*1* 939crwp1224o21 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 1224 OF 2021 YASHWANT BANSIDAR SHINDE VERSUS THE STATE OF MAHARASHTRA AND SAU. PRATIKSHA PURUSHOTTAMRAO ANDURKAR ... Shri Shinde Shrikishan S., Advocate for the Petitioner. Shri V.M. Lomte, APP for Respondent No.1. Shri Vishal A. Bagal, Advocate for Respondent No.2. ... CORAM : SUSHIL M. GHODESWAR, J. DATE : 04 December 2025 P. C. :- 1. The petitioner, who is practicing advocate at Beed, filed the instant Writ Petition challenging the order dated 27.01.2021 passed by the learned Judicial Magistrate First Class, Beed, below exhibit 14 in RCC No.232/2019 and also the order dated 22.09.2021 passed by the learned Sessions Judge, Beed, in Criminal Revision No.17/2021. Vide the order dated 22.09.2021, the learned Sessions Judge rejected the revision petition filed by the petitioner challenging the order dated 27.01.2021 passed by the learned JMFC rejecting the discharge application. 2025:BHC-AUG:33743 *2* 939crwp1224o21 2. As per the prosecution, respondent No.2/ complainant lodged FIR bearing Crime No.0822/2018 on 21.12.2018 with Shivajinagar Police Station, Beed, for the offence punishable under Section 380 of the Indian Penal Code stating therein that she is working as Stenographer at Civil Court, Junior Division, Beed. On 20.12.2018, respondent No.2 was having personal pendrive and various data pertaining to the Court work was stored in the said pendrive. Price of pendrive was Rs.400/-. She kept the said pendrive on her table and had gone to washroom. After returning from washroom, she did not find her pendrive. Since pendrive was lost, she filed the said report, which came to be registered as said Crime No.822/2018. 3. In pursuance of registration of the said crime, investigation was carried out by the police. The spot panchanama was also carried out. However, the pendrive came to be subsequently seized from the petitioner. The statements of police personnel, who seized the pendrive from the petitioner, came to be recorded. According to the prosecution, as per CCTV footage recorded in the CCTVs installed in the court premises, the present petitioner was found to be leaving the court room at that *3* 939crwp1224o21 particular point of time and upon enquiry about the said pendrive, the present petitioner appears to have handed over the said pendrive. According to the statemnents of police personnel, the pendrive, which is lost, is found with the petitioner. After completion of investigation, the police have filed the charge- sheet. Thereafter, the petitioner has preferred the discharge application and after its rejection, as stated earlier, journey of litigation came upto this Court. 4. Learned advocate for the petitioner submits that the order passed by both the Courts below are patently illegal. Both the courts below have failed to appreciate the issues involved in this matter. Learned advocate has taken me through the entire documents placed on record and submitted that apart from similar statements of the police personnel, there is no statement of any independent witness to substantiate the allegation against the petitioner. Learned advocate submits that after perusal of the entire charge-sheet, it is revealed that there is no intention of the petitioner to steal the pendrive. Nowadays, the pendrive is being used by every advocate and in the pendrive, which is seized from the petitioner, there is no data found which was allegedly stored *4* 939crwp1224o21 by the complainant. Therefore, at no stretch of imagination, it can be said that the petitioner has committed theft of the pendrive. Mere recovery, without proof of dishonest intention, does not constitute theft. As such, both the Courts below have committed error in rejecting the discharge application. Learned advocate, therefore, prayed for allowing this petition. 5. Per contra, learned APP as well as learned advocate for respondent No.2/ complainant vehemently opposed this petition. According to them, the petitioner was found to be leaving the court room in CCTV footage at the time of incident. Therefore, both the Courts below have rightly rejected the discharge application. As such, the impugned orders are proper and legal. No interference is required in the impugned orders. The present Writ Petition is, therefore, liable to be dismissed. 6. After having heard the learned advocates for the respective parties and with their assistance, after having perused the evidence on record as well as the impugned orders, one important aspect, which is required to be considered in this matter, is as to whether, there is guilty mind of the petitioner. In the entire charge-sheet, no mens rea is found as to why the *5* 939crwp1224o21 petitioner may steal or may commit theft of the pendrive. Criminal liability requires both guilty act and guilty mental state. The principle ‘actus non facit reum, nisi mens sit rea’ applies in this case which means an act does not make a person guilty unless the mind is also guilty. The pendrive is common object, which is being used by the advocates and they carry pendrive with them for the purpose of their professional work. Apart from any other incriminating material, it is very difficult to assume that it is only the petitioner, who has committed theft and no other person is involved in the crime. Moreover, the seized pendrive does not contain the data as stored by respondent No.2/ complainant. There is no statement of independent witness on record and only statements of police personnel are on record, which are similar in nature. 7. At the stage of discharge, the Court must evaluate whether the material on record, even if taken at face value, discloses a grave suspicion against the accused. In the present case, even if the entire prosecution case is accepted, the absence of any independent witness, absence of exclusive possession, and absence of dishonest intention, collectively negate even a prima *6* 939crwp1224o21 facie case. In such circumstances, ongoing prosecution against the petitioner is nothing but an abuse of process of law. However, both the Courts below have committed error in passing the impugned orders. 8. For the aforesaid reasons, the Writ Petition is allowed. Both the impugned orders are set aside. kps ( SUSHIL M. GHODESWAR, J. )