Gujarat High Court
Viralbhai Becharbhai Vaghani vs State Of Gujarat & on 28 January, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/7122/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7122 of 2015
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VIRALBHAI BECHARBHAI VAGHANI....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
DAXAY P BHATT, ADVOCATE for the Applicant(s) No. 1
MS NIMISHA J PAREKH for the Respondent (s) No.2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 28/01/2016
ORAL ORDER
1. Rule returnable forthwith. Mr. Patel, the learned APP, waives service of notice of rule for and on behalf of the respondent No.1-State of Gujarat. The respondent No.2-original first informant although served with the notice issued by this Court has chosen not to remain present either in person or through an advocate and oppose this application.
2. By this writ-application under Article 226 of the Constitution, the applicant-original accused has prayed for the following reliefs:-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other appropriate writ, order or directions directing quashing of F.I.R. being C.R. No.II-119 of 2015 registered at J.P. Road Police Station, Vadodara City (at ANNEXURE-A hereto) as well as all consequential proceedings pursuant to the aforesaid F.I.R.;
(B) During pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay further proceedings of F.I.R. being C.R. No.II-119 of 2015 registered at J.P. Road Police Station, Vadodara City(at ANNEXURE-A hereto);
(C) Pass any such other and/or further orders that may be Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun Jan 31 01:57:48 IST 2016 R/SCR.A/7122/2015 ORDER thought just and proper,in the facts and circumstances of the present case."
3. The case of the prosecution may be summarized as under:-
4. The First Information Report has been lodged by one Dineshbhai Tersingbhai Rawat. The first informant is working with a Trust. It seems that some construction work was done by the applicant herein for the Trust and in that regard some dispute cropped up. It is alleged that on 31st July, 2015 the applicant herein entered in the office premises of the Trust and started hurling abuses to the first informant. It appears from the allegations that the applicant ransacked the office by damaging the telephone and printer. He is also alleged to have administered threats. He is also alleged to have walked away with few files which were lying on the table.
5. On such allegations, the FIR came to be registered initially for the offence punishable under Sections 506(2), 294(B) and 427 of the Indian Penal Code. Later on, the offence under Sections 394 and 452 of the Indian Penal Code came to be added.
6. I propose to examine a very limited issue as regards invocation of Section 394 of the Indian Penal Code. Section 394 of the Indian Penal Code has been invoked on the allegation that the accused took away few files which were lying on the table and according to the prosecution, it amounts to robbery.
7. By no stretch of imagination, taking away of the files Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Jan 31 01:57:48 IST 2016 R/SCR.A/7122/2015 ORDER from the office, will not amount to robbery within the meaning of Section 390 of Indian Penal Code. I may quote a decision of this Court in the case of Dharmendrabhai Nandubhai Patel and another V. State of Gujarat in Criminal Misc. Application No.7460 of 2011, [2011 (3) GLH 379] in paras 21 and 22 as under:-
"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.
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R/SCR.A/7122/2015 ORDER
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 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 Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Jan 31 01:57:48 IST 2016 R/SCR.A/7122/2015 ORDER 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."
8. For the forgoing reasons, this application is allowed in part. The charge-sheet so far as Section 394 is concerned, is ordered to be quashed. The trial shall proceed further in accordance with law, so far as the other offences are concerned. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) Manoj Page 5 of 5 HC-NIC Page 5 of 5 Created On Sun Jan 31 01:57:48 IST 2016