Orissa High Court
Kotta Gopinarayan Choudhary vs State Of Orissa on 28 March, 2003
Equivalent citations: 2003CRILJ4050, 2003(I)OLR494
Author: L. Mohapatra
Bench: L. Mohapatra
ORDER L. Mohapatra, J.
1. This revision has been filed against the order dated 3-3-2003 passed by the learned Assistant Sessions Judge, Bhubaneswar in S. T. 1/31 of 2003 framing charge for commission of offences under Sections 457, 380, 120-B, 411, 413, 414, 109 of the Penal Code.
2. The case of the. prosecution is that on 5/6-11-2001 the accused Santosh Das alias Prakash Sahoo alias Pattanaik entered into the temple of Lord LingaraJ premises by scaling over the boundary wall from the Western side, broke open the locks of Dakhinaghar, Dakhinadwara of main temple, Bhandarghart Sivakali Temple, Kasiviswanath Temple, Parvati Temple, Bhubaneswari Temple and committed theft of gold and silver ornaments and sold the same to the present petitioner who received the same with the knowledge that the ornaments had been stolen. On completion of investigation, charge-sheet was submitted for commission of offences under Sections 457, 360, 120-B, 411, 413, 109, 414 of the Penal Code, After commitment, charge has been framed as stated earlier,
3. Shri Panda, the learned counsel appearing for the petitioner submits that charge cannot be framed for commission of offences under Sections 411 and 413 simultaneously. So long as offence under Section 411 is not proved, no charge under Section 413 can be framed, Reliance is placed by the learned counsel on a decision in the case of Queen-Empress v. Baburam Kansari, reported in (1891) ILR 19 Cal 190. The learned Additional Standing Counsel referring to Section 413 of the Penal Code submits that if the accused is found to be a habitual receiver of stolen goods, charge under Section 413 can be framed and in the present case there are materials to show that the petitioner was receiving stolen articles as a matter of habit.
Section 411 and Section 413 of the Penal Code are quoted below :--
" 411. Dishonestly receiving stolen property - whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
"413. Habitually dealing in stolen property - Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
4. Bare perusal of both the sections indicate that while Section 411 prescribes a punishment for dishonestly receiving stolen property knowing the same or having reason to believe the same to be stolen property. Section 413 prescribes a punishment for an accused who habitually receives or deals in property which he knows or has reason to believe to be stolen property, One act of receiving stolen property knowing the same to be stolen property can attract Section 411 of the Penal Code, whereas a person who receives stolen property habitually or deals in such property, knowing or having reason to believe that the property id stolen property can be punished under s. 413 of the Penal Code, So far as the question as to whether a person can be charged simultaneously for commission of offences under Sections 411 and 413 of the Penal Code is concerned, reference may be made to the decision relied upon by the learned counsel appearing for the petitioner in the case of Queen-Empress v, Baburam Kansari (supra) where the Court observed that a person cannot be said to be & habitual receiver of stolen goods who may receive the proceeds of a number of different robberies from a number of different thieves on the same day, In order to support a conviction under Section 413 of the Penal Code of being a habitual receiver of stolen property, it must be shown that the property was received on different occasions and on different dates. It is also worthwhile to refer to another decision of the Calcutta High Court in the ease of The Empress v. Uttom Koondoo reported in (1882) ILR 8 Calcutta 634. In the said decision the Court has observed as follows :--
"A prisoner cannot be tried at the same trial for receiving, or retaining and habitually receiving or dealing in stolen property. The proper course is to try the accused first for the offence under Section 411, and if he is convicted, to try him under Section 413 putting in evidence the previous convictions under Section 411, and proving the finding of the rest of the property in respect of which no separate charge, under Section 411 could be made or tried by reason of the provisions of Section 453 of the Criminal Procedure Code."
5. So far as this case is concerned, it is submitted by the learned counsel for the parties that three cases are pending of similar nature and in two cases charge has been framed for commission of offence under Section 411 and no charge has been framed for commission of offence under Section 413. In view of the observations made above, I am of the view that charge under Section 413 at this stage cannot be maintained unless the previous conviction of the petitioner for commission of offence under Section 411 is proved.
I, therefore, quash the order framing charge so far as offence under Section 413 of the Penal code is concerned, However, it will be open for the learned Assistant Sessions Judge to frame additional charge during trial, if it is proved by way of evidence before the Court that the petitioner had been convicted earlier for commission of offence under Section 411 of the Penal Code.