Bombay High Court
Satish Shivajirao Deshmukh vs The State Of Maharashtra on 18 November, 2014
Author: T.V. Nalawade
Bench: T.V. Nalawade
1 Revision 331/2001
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Revision Application No.331 of 2001
Satish s/o Shivajirao Deshmukh, )
Age 30 years, )
Occupation : Business, )
R/o Sarafa Bazar, Nanded. ) .. Petitioner.
Versus
The State of Maharashtra. ) .. Respondent.
ig --------
Shri. P.K. Katneshwarkar, Advocate, for petitioner.
Shri. B.L. Dhas, Additional Public Prosecutor, for
respondent.
--------
CORAM: T.V. NALAWADE, J.
DATE : 18th NOVEMBER 2014
JUDGMENT:
1) The revision is filed against the judgment and order of Criminal Appeal No.78/1998 which was pending in Sessions Court Nanded. The appeal was filed by the present petitioner against the judgment and order of the Judicial Magistrate, First Class, Nanded delivered in Regular Criminal Case No.930/1995. The Judicial Magistrate First Class had convicted and sentenced the ::: Downloaded on - 24/11/2014 23:47:00 ::: 2 Revision 331/2001 petitioner for offence punishable under section 411 of the Indian Penal Code. This conviction and sentence is set aside by the Sessions Court but the petitioner is convicted and sentenced for offence punishable under section 124 of the Bombay Police Act. Both the sides are heard.
2) Complainant - Prabhakar Tak is owner of jewelery shop by name Balaji Jewelers and it is situated in Nanded city. The incident of theft took place in his shop on the night between 28-8-1995 and 29-8-1995. The thieves created hole in the wall of the shop and after breaking open the shop, they committed theft of valuable articles like silver pots, silver ornaments and gold ornaments. On the basis of his report, crime came to be registered at CR No.169/1995 in Bhagyanagar Police Station Nanded for offences under sections 457, 380 etc. of the Indian Penal Code.
3) During the course of investigation accused No.1 Narsing Sukalwad came to be arrested. He gave statements under section 27 of the Evidence Act on two occasions like on 13-9-1995 and 15-9-1995. On the basis ::: Downloaded on - 24/11/2014 23:47:00 ::: 3 Revision 331/2001 of the first statement police recovered gold ingot of 17 grams and sliver ornaments of about 4 kg from the shop of the present petitioner who also owns a jewelery shop.
On the basis of the statement given on 15-9-1995 police recovered one more gold ingot weighing 117.450 grams from the shop of the petitioner.
4) It is the case of the prosecution that the recovery made on the basis of first statement dated 13-9- 1995 is of the articles which were stolen from Balaji Jewelers and the recovery made on the basis of statement made on 15-9-1995 is in respect of theft committed by accused Nos.1 to 3 on the same night from three other places.
5) Charge sheet was filed against the petitioner for offence punishable under section 411 of the Indian Penal Code and against the other accused it was filed for offences punishable under sections 457, 380, 34 of the Indian Penal Code. The learned Judicial Magistrate First Class convicted and sentenced all the accused for these offences. Accused No.1 preferred appeal against the said ::: Downloaded on - 24/11/2014 23:47:00 ::: 4 Revision 331/2001 decision bearing Appeal No.83/1998. One accused had undergone the sentence as he was under trial prisoner but the other two accused who were convicted for offence under sections 457, 380 read with 34 of the Indian Penal Code had preferred the appeal. The learned Sessions Judge allowed the appeal filed by Narsing and Ashok and the conviction and sentence given to them for aforesaid offences is set aside.
6) The learned Sessions Judge has held that the evidence is not sufficient to prove that articles recovered from the shop of the petitioner on the basis of the statement made by the accused Narsing under section 27 of the Evidence Act are of Balaji Jewelers and the property cannot be called as stolen property as identity of the articles is not proved. The complainant of the present case was examined but it is held that the recovery made from the present petitioner on the basis of statement of Narsing cannot be connected with the theft which had taken place in Balaji Jewelers. Though this finding is given and present petitioner is also acquitted of the offence punishable under section 411 of the Indian Penal Code, he ::: Downloaded on - 24/11/2014 23:47:00 ::: 5 Revision 331/2001 is convicted and sentenced for offence punishable under section 124 of the Bombay Police Act, 1951.
7) It is the case of the prosecution that at four places theft was committed by accused Nos.1 to 3 on that night but only one witness is examined to show that theft of some articles from Balaji Jewelers was committed. The judgment delivered by the Sessions Court and even of the learned Judicial Magistrate does not show that any record in respect of incidents of theft committed at other three places was produced. The Sessions Judge has believed witness Madhusudan (PW 5) who has proved statement of accused No.1 on the basis of which gold ingot weighing 117.450 grams came to be recovered from the shop of the petitioner. From the reasoning given by the learned Sessions Judge it can be said that the learned Sessions Judge believed that the ornaments were sold to the petitioner by the accused No.1 but they were not stolen from the shop of PW 1 Balaji Jewelers. The learned Sessions Judge has convicted and sentenced the petitioner by making observations that the petitioner has not given any explanation about this recovery. It is observed that, ::: Downloaded on - 24/11/2014 23:47:00 ::: 6 Revision 331/2001 there was no bill or other record showing that petitioner had purchased the gold ornaments from accused No.1 -
Narsing. It is observed that the gold ornaments were immediately melted by the petitioner and due to that inference of culpable mental state of the petitioner can be inferred. It is also observed that it was necessary for the petitioner to show that he had paid market price to accused No.1. These observations themselves show that there was some misconception in the mind of the learned Sessions Judge. It is not the case of the prosecution that the petitioner is in habit of purchasing stolen property.
When the Court disbelieved the case of the prosecution that the ornaments stolen from Balaji Jewelers were recovered from the shop of the petitioner, it was not proper for the learned Sessions Judge to draw the inference that the other property like gold ingot weighing around 117.450 grams was probably stolen property.
8) There was no charge framed for offence punishable under section 124 of the Bombay Police Act. It appears that the learned Sessions Judge placed reliance on the case reported as 1975 Mh.L.J. 15 (Supreme Court) ::: Downloaded on - 24/11/2014 23:47:00 ::: 7 Revision 331/2001 (Champaklal v. State of Maharashtra). In this case the Apex Court has discussed the ingredients of offence punishable under section 124 of the Bombay Police Act. It is observed that the prosecution is required to prove following things:--
(1) accused must be in possession of property or must have conveyed or offered it for sale;
(2) property must be one in respect of which there is reason to believe that it is stolen property or property fraudulently obtained; and, (3) accused must be unable to account for his possession or act to satisfaction of Magistrate.
9) There cannot be dispute over this proposition.
However, it needs to be kept in mind that there was no charge framed for offence under section 124 of the Bombay Police Act.
10) The learned Additional Public Prosecutor placed reliance on the case reported as 1993(3) Bom. C.R. 138 (Nagpur Bench) (Ramesh Singh v. State of Maharashtra). In this case when there was charge for offence under section 413, Indian Penal Code, the Court held that conviction can be given for offence punishable ::: Downloaded on - 24/11/2014 23:47:00 ::: 8 Revision 331/2001 under section 124 of the Bombay Police Act and it is observed that offence punishable under section 124 of the Bombay Police Act is minor offence of the offence punishable under section 413 of Indian Penal Code. For appreciation of the things it is necessary to see all the three provisions and they are as under :-
Section 124 of the Bombay Police Act reads as under :-
"124. Possession of property of which no satisfactory account can be given : Whoever has in his possession or conveys in any manner, or offers for sale or pawn, anything which there is reason to believe is stolen property or property fraudulently obtained, shall, if he failed to account for such possession or to act to the satisfaction of the Magistrate, on conviction, be punished with imprisonment for a term which may extend to one year but shall not, except for reasons to be recorded in writing, be less than one month and shall also be liable to fine which may extend to five thousand rupees."
Sections 411 and 413 of the Indian Penal Code read as under :-
"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."::: Downloaded on - 24/11/2014 23:47:00 ::: 9 Revision 331/2001
"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."
For proving the offence punishable under section 411 of the Indian Penal Code different ingredients are required to be proved like dishonestly receiving or retaining stolen property knowing that the same is stolen property. For proving of offence punishable under section 124 of the Bombay Police Act, these ingredients are not required to be established as required for offence under section 411 of the Indian Penal Code and it is sufficient that there was the reason to believe that the property is stolen property or it was fraudulently obtained. Further, the provision of Section 124 of the Bombay Police Act shows that opportunity needs to be given to the accused to explain his possession over that property to the satisfaction of the criminal Court. So, unless there is specific charge for offence punishable under section 124 of the Bombay Police Act the accused cannot be expected to explain such things.
::: Downloaded on - 24/11/2014 23:47:00 ::: 10 Revision 331/200111) This Court has no hesitation to hold that offence under section 124 of the Bombay Police Act cannot be called as a minor offence of the offence punishable under section 411 of the Indian Penal Code.
This Court holds that prejudice is caused to the petitioner as there was no charge framed for such offence and he is convicted and sentenced for such offence. Such conviction cannot be sustained in law. The State has not challenged the order of the Sessions Court of acquitting the petitioner of the offence under section 411 of the IPC.
So nothing more can be done.
12) In the result, the criminal revision application is allowed. The judgment and order of the learned Sessions Judge by which the petitioner is convicted and sentenced for offence punishable under section 124 of the Bombay Police Act is set aside. The bail bonds of the petitioner stand cancelled.
Sd/-
(T.V. NALAWADE, J. ) rsl ::: Downloaded on - 24/11/2014 23:47:00 :::