1988 P Cr (PLP)

Ch. Irshadullah Chattha for Petitioner. Syed Ahmad Tirmizi for the State. This is an application for grant of pre‑arrest bail to Muhammad Hussain petitioner in case under section 420/406, P.P.C. registered at Police Station Ahmad Nagar vide F.I.R. No. 122, dated 14‑9‑1987.

2. The prosecution case is that the petitioner induced Tanvir Ahmed, complainant to get his tape‑recorder repaired from Muhammad Ramzan co‑accused. Pursuant to the inducement, Tanvir Ahmed delivered his tape‑recorder to the petitioner but the tape‑recorder was not returned. On inquiry, the complainant came to know that the petitioner and Muhammad Ramzan in collaboration with each other had misappropriated the tape‑recorder.

3. Learned counsel for the petitioner submitted that the allegations against the petitioner are false; that the petitioner had honestly obtained tape‑recorder from the complainant and had given the same to Muhammad Ramzan for repairing but the latter dishonestly took away the same and is also not traceable. Learned counsel for the State assisted by the learned counsel for the complainant has opposed this application. He maintained that the petitioner after having deceitfully obtained the tape‑recorder, has criminally misappropriated the same in connivance with Muhammad Ramzan, Mechanic.

4. I have considered the submissions made by the learned counsel for the parties with care. The question for consideration is as to whether the petitioner who, according to the allegations contained in the F.I.R., had deceitfully obtained tape‑recorder from the complainant can, simultaneously be prosecuted on the charge of criminal breach of trust/criminal misappropriation in respect of the same property. The relevant provisions of law may be reproduced conveniently. Section 405 "Whoever, being in any manner entrusted with property, or with any dominion over property, 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 wilfully suffers any other person so to do, commits 'criminal breach of trust'. " Section 415 "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person or any person in body, mind, reputation or property, is said to 'cheat'. An examination of the aforesaid provisions of law reveals that an accused person cannot be prosecuted and punished simultaneously under sections 406 and 420, P.P.C. for the reason that in case of criminal breach of trust/criminal misappropriation, the aggrieved person voluntarily delivers the property to the accused whereas in case of cheating, he is deceitfully induced by the accused to part with the property. The aforesaid situations cannot reconcile. In case of cheating the accused is supposed to be dishonest from the very beginning and in case of criminal breach of trust, the accused is supposed to become dishonest subsequent to the entrustment of property to him. It, therefore, becomes abundantly clear that commencement, location and distinctions of mens rea for offence of cheating punishable under section 420 and criminal misappropriation punishable under section 406, P.P.C. are entirely different. In the instant case, the property was dishonestly obtained by the petitioner from the complainant and was not entrusted to him. Therefore, the petitioner cannot be prosecuted and punished simultaneously under sections 406 and 420, P.P.C. I feel that section 406, P.P.C. has dishonestly been added by the police in the F.I.R. in order to make it a non‑bailable case.

6. For what has been said above, the interim bail granted to the petitioner on 20‑2‑1988 is confirmed.

7. Before parting with the judgment, I feel constrained to observe that I have noted with dismay the tendency and trend of the police authorities to add section 406, P.P.C. in cases which wholly and solely fall within the ambit of section 420, P.P.C. and this is being done to deprive the citizens of the right of their bail under section'. 420, P.P.C. and to arrest them in a bailable crime on the pretext of section 406, P.P.C. A copy of this order will be sent to the Inspector‑General of Police, Punjab for information and necessary action. M.Y.H./M‑730/L Interim bail confirmed.