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12. Per contra, while supporting the order passed by the trial Court, it is contended by learned Counsel for the non-petitioners, Shri Alok Sharma that in this case the learned trial Court has rightly discharged the non-petitioners from the offence under Section 413, IPC with regard to arguments" advanced by the learned Addl. Advocate General for applicability of the judgment in Uttom Koondoo's case, it is submitted by learned Counsel for the non-petitioners that in that case it has been held that the accused cannot be tried at the same trial for offence under Section 411, IPC on the one hand and Section 413, IPC on the other. He argued that the logic of the judgment lies in such a trial entailing a contravention of the then subsisting Section 453 of the Criminal Procedure Code 1872. It is submitted that Criminal Procedure Code, 1872 was substituted by the Criminal Procedure Code, 1898, whereunder Section 453 of the Code of 1872 stood equal to Section 234 of the Code of 1898. Upon subsequent substitution of the Code by Criminal Procedure Code 1973, Section 234 of the Criminal Procedure Code, 1898 stood equated with Section 219 of the Criminal Procedure Code, 1973. It is, therefore, submitted by learned Counsel for the non-petitioners that statement of law in Uttom Koondoo holds good as of today. According to him, therefore, the trial Court has rightly discharged the non-petitioners for offence under Section 413, IPC.

16. It is further submitted by learned Counsel for the non-petitioners that having enunciated with clarity the issue of misjoinder in the event an offence under Section 411, IPC were to be tried along with offence under Section 413, IPC, in its special facts, the Court was pleased to hold that subsequent to a conviction under Section 411, IPC a trial for an offence under Section 413, IPC could be initiated with the previous conviction under Section 411, IPC supplying material to establish habit as required under Section 413v IPC. It is submitted that the enunciation of law in Uttom Koondoo's case is how a misjoinder of a trial would ensure in the event an offence under Section 411 and Section 413, IPC were to be tried together.

31. Perusal of the impugned order reveals that at the time of framing charge the Court was only required to see the evidence for the purpose of framing charge; but, the learned trial Judge has adjudicated upon the matter for the purpose of offence under Section 413, IPC.

32. In this view of the matter, it can very well be said that at the time of framing charge, the learned trial Court, if evidence is on record with regard to number of cases pending or, in which the person accused is convicted, can frame charge for offence under Section 413, IPC along with Section 411, IPC; but, at the time of final adjudication, i first of all, finding with regard to conviction for offence under Section 411, IPC is required to be arrived at; and, thereafter, for the purpose of convicting the accused for habitually dealing in stolen property, after recording finding of guilt sentence can be awarded under Section 413, IPC on the basis of established habitually dealing in stolen property and the prosecution is required to prove the regular indulgence with regard to offence under Section 411, IPC by way of producing the required evidence. Thus, at the stage of framing charge. It is not necessary that there must be conviction or finding against the accused for the purpose of framing charge under Section 413, IPC.

34. In the facts and circumstances of the case, it is a fit case for direction to the trial Court to frame charge under Section 413, IPC. Accordingly, the petition is allowed. Impugned order dated 21-4-2005 is quashed to the extent whereby accused non-petitioners have been discharged for offence under Section 413, IPC. The trial Court is directed to frame charge for offence under Section 413, IPC also and proceed with the case.