Madhya Pradesh High Court
Roop Kishor @ Kakka Soni vs The State Of Madhya Pradesh on 19 February, 2018
THE HIGH COURT OF MADHYA PRADESH
CRR-2192-2015
CRR-2190-2015
CRR-2189-2015
CRR-2172-2015
(ROOP KISHOR @ KAKKA SONI Vs THE STATE OF MADHYA PRADESH)
17
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Jabalpur, Dated : 19-02-2018
Shri Suyash Thakur, learned counsel for the petitioner.
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Shri C.K. Mishra, learned GA for respondent/State.
As the facts involved and the legal issues disputed is common in Pr all the revisions. The revisions are being decided by a common order. Learned the trial Court has framed charge for offence under Section a hy 395 read with Section 107, 413, 414 of IPC in ST No.138/15 and in other cases, offence under Section 413 of IPC.
ad The main contention of the counsel for the petitioner is that the M petitioner has not been convicted for offence under Section 411 of IPC of ever before. Therefore, framing of charge under Section 413 of IPC in all the cases are not maintainable. It is claimed that as the petitioner rt had not been convicted under Section 411 of IPC, no charge could ou have been framed against the petitioner/Roop Kishor for offence under C Section 413 of IPC.
In this context, the petitioner has placed reliance in the case of h ig Rajesh Gevarchand Luniya Vs. State of Maharashtra reported as 2015 SCC OnLine Bom. 2618 and Bane Singh @ Pahalwan Vs. H State of Rajasthan decided on 15/01/2014 by the High Court of Rajasthan in Cr.A. No.1254/08.
In the case of Rajesh Gevarchand Luniya (supra), the Bombay High Court has held that, in view of the provision of Bombay Habitual Offenders Act, 1959, wherein the definition given in the habitual offender, it is held that atleast the offender if convicted for twice or thrice under Secton 411 of IPC then only he can be charged High Court of Madhya Pradesh under Section 413 of IPC for habit of dealing or receiving stolen property.
In the case of Bane Singh @ pahalwab (supra), the Rajasthan High Court has held that, habitual offender or a person habitually addicted to crime is one who is criminal by habit or disposition formed by repetition of crimes. Police officer reasonably believed that the suspect is the habitual offender or is habitually addicted to crime is sufficient to justify the rule under the Police Act, 1861. Mere belief is not sufficient. The believe must be reasonable, it must be based on reasonable grounds. The suspect may or may not have been convicted if any crime. Even apart from any conviction, there may be reasonable grounds for believe that he is a habitual offender.
sh Per contra, counsel for the respondent/State opposed the e contentions submitting that the Section 413 of IPC cannot be ad interpretated in isolation. A person habitually received or deals in Pr property which he knows or reason to belief of the stolen property is called habitually dealing with the stolen property. It is contended that a as per the prosecution story, the petitioner has been dealing with the hy stolen property habitually, therefore, he has been indicted in Criminal ad Case Nos.138/15 and 134/15. Section 413 of IPC is more aggravated M form of Section 411 of IPC. It prescribed harsher punishment. The petitioner was allegedly financing the accused persons for committing of the crime and after commission of the crime, he used to keep the booty and divide it between the accused persons and himself. He used to rt purchase the share of the accused persons. Therefore, the petitioner is ou dealing habitually with the stolen property. C Keeping in view the above circumstances, this Court is of the h opinion that, at the time of framing of charge, if the evidence is on the ig record with regard to the number of cases pending or, if the H person/accused is convicted charge can be framed for offence under Section 413 of IPC along with Section 411 of IPC. But, at the time of final adjudication, first of all, the findings with regard of conviction for offence under Section 411 of IPC is required to be arrived at and thereafter, for the purpose for convicting the accused for habitually dealing in stolen property. After recording the finding of guilt, High Court of Madhya Pradesh sentence can be awarded under Section 413 of IPC on the basis of the established habitual dealing in stolen property and the prosecution producing the required evidence. Thus, at the stage of framing of charge, it is not necessary that, there must be conviction or finding against the accused for the purpose of framing of charge under Section 413 of IPC. In this regard, reference can be made to the case of K. Gopi Narayan Choudhary Vs. State of Orissa reported as 2003 Cr.L.J. 4050 (Ori.), ST Nos. 138/15, 134/15, 133/15 and 132/15 are pending against the petitioner for dealing with stolen property. It is because of the word 'habit' has a clear, well understood meaning, a tendency of frequent repetition. It would be incorrect to say that, a person has a habit of anything from a single act. Though, the petitioner has pleaded that without conviction of accused under sh Section 411 of IPC, no charge under Section 413 of IPC can be e framed. It is appropriate to hold that the trial Court has free to frame ad additional charge during the trial, if it was proved by way of evidence Pr that the petitioner had earlier been convicted for commission of offence under Section 411 of IPC, charge can be framed under Section a 413 of IPC.
hy As there are 4 pending cases against the petitioner, it would be ad appropriate to direct the trial Court to frame charge under Section 411 M of IPC and in alternative Section 413 of IPC. In any of the case, conviction under Section 411 of IPC if proved, then in all subsequent of cases, also same is proved, he can be convicted for offence under Section 413 of IPC.
rt At the stage of framing of charge, the standard of test and ou judgment which is finally applied before recording a finding of C conviction against an accused is not applied. It is just a very strong h suspicion based material on record would be sufficient to frame the ig charge. Thus, while recording the intimate finding, there is every H presumption in favor of the innocence of accused in the matter of determining his guilt and even if, in the matter of determining his intention or knowledge affecting the gravity of the crime. But, at the stage of framing of charge, even a strong suspicion of course founded upon material and presumptive material would enable the Court to frame charge against the accused.
Therefore, the petition is dismissed with the direction that, the trial Court would frame charge under Section 411 of IPC in alternative Section 413 of IPC in these cases.
(SUSHIL KUMAR PALO) JUDGE Digitally signed by Rashmi Ronald Victor Date: 2018.03.08 03:27:14 -08'00' RS e sh ad Pr a hy ad M of rt ou C h ig H