Delhi District Court
State vs . Manish Etc. on 28 February, 2011
IN THE COURT OF MANOJ JAIN
ASJ/SPECIAL JUDGE (NDPS): OUTER DISTRICT:
ROHINI COURTS
DELHI
Sessions Case No. 163/2010
Unique ID No. 02404R0304432010
FIR No. 350/10
PS Sultan Puri
U/s 457/380/411/413/34 IPC
State Vs. Manish etc.
ORDER
1 There are six accused persons and they have been charge-sheeted for commission of offences under Sections 457/380/411/413/34 IPC.
2 Needless to say that committal is due to the fact that offence under Section 413 IPC is triable exclusively by the Court of Sessions.
3 I have carefully gone through the material available on record. A theft had taken place on the night intervening 23.04.2010 and 24.04.2010 at the shop of complainant Mukesh situated in Sultan Puri being run under the name and style of Dahiya Communication Centre. Several mobile phones, mobile accessories and recharge coupons and some old mobiles, which had been received for repair purpose, were found to be stolen. Necessary investigation was carried out and one such stolen mobile phone was found active and call FIR No.350/10 PS Sultan Puri Page 1 of 5 details were tracked and one Ravi was contacted who told that he had purchased such mobile under bill from accused Manish. Accused Manish was accordingly arrested and interrogated and he revealed name of accused Deepak @ Dalip. Accused Deepak also disclosed name of Sanju. Further investigation concluded that theft in question had been committed by three persons, namely, accused no. 4 Monu, accused no. 5 Rakesh and accused no. 6 Anil and other three accused i.e. accused no. 1 Manish, accused no. 2 Dalip and accused no. 3 Sanju were receiver of stolen property.
4 There is distinction between Section 411 IPC & Section 413 IPC. Section 411 IPC relates to simpliciter receiving of stolen property whereas Section 413 IIPC is graver in nature as it talks about a person who is habitual receiver of stolen property or habitually deals in stolen property. IO was asked to apprise the Court about the previous involvement of concerned three accused persons and it becomes very much apparent that as far as accused Manish is concerned, he is not found to be involved in any previous case and, therefore, he cannot be labeled as habitual receiver or dealer.
5 According to prosecution and investigating agency, there are two other cases each against accused Dalip and accused Sanju. As far as one case of accused Sanju is concerned, though, he has been held guilty in one such other case yet fact remains that such other case related to FIR No.350/10 PS Sultan Puri Page 2 of 5 pickpocketing and offence of actual theft is different from offence of receiving stolen property. A pick-pocketer cannot be said to be receiver of stolen property.
6 Learned Additional PP has contended that at the stage of framing of charge, trial Court is not required to marshal material on record but has to prima facie consider whether there is sufficient material against the accused in respect of the charge levelled and the conclusion about inadequacy of evidence, at such stage, against the accused is premature assessment of evidence and not proper. She has contended that even strong suspicion about commission of offence is sufficient for framing of charge. Such proposition is not disputed at all but court has to at least satisfy itself about the existence of prima facie case. Moreover, court is not supposed to act as mouth-piece of prosecution. It is primary duty of court to accord its complete satisfaction about existence of prima facie sufficient material on record revealing grave suspicion.
7 Relevant Section 413 reads as under:
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.FIR No.350/10 PS Sultan Puri Page 3 of 5
8 Question is who can be said to be a habitual dealer or receiver. Habit connotes frequent and continuous string of commission of acts of the same kind. A repeated act of similar nature when done over an extended duration converts into habit. Such act becomes usual for any such individual and metamorphoses into a customary routine.
9 In the case of Mohan Parmanand Khatri, Petitioner v. M. G. Ingle 2004 CRI. L. J. 1017 Bombay, it has been observed as under:-
"...."Habit" connotes that person should be committing such acts recurrently so as to allow a reasonable person of reasonable prudence to come to a reasonable conclusion that he is in the habit of committing such acts. Stray incidents would not permit a legitimate inference or conclusion of "habit". "Habit" indicates that the person should be addicted to commission of such acts and it should be his habit to commit such acts."
10 In the case of Debu v. State 1995 CRI. L. J. 3547 Orissa, in context of sec 110 Cr.P.C. it has been observed that word "Habitually" must be taken to mean repeatedly or persistently. The word "habit" implies a tendency or capacity resulting from frequent repetition of same acts. A number of similar incidents cease to be isolated facts and become evidence of habit and character. How many facts must be proved to enable the Magistrate to draw a reasonable inference of habit of an accused cannot be laid down by any FIR No.350/10 PS Sultan Puri Page 4 of 5 hard and fast rule. It depends upon the circumstances of each case.
11 In the present case there is nothing on record which may demonstrate any pattern or habit so as to charge accused Dalip or Sanju under Section 413 IPC. One or two stray cases cannot be said to be sufficient to prima facie conclude them to be habitual receivers.
12 In view of my aforesaid discussion, no offence exclusively triable by the Court of Sessions is revealed. Case is accordingly remanded back. Accused persons are directed to appear or be produced before learned Addl. Chief Metropolitan Magistrate on 04.03.2011 at 2.00 p.m. Learned Addl. Chief Metropolitan Magistrate, (Outer District) Rohini Courts, Delhi would either try the case himself or assign the same to any other Court of competent jurisdiction. Concerned learned Magisterial Court would see as to what other offences are made out against accused persons and would proceed with the matter in accordance with law.
13 Ahlmad is directed to send the file accordingly.
Announced in the open Court on this 28th day of February, 2011.
(MANOJ JAIN) ASJ/Special Judge (NDPS) Outer Distt: Rohini Courts: Delhi FIR No.350/10 PS Sultan Puri Page 5 of 5