Gujarat High Court
Thakarshibhai @ Tusharbhai Khetabhai ... vs State Of Gujarat & on 24 January, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/3439/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3439 of 2013
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THAKARSHIBHAI @ TUSHARBHAI KHETABHAI RABARI & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR P P MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 - 2
MS NISHA THAKORE, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 24/01/2017
ORAL ORDER
1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant-original accused have prayed for the following reliefs:
"(A) Your Lordships may be pleased to quash and set aside F.I.R. being C.R. No.I-64 of 2013 registered at Vav Police Station, Dist. Banaskantha (at ANNEXURE-A hereto) as well as all other consequential proceedings arising out of the aforesaid F.I.R.;
(B) During pendency and final disposal of the present petition, Your Lordships may be pleased to stay further proceedings/investigation of F.I.R. being C.R. No.I-64 of 2013 registered at Vav Police Station, Dist. Banaskantha (at ANNEXURE-A hereto);
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;"
2. On 26.11.2013, the following order was passed:
Page 1 of 5HC-NIC Page 1 of 5 Created On Wed Jan 25 01:39:50 IST 2017 R/SCR.A/3439/2013 ORDER "Rule. Mr.K.P. Raval, learned APP waives service of Rule on behalf of respondent No.1 State.
Considering the fact that immediately preceding the time of the complaint in question, on the same day petitioner No.1 had lodged a complaint against the brother of respondent No.2 and considering the allegation that the complaint in question is a counterblast to the aforesaid complaint, adinterim relief restraining respondent No.1 from taking coercive steps against the petitioners during the pendency of the investigation is granted till 10.12.2013.
Returnable date of the notice as to interim relief against respondent No.2 is extended till 10.12.2013.
Direct Service is permitted."
3. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that even if the entire case put up by the first informant is believed or accepted to be true, none of the ingredients to constitute offence of robbery punishable under Section 392 of the IPC are spelt out. Prima-facie it appears that, on the date of the incident an altercation took place between the applicants and the first informant which resulted in fisticuffs as alleged. Ultimately in the last paragraph of the FIR, it has been alleged that the applicant no.1 herein took away Rs.1250 from the pocket of the shirt of the first informant. This is according to the Investigating Officer would amount to robbery.
4. What constitutes robbery has been explained by this Court in the case of Dharmendrabhai Nandubhai Patel & Anr. V/s. State of Gujarat, reported in 2011 (3) G.L.H. 379 Page 2 of 5 HC-NIC Page 2 of 5 Created On Wed Jan 25 01:39:50 IST 2017 R/SCR.A/3439/2013 ORDER "21. Now, in this background of the entire prosecution case and the evidence on record, can it be said that the common object of the unlawful assembly was to commit an offence of dacoity. Can it be said that the motive behind the crime was commission of dacoity or whether the common object of the unlawful assembly was to thrash the first informant for the reason that he developed intimacy with Gitaben and got married with Gitaben surreptitiously without seeking any permission from the family members of Gitaben. This is the core issue which, prima facie, needs to be considered in the appeal. However, prima facie, I am of the view that without going much into appreciation of evidence the conviction under Sections 395 and 397 appears to be unsustainable. I am of the view that the Court owes a duty to consider, as to whether the accused has a fair chance of succeeding in the appeal or not ? I may consider my prima facie opinion in light of what has been explained by the Division Bench of this High Court so far as Section 390 of IPC is concerned. The Division Bench of this High Court, in the case of Himatsing Shivsing v. The State of Gujarat, reported in 1961 GLR 678, has observed as under:-
Theft amounts to 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to 'robbery', the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft hurt etc., had been caused.
If hurt etc., is caused at the time of the commission of the theft but for an object other than the one referred to in sec.390, I.P.Code, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft. The three ingredients mentioned in sec.390, I.P.Code, must always be satisfied before theft can amount to robbery, and this has been explained in Bishambhar Nath v. Emperor, A.I.R. 1941 Oudh, 476, in the following words:-
The words "for that end" in sec.390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that Page 3 of 5 HC-NIC Page 3 of 5 Created On Wed Jan 25 01:39:50 IST 2017 R/SCR.A/3439/2013 ORDER the assault or the hurt must be caused in the same transaction or in the same circumstances.
In Karuppa Gounden v. Emperor, A.I.R. 1918 Madras 321, which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi Manjhi, 5 C.W.N. 372, and Kind Emperor v. Mathura Thakur, 6 C.W.N. 72, it has been observed at page 824 as follows :
Now it is our duty to give effect to the words "for that end". It would have been open to the legislature to have used other words which would not raise the difficulty that arises here. The Public Prosecutor has been forced to argue that "for that end" must be read as meaning 'in those circumstances'. In my opinion we cannot do that in construing a section in the Penal Code. Undoubtedly, words 'in those circumstances' would widen the application of the section and we are not permitted to do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as Otaruddi Manjhi v.Kafiluddi Manjhi 5 C.W.N.
372. Their Lordships put the question in this way:
It seems to us that the whole question turns upon the words "for that end". Was any hurt or fear of instant hurt, that was caused in the present case, caused for the end of the commission of the theft ? We think not. It seems to us that whatever violence was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had no relation to the commission of theft, although theft was committed at the same time.
The language used in another case reported as King Emperor v. Mathura Thakur, 6 C.W.N. 72, is as follows :-
The question here arises whether Mathura Thakur when he attacked Soman Dhania, did so for the end referred to, namely, for the purpose of carrying away the paddy, which had been harvested.
Those judgments in my opinion state the obvious intention of the section and we are bound to give effect to it and I, therefore, follow the decisions in those two cases.
22. In the last paragraph of the judgment, the Division Bench observed as under:-
Ordinarily, if violence or hurt etc. is caused at the time of theft, it would be reasonable to infer that violence or hurt was caused for facilitating the commission of theft or for facilitating the carrying away of the property stolen or for facilitating the attempt to do so. But, there may be something in the evidence to show that hurt or violence was caused not for this purpose but for a different purpose."
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R/SCR.A/3439/2013 ORDER
5. In the result, this application is partly allowed. The First Information Report as regards Section 392 of the IPC is quashed. It shall be open for the Investigating Officer to complete the investigation as regards the other offence if made out. I am told that the applicants herein have not been arrested so far, since I am disposing of this application. The interim protection earlier granted that also come to an end. If the applicants are apprehending arrest, it shall be open for them to file anticipatory bail before the court concerned. If any such application is filed, the court concerned shall consider the same in accordance with law.
6. With the above, this application is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) ABHISHEK Page 5 of 5 HC-NIC Page 5 of 5 Created On Wed Jan 25 01:39:50 IST 2017