impact the society. The course which is normally adopted in the judicial decision making process is to filter out these thoughts and concentrate on the statutory provisions whose interpretation may be necessary, for determining a particular legal controversy, because in what manner a law would impact the society is within the domain of the legislature and the duty of the Court is to construe the law, which is validly enacted. 47. The thoughts which had crossed my mind and which I had to filter out while dealing with this case is that there has been significant disclosure of misdeeds in the society committed by persons in authority through leaked information, mainly by the media. Criminalizing such acts of disclosure might ultimately cause social harm. On behalf of the Opposite parties, however, it was rightly argued that in the event subsisting legislation outlaws such unauthorised access and disclosure, the Court cannot override such legislative acts on its own perception as to what would be good f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be not maintainable. 49. There is also allegation of criminal conspiracy against the petitioners. On this point it was argued on behalf of the petitioners that prior common concert or preplanning amongst the accused persons would have to be spelt out and nothing is on record to sustain meeting of minds to attract the provisions of criminal conspiracy. In this regard the provisions of Section 10 of the Evidence Act, 1872 was referred to and it was argued that unless overt acts in furtherance of the conspiracy are specifically alleged, case of criminal conspiracy cannot be sustained. 50. In support of this argument, the judgments of the Supreme Court in the cases of Lennart Schussler Anr. Vs. The Director of Enforcement Anr. (AIR 1970 SC 549), Neelu Chopra Vs. Bharti [ (2009) 10 SCC 184] and Ashok Chaturvedi Ors. Vs. Shitul H. Chanchani Anr. (AIR 1988 SC 2796) have been relied upon. It is also the case of the petitioners that since the documents were not meant to be used for any illegal object, there could not be any criminal conspiracy in obtaining them. The response of the Opposite parties on this point is that considering the stage at which the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by some of the conspirators. Even if some steps are resorted to by one or two-of the conspirators without the knowledge of the others it will not affect the culpability of those [ (1968) 2 S.C.R. 528]. 51. The argument made on behalf of the petitioners on this point, however, is interlinked with the main offences alleged to have been committed. Once, and if, case of commission of offences theft, dishonest misappropriation of property or dishonestly receiving stolen property is found to have been made out in the petition of complaint, I do not think in the facts of this case, the allegations pertaining to commission of the offence of criminal conspiracy can be isolated for ascertaining as to whether prayer for quashing the complaint of the Opposite party No. 1 in relation to this particular offence can be considered. It would not be possible for this Court to come to a final conclusion to the effect the said offence has not been committed, in relation to accused persons against whom, it is found that the petition of complaint discloses the offences under sections 379, 403 and 411. Examining the petition of complaint, if I proceed on the basis that the petition of complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the opposite party No. 1, on the other hand submitted that the Magistrate has followed the regular course and there was no error committed in issuing the process. On this point reference has been made to a judgment of this Court delivered in the case ICICI Bank Vs. Maikaal Fibres Limited Ors. [ (2006) 3 CHN 365]. In particular, reliance has been placed on the following passage of this judgment:- It would appear from the chain of allegations spelt out in the complaint together with the initial testimony of the witnesses that at least the foundation of the offences complained of is firmly laid--it is just not all frivolous and fanciful. There appears to be prima facie materials for the complainant for the satisfaction of the Court to set the wheel of criminal justice moving by issuing of the process and see to the end of the dispute by means of the trial on the basis of material evidence both parties may adduce. Conversely, to my mind, it cannot be said that, the allegations even taken on their 'face value' do not at all constitute the offence so as to nip the process in the bud. One wonders, if justice itself then becomes the casualty. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een accused persons. In that initial deposition, though the two witnesses did not repeat the entire set of allegations made against all the accused persons individually that factor by itself ought not to render the petition of complaint, invalid. I accept the proposition of law as outlined in the case of GHCL Employees Stock Option Trust Vs. India Infoline Limited (supra) that summoning of accused persons in a criminal case is a serious matter and criminal law cannot be set into motion as a matter of course. But none of the authorities cited by the petitioners lay down that the learned Magistrate ought to have analysed the petition of complaint deeper and at that stage the order should have been supported by elaborate reason on his decision to issue summons after conducting enquiry under Section 202 of the Code. On this point also various authorities were cited on behalf of the parties, but I do not consider it necessary to refer to those authorities as the principles laid down in those authorities have already been considered by me. I would also like to clarify that these observations of mine, as regards validity of the orders by which cognizance has been taken and process has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide that question. 57. I also find from the petition of complaint that the accused persons are also segregable - the unauthorised use of two sets of documents have been attributed to two separate groups of accused persons. The offence of criminal conspiracy has been alleged against all the accused persons. But the involvement of the individual accused persons in relation to allegations pertaining to these two categories of documents, on a plain reading of the petition of complaint, and in particular paragraphs 7 to 11 and 21 thereof appears to be segregable. The result of such segregation would be that the petition of complaint would not survive in respect of offences alleged in respect of documents specified against serial Nos. 1 to 28 of the schedule to the petition of complaint, whereas the case could progress so far allegations in relation to documents specified against serial Nos. 29 to 54 are concerned. The petition of complaint ought to fail against the accused persons who are found to be involved in using copies of documents itemized against serial Nos. 1 to 28 of the petition of complaint. 58. Accordingly, the orders passed on 6th October and 8th Octob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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