Gujarat High Court
Jayrajsinh Devendrasinh Rathod vs State Of Gujarat on 15 June, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/10037/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10037 of 2018
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JAYRAJSINH DEVENDRASINH RATHOD
Versus
STATE OF GUJARAT
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Appearance:
MR JIGAR G GADHAVI(5613) for the PETITIONER(s) No. 1
NOTICE NOT RECD BACK(3) for the RESPONDENT(s) No. 2
MR RAKESH PATEL, APP (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 15/06/2018
ORAL ORDER
1. By this application under section 482 of the Code of Criminal Procedure, 1973, the applicant - original accused has prayed for the following reliefs:
"7(A) The Honourable Court may be pleased to quash and set aside the FIR being C.R. No. I - 171/2016 lodged with Vijapur Police Station dated 03.09.2016 for the offences under Sections 395, 342, 323, 504, 186, 506(2) of the Indian Penal Code and under section 135 of the Gujarat Police Act and under section 3, 5, 6, 8, 13 of Gujarat Mines Rules and under Section 4 of Gujarat Minor Minerals Concession Rules, 2010 and under Section 4(1)(a), 21 of the Mines and Minerals (Regulation and Development) Act Page 1 of 8 R/CR.MA/10037/2018 ORDER and the charge-sheet filed in the Sessions case no 32 of 2018 before Sessions Court Mahesana against the Applicant - original accused as well as proceedings thereof and to pass consequential orders as may deem fit, just and proper to Hon'ble Court.
(B) Pending admission, hearing and final disposal of the present application, this Hon'ble Court may be pleased to stay the further proceedings arising out of the said FIR being C.R. No. I - 171/2016 lodged with Vijapur Police Station dated 03.09.2016 for the offences under Sections 395, 342, 323, 504, 186, 506(2) of the Indian Penal Code and under section 135 of the Gujarat Police Act and under section 3, 5, 6, 8, 13 of Gujarat Mines Rules and under Section 4 of Gujarat Minor Minerals Concession Rules, 2010 and under Section 4(1)(a), 21 of the Mines and Minerals (Regulation and Development) Act and the charge-sheet in connection with the Sessions Case no. 32 of 2018 before Sessions Court Mahesana.
(C) To pass such other further order as deemed fit in the facts and circumstances of the case."Page 2 of 8
R/CR.MA/10037/2018 ORDER
2. On 11.06.2018, following order was passed:
"This Court would like to examine a very limited issue, whether any offence of dacoity could be said to have been, prima facie, made out or not.
Prima facie, it appears from the materials on record that even if the entire case of the prosecution is believed or accepted to be true, none of the ingredients to constitute the offence of dacoity punishable under Section 395 of the IPC are spelt out.
For examining this limited
issue, let notice be issued to the
respondents, returnable on 15th June
2018. The learned APP waives service of notice for and on behalf of the respondent - State of Gujarat.
On the returnable date, notify the matter on top of the board. The Investigation Officer to remain present with the papers of the investigation."
3. The investigating officer is present in the Court today with the papers of his investigation. It appears that charge- Page 3 of 8
R/CR.MA/10037/2018 ORDER sheet has been filed only against the writ-applicant herein for the offences enumerated above with one addition and that of Section 397 of the IPC. In column No.2 of the charge-sheet, it has been shown that at the time of the commission of offence, there were 10 to 12 other unidentified persons. In the course of the investigation, the police was unable to apprehend any of those unidentified persons. Thus a sole applicant is sought to be now put on trial for the offences enumerated above.
4. Be that as it may. The short point for my consideration is whether any case of dacoity is made out in the present case ?
5. Mr. Patel, the learned APP submitted that when the raid was carried out and the officers started recording the illegal mining operation on a mobile phone the same was forcefully snatched away by the accused herein and the SIM card was destroyed. This fact according to Mr. Patel constitutes an offence of dacoity. I am afraid by any stretch of imagination, this act would not fall within the ambit of dacoity. Let me explain the position of law.
6. Theft amounts to 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or Page 4 of 8 R/CR.MA/10037/2018 ORDER 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. Section 390 explains what is robbery. It explains when theft is robbery and when extortion is robbery. Section 391 explains what is dacoity. Section 392 provides for punishment for robbery. Section394 provides for voluntarily causing hurt in committing robbery. Section 394 reads thus:
"394. Voluntarily causing hurt in committing robbery:
If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with a [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
7. A Division Bench of this Court in the case of Himatsing v. The State of Gujarat, reported in 1961 GLR 678 has explained in detail when theft would amount to robbery.
"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 Page 5 of 8 R/CR.MA/10037/2018 ORDER 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 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 : Page 6 of 8
R/CR.MA/10037/2018 ORDER " 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." 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 Page 7 of 8 R/CR.MA/10037/2018 ORDER 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. If the aforesaid principle of law explained is applied to the facts of the present case, I have no hesitation in coming to the conclusion that no case of the offence under Sections 395 and 397 of the IPC could be said to have been made out. To this limited extent, I am inclined to accept this application and quash the proceedings.
9. In the result, this application is partly allowed. The filing of the charge-sheet for the offences punishable under Sections 395 and 397 of the IPC is not justified and tenable in law. The charge-sheet to that extent i.e. to the extent of the offence under Sections 395 and 397 of the IPC is ordered to be quashed. Sections 395 and 397 of the IPC is ordered to be deleted from the charge-sheet. The trial shall proceed expeditiously, in accordance with law so far as the other offences are concerned. Rule is made absolute to the aforesaid extent.
(J.B.PARDIWALA, J) MAYA Page 8 of 8