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TMI Blog2015 (5) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian Penal Code 1860 against the accused persons, for issue of process against them, and for their punishment in accordance with law. Six among the sixteen accused persons are corporate entities and the rest are natural persons. 2. The basic allegation of the complainant against the accused persons is in relation to use of copies of certain documents by them pertaining to the operations of the company in different legal proceedings instituted before this Court and the Company Law Board (CLB). The complaint's case is that these documents are confidential and meant to have been kept secret. Those documents, according to the complainant, were kept at the premises of the company, and were not meant to be accessed by the public at large. The accused persons, according to the petition of complaint, have committed the offences of theft and dishonest misappropriation of property and also dishonestly receiving stolen property by illegally obtaining the documents from the custody and control of the company. Before me, the petitioners are all the 16 persons arraigned as accused in the petition of complaint. On 4th October, 2010, the learned Chief Metropolitan Magistrate took cognizance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il 1999 which has given rise to a testamentary suit, which at present on the question of grant of letter of administration in respect of the estate forming the subject-matter of the said Will. Case of the propounder of the Will in that suit, which I am apprised, is pending in this Court, is that PDB had bequeathed her entire estate to one Rajendra Singh Lodha (since deceased), under the said Will. The Opposite Party No. 2 in this proceeding is the son of said Rajendra Singh Lodha. The complainant is one of the companies which belong to the M.P. Birla Group. The petitioner Nos. 1 to 5 and a trust, being Birla Education Trust represented by petitioner No. 6, had instituted a petition under Sections 397 and 398 of the Companies Act 1956 as shareholders of the company before the CLB alleging oppression and mismanagement in operation of the said company. This petition has been registered in the CLB as C.P. 1 of 2010. The petition before the CLB, as pleaded in the petition of complaint, has been filed through accused Nos. 6 to 9, who are petitioner Nos. 6 to 9 in this proceeding. Petitioner Nos. 12 to 16 in this petition have also instituted five different suits in this Court under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the copy of one of the original five sets, which was sent to one Bachh Raj Nahar, the Executive Director and Chief Executive Officer of the company. Before making the complaint, the complainant claims to have had conducted an internal enquiry to find out how these documents had reached the respective accused persons. The complainant, through its Advocate had written to the Advocate of the accused No. 1 to 6 (being the petitioner No. 1 to 6 in this petition) to disclose the source of documents and the complainant contends that it had received an evasive reply. It is also asserted by the complainant that in course of said proceedings also, originals of such documents were not disclosed and no disclosure was made as to how the accused persons received those documents. The complainant's claim is that accused Nos. 1 to 9 and 12 to 16 gained access to that report unauthorizedly and illegally with the aid of accused Nos. 10 and 11 (petitioner Nos. 10 and 11 in this proceeding). The accused No. 10 happens to be a company in charge of upkeep of the building in which the office of the complainant is situated, whereas the accused No. 11 is the Chief Executive Officer of that company. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he institution and contents of the said suits and the said applications and the pleadings used therein by its Chairman, Harsh Vardhan Lodha. 9. The Company was shocked to find that amongst the documents produced by the accused Nos. 1 to 5 and M/s. Birla Education Trust in support of the CLB Petition were documents listed in the Schedule to the present complaint. The Company was further shocked to find that in support of the said applications, copies of confidential documents mentioned in item No. 1 of the Schedule were utilized and annexed to the said applications by the accused Nos. 12 to 16. The Company submits that the said documents are highly confidential internal records and correspondence of Company and its officers. These documents were at all time kept inside the registered office of the Company at the said premises. These documents and the information contained therein is the property of Company over which no unauthorized person has any right. 10. In support of the CLB Petition, accused No. 6 affirmed an affidavit on behalf of M/s. Birla Education Trust; accused No. 7 affirmed an affidavit on behalf of accused Nos. 1, 4 and 5; accused No. 8 affirmed an affidavit on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opposite parties on the other. I shall accordingly refer to the submissions of the petitioners and those of the opposite parties compositely in this judgment, instead of dealing with submissions made on behalf of different petitioners and opposite parties in a piecemeal manner. 8. Main case of the petitioners is that the petition of complaint, as it has been framed does not disclose any offence and the complaint is mala fide, instituted with malicious intent with an ulterior motive for wreaking vengeance on the accused. On this count the principles enunciated by the Supreme Court in the case of State of Haryana Vs. Bhajan Lal (AIR 1992 SC 604) has been relied upon by the petitioners. Decisions of the Supreme Court in the cases of Shiva Nath Prasad & Anr. Vs. State of West Bengal [ (2006) 2 SCC 757], M. Mohan Vs. State [ (2011) 3 SCC 626] and A.K. Khosla Vs. T.S. Venkatesam [80 CC 81] have been referred to in support of their submission that the allegations made in the complaint are inherently improbable. In particular, my attention has been drawn to sub-paragraphs (1), (3), (5) and (7) of paragraph 108 of the report in the case of Bhajan Lal (supra). The circumstances under which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 9. It is also the case of the petitioners that the complainant and the Opposite Party No. 2 are trying to expand the scope of the testamentary suit by initiating the criminal case and perpetuate their control over the estate of PDB. On the question of the instant proceeding being tainted with mala fide intention or having been instituted with ulterior motive, quashing of the proceeding has been prayed for referring to sub-paragraphs (5) and (7) of paragraph 108 of the judgment in the case of Bhajan Lal (supra). The petitioners have alleged that the estate of MPB and PDB are now estimated to be worth over rupees twenty thousand crores and the Opposite Party No. 2 is clamming right to the said estate and is exercising effective control over the said estate il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d legal perspective of the individual proceedings. In this case also the propositions of law advanced on behalf of the opposing parties are founded on the principles laid down by the Supreme Court in sub-paragraphs (1), (3), (5) and (7) of paragraph 108 of the report in the case of Bhajan Lal (supra). The charge of mala fide and vengeance attributed to the complainant are primarily based on allegations made in the proceedings pending in different fora, and the petitioners contend that the complaint case has been instituted with mala fide motive as counterblast to those proceedings. I have been informed by the learned counsel appearing for the parties that the core issues raised in those proceedings are yet to be finally determined. Thus, mala fide or malicious motive cannot be attributed to the complainant solely on the basis of allegations made against them in those proceedings. In this petition, it would also be impermissible to examine the claim of the petitioners on the aspect of unauthorized control of the estate of the PDB by the opposite party No. 2. That would constitute going beyond the scope of the present petition. In the petition of complaint, what has been alleged is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused, it was argued that they are eminent persons and allegations of commission of offences of this nature ought to be rejected outright against them. But in the event the complaint discloses commission of offences, alleged to have been committed, which includes allegation of criminal conspiracy, in the facts of this case, I do not think the allegations against the petitioners can be held to be so outlandish that the same ought to be quashed on the grounds of being mala fide or absurd at this stage of the proceeding itself. The authorities cited on behalf of the petitioners on these two grounds, relatable to the principles incorporated in sub-paragraphs (5) and (7) of paragraph 108 of Bhajan Lal's case cannot be made applicable in the factual context of this petition. The petitioners' case would have to be tested in the light of the principles formulated in sub-paragraphs (1) and (3) of paragraph 108 of the report. 12. The other point on which substantial argument has been advanced on behalf of the petitioners is on the aspect of issue of process. It has been submitted that process was issued on the basis of the petition of complaint in an improper manner. Main cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... theft as soon as Z's dog has begun to follow A. (c) A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction, in order that he may dishonestly take the treasure. As soon as the bullock begins to move, A has committed theft of the treasure. (d) A, being Z's servant, and entrusted by Z with the care of Z's plate, dishonestly runs away with the plate, without Z's consent. A has committed theft. (e) Z, going on a journey, entrusts his plate to A, the keeper of the warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z's possession. It could not therefore be taken out of Z's possession, and A has not committed theft, though he may have committed criminal breach of trust. (f) A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z's possession, and if A dishonestly removes it, A commits theft. (g) A finds a ring lying on the highroad, not in the possession of 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give. If A takes the property dishonestly, he commits theft. (p) A, in good faith, believing property belonging to Z to be A's own property, takes that property out of B's possession. Here, as A does not take dishonestly, he does not commit theft." 13. First submission of the petitioners on this issue is mere reliance on copies of certain documents pertaining to a company in a Court of law to establish illegal acts on the part of that company would not constitute theft of those documents even if those documents are accessed and copies thereof are obtained illegally. The judgments relied on in support of this submission are Ram Ratan Vs. The State of Bihar & Anr. (AIR 1965 SC 926), Aradhun Mundul Vs. Myan Khan Takadgeer & Anr. [(1875) XXIV CWR 07], Jhaman Lal & Ors. Vs. The Emperor [10 CWN CCXXVIII] and Dayal & Ors. Vs. Emperor (A. 1943 Oudh 280). Additional submissions of the petitioners based on which the petitioners want quashing of 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kishan Rohatgi [(1983) 1 SCC 1], Bhaskar Lal Sharma Vs. Monica [ (2014) 3 SCC 383]. In the case of Shiva Nath Prasad (supra), which proceeding was also an offshoot of the core dispute giving rise to the subject-complaint, the Supreme Court declined to interfere with a judgment of this Court rejecting the plea of quashing of a complaint case alleging commission of offences under Sections 406, 420, 417 and 201 of the I.P.C. on the ground of mala fide. On behalf of the opposite parties, the case of State Vs. Manmohan ( A. 1986 SC 1652) was also relied upon. This was a case in which the High Court had quashed the charge framed by the learned Magistrate in relation to offence for contravention of Section 4(1) of the Sugar (Packing and Marking) Order, 1970, punishable under Section 3 read with Section 7 of the Essential Commodities Act, 1955. The Supreme Court opined that the High Court ought not to have quashed the charge framed by the Magistrate, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al with two peripheral points which have also been argued by the learned counsel for the opposing parties. On behalf of the petitioners, it was submitted that five accused persons were corporations, and they could not be accused of committing the offence of theft. It was also submitted that the petitioner Nos. 6 to 9 are well-known persons in the corporate world, and it would be absurd to believe that they could enter into the premises of the Opposite Party No. 2 to remove any property. But having regard to the ratio of the decision of the Supreme Court of India in the case of Iridium India Telecom Ltd. Vs. Motorola Incorporated & Ors. [(2011) 1 SCC 74], I do not think at this stage the complaint can be quashed as against the accused persons who are incorporated companies. It is not an absolute proposition of law that a body corporate cannot have criminal 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition of complaint. The substance of the complaint in relation to conspiracy has been outlined in paragraph 21 of the complaint petition, which has been reproduced in the earlier part of this judgment. 20. But before I deal with the submissions advanced on behalf of the parties on criminal conspiracy, I shall examine the primary question involved in this proceeding - whether the petition of complaint on the face of it discloses commission of offence of theft or dishonest misappropriation of property or not. 21. The first question that needs to be addressed for this purpose is as to whether documents come within the ambit of the expression 'movable property' or not. In the I.P.C., these two terms have been separately defined, in Sections 24 and 29 respectively. The definition of movable property has been reproduced 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vate business, in their relation to the facts of the particular case. Illustrations The Court may presume- (a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;" 23. The petitioners' case in this petition is founded on two main planks. First is that use of copies of certain documents for assistance of the Court to expose fraudulent activities and breach of trust by the holder of the property cannot be dishonest intention. The second plank of the petitioners' case is, in substance, corollary to the first - and that is using copies of documents do not establish 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has been suggested that the applicants were guilty of the offence of theft. I do not agree. The essential element of taking property dishonestly, as contemplated by S. 378, Penal code, is lacking in this case. Section 24 says that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'. Obviously, there was no wrongful gain to the applicants in the driving of the cattle to the pound, nor can it be said that any wrongful loss was caused to the owners of the cattle even though they would have had to incur expense in order to get the cattle released. It was held 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e being, it being not necessary that the deprivation of property be of a permanent character. We do not think that in such circumstances, the owner of the cattle can be said to be deprived of his property. The person seizing the cattle can act in either of these three ways. He can keep them himself. This may, in certain circumstances, make him guilty of theft. He can let them loose after taking them out of the field. This action will not remove the danger of the cattle trespassing again on the land. He can take them to the pound. In so doing he not only acts as directed by the Act but also in the interests of both himself and the owner of 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever mistaken he may be about his right to that land or crop. The remedy of the owner of the cattle so seized is to take action under S. 20 of the Act. He has no right to use force to rescue the cattle so seized. (28) We may now briefly consider the cases referred to in support of the contention that illegal seizure of cattle amounts to theft. These cases were not of the seizure and impounding of cattle in, the purported exercise of the powers under s. 10 of the Act. They are: Queen v. Preonath Banerjee; 5 Suth WR 68 (Cr); Wazuddi v. Rahimuddi, 18 Cri LJ 849: (AIR 1918 Cal 701 (2); Abdul Khaliq v. Emperor, AIR 1941 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. Ramj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show an intention to take dishonestly the property out of any person's possession without his consent, and that it was moved for that purpose. If the dishonest intention, the absence of consent, and the moving are established, the offence will be complete, however temporary may have been the proposed retention." 28. This view was also accepted by the Patna High Court in the case of Budhan Singh Vs. State (AIR 1960 Pat 518). In Lakshminarayana Vs. Appa Rao (AIR 1959 AP 530), the Andhra Pradesh High Court explained the implication of the expressions "wrongful gain" and "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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on who bona fide believes that the fountain pen on his neighbor's desk is his has no right in law to trespass into the neighbour's house & snatch away the pen without the latter's consent. The offence or theft is essentially against the possession of another of the movable property involved. The accused are thus clearly guilty of the offence charged against them and the learned Sessions Judge was completely wrong in allowing himself to be digressed by considerations which are totally inadmissible and irrelevant in the disposal of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishing certain misdeeds of the company before the legal forum, I shall examine the case of the petitioners from this perspective now. It is also to be noted that the authorities cited by the respective parties relate to judgments delivered in case where trial was concluded, except the case of V.T. Umale & Ors. (supra), and in this proceeding, the petitioners have come after issue of process, with prayer for quashing the petition of complaint. Thus, it has to be decided as to whether on the face of statements made 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 Arad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Pasmore & Ors. [(1934) 2 K.B. 164] was also referred to on behalf of the Opposite parties to contend that initial entry may be lawful in a particular situation, but the same could become illegal later on, if any unauthorised act is committed upon entry. As a proposition of law, I accept the principle laid down in Elias (supra), but in this judgment I do not consider it necessary to apply this principle. In the case of K.N. Mehra (supra), two cadets of the Indian Air force had flown 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight has in fact given the appellant the temporary use of the aircraft for his own purpose and has temporarily deprived the owner of the aircraft, viz., the Government, of its legitimate use for its purposes, i.e., the use of this Harvard aircraft for the Indian Air Force Squadron that day. Such use being unauthorised and against all the regulations of aircraft-flying was clearly a gain or loss by unlawful means. Further, the unlawful aspect is emphasised 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss Act, 1871, and by taking the cattle to the pound, the accused only acted as directed by the 1871 Act. The provisions of the 1871 Act also provided for payment of compensation, and the owner of the cattle could recover the loss. The position, however, would be different in respect of movable property in respect of which allegation is of taking them without the consent of the owner and using copies of the same in a legal proceeding, with 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, then such matter only upon being inscribed, in this case on paper, would assume the character of document. If that document is taken away by somebody dishonestly without the consent of its owner or lawful custodian, that would constitute theft. But what would be the consequence if someone lifts the content of the document, i.e. the matter-rendered in letters, figures or marks from the substance, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The complainant's case, however, is that the accused persons had removed the documents, and after making copies of the same, the documents in original were returned. The allegations of commission of the offences is anchored on such temporary removal. Petitioners on the other hand contend that such allegations are absurd, but as I have already observed, in this case, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of obtaining the information. This would be akin to lifting a flower from a vase, in a situation where the vase may belong to a person but the flower is free for taking. Lifting of the vase in such a situation for taking the flower would not be the subject of taking, but incidental to taking of flowers, the latter being without any proprietary trappings. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of R. Vs. Leatham [(1861) 8 Cox CC 498], making illegally obtained evidence admissible, barring certain limitations. 46. Since I have dealt with certain hypothetical situations raised by the Opposite parties while resisting this petition, I would also like to express in this judgment certain thoughts which crossed my mind while 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no movable property transferred by theft, there cannot be any dishonest receiving or retention of any stolen property. But so far the documents in respect of which allegation is that they are missing from their ordinary places of storage, petition of complaint under Sections 403 and 411 of the I.P.C. cannot be held 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy even though there may be sometimes misfire or over-shooting 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 offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lvement of the individual accused persons in commission of the alleged offences. Further case of the accused persons is that the witnesses also did not make specific allegations against commission of specific acts by the accused persons. 53. Learned 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. Converse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 and 8th October 2010 that along with the affidavit, the learned Magistrate perused the documents of the complainant and on consideration of all these factors, he found sufficient ground to issue process against the sixteen 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 pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and against whom no further step ought to be taken. Learned Magistrate is vested with the power and jurisdiction to pass orders in that regard, and it would be improper on my part to assume jurisdiction and 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 pers ..... 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