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1 - 10 of 29 (0.32 seconds)Section 448 in The Indian Penal Code, 1860 [Entire Act]
Section 411 in The Indian Penal Code, 1860 [Entire Act]
Section 468 in The Code of Criminal Procedure, 1973 [Entire Act]
The Indian Penal Code, 1860
Kesavan Nair vs State Of Kerala on 20 January, 2005
The only issue left to be considered is regarding the dishonest intention to take
property. During the arguments in Ld. Sessions Court, the Ld. Chief Public Prosecutor
conceded that dishonest intention is essential ingredient for the offence of theft as defined in
section 378 IPC. If the material on record does not reveal such dishonest intention, criminal
Court cannot proceed to frame charge for the said offence of theft or its ancillary offence
punishable u/s 411 IPC. To show that in such cases where there is dipsute in respect of the
property and if some person committed trespass, the only offence which can be made out is
that of trespass and not theft , counsel for accused has relied upon the judgment of Kesavan
Nair Vs. State of Kerala 2005 (3) KLT 391 dated 20.1.2005 in which the Hon'ble Kerela High
STATE VS RAJAN GUPTA 7/18 FIR 372/98
Court in similar circumstances has found that the offence of theft is not made out.
Hema Bhalla vs State on 23 October, 2002
In order to further
strengthen his submissions the counsel for the accused has relied upon the judgment of
Hon'ble High Court of Delhi titled as " Hema Bhalla Vs. State" (2003) JCC 115. The issue
seems to be the same in this case and Hon'ble Court was pleased to observe
" Ld. Counsel for the petitioner states that the Ld. MM did
not consider his arguments that the cognizance for the offence under
Section 448 IPC cannot be taken after 3 years which is the period of
limitation nor did he refer to the authorities cited by him in this regard. The
STATE VS RAJAN GUPTA 13/18 FIR 372/98
matter was taken to the Ld. ASJ by way of revision petition. However, the
Ld. ASJ did not touch the order of the Ld. MM whereby the petitioner was
discharged for the offence under Section 380 IPC and banked under the
charge sheet wherein offence under Section 448 IPC figured. Admittedly
the state did not prefer any revision against the order of Ld. Magistrate,
discharging the petitioner so far as offence under Section 380 IPC is
concerned. That being so the Ld. ASJ was only concerned with the
proposition whether charge for the offence under Section 448 IPC
could be framed or congnizance for the said offence can be taken
beyond the period of three years as prescribed under Section 468 (3)
Cr. P. C. Admittedly charge sheet including both the offences under
Section 448 and 380 IPC was filed and, therefore, the plea that the
cognizance beyond the period of three years
could not be taken was not available to the petitioner as no limitation has
been prescribed for taking cognizance for the offence under Section 380
IPC.
Arun Vyas & Anr vs Anita Vyas on 14 May, 1999
In Arun Vyas& Anr. Vs. Anita Vyas(supra) The Hon'ble court also observed
that any finding recorded by a Magistrate holding that the complaint to be barred by limitation
without considering the provisions of Section 473 Cr.P.C will be a deficient
and defective finding, vulnerable to challenge by the aggrieved party. Under section 473 the
delay can be condoned and this section confers power on every competent court to take
cognizance of an offence after the period of limitation if it is satisfied on the facts and in the
STATE VS RAJAN GUPTA 16/18 FIR 372/98
circumstances of the case that the delay has been properly explained or if it is satisfied on the
facts and in the circumstances of the case that it is necessary so to do in the interests of
justice. The expression `in the interest of justice' does not mean in the interest of prosecution.
What the Court has to see is `interest of justice'. The interest of justice demands that the
Court should protect the oppressed and punish the oppressor/offender. The court has also to
see the nature of offence committed and the reasons of delay. There is no application on
behalf of the prosecution or for that matter even on behalf of the complainant to condone the
delay in this case. The parties have a history of litigation and are duly assisted by the legal
advise at each and every stage of litigation. The accused is facing this case for last around
1213 years for the offence of house trespass for which, in case, accused is convicted, the
maximum punishment shall extend to one year and the charge is still not framed. The offence
committed is not of very serious nature considering the dispute of tenancy between the parties
nor the damage to the complainant was such that cannot be compensated . The civil litigation
to restore the possession is still pending and in case the accused is found at fault he may be
liable to pay damages for wrongful dispossession of the complainant.