Abdul vs The State Of U.P Thru Secy., ...
2013 Latest Caselaw 1007 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

							A.F.R.
 

 
Court No. - 28
 

 
Case :- U/S 482/378/407 No. - 1672 of 2011
 

 
Petitioner :- Abdul
 
Respondent :- The State Of U.P Thru Secy., Deptt., Lucknow And Another
 
Petitioner Counsel :- Parijaat Belaura
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

By means of this application under Section 482 Cr.P.C., the applicant has made prayer to quash the charge sheet no.- 182 of 2010 arising out of Case Crime No.-338 of 2010 under Section 401 I.P.C., P.S. G.R.P. Charbagh, Lucknow and entire proceedings pending in the Court of Chief Judicial Magistrate, Northern Railway, Lucknow.

In brief the facts giving arise to the present application are that on 9.7.2010 at about 22:15 hours, the police force of G.R.P. Charbagh received a secret information that a gang of thieves is present behind the Hanuman Temple, then police party reached there and after hearing their conversation they were confirmed that it was a gang of thieves and thereafter police party apprehended three persons on the spot and on interrogation these persons disclosed that by administering narcotic powder, they used to commit theft of the belongings of the passengers of trains. The apprehended accused persons were searched by the police in accordance with law and thereafter the present applicant was found in possession of the narcotic powder and the other accused Rajesh Chandra Joshi was also found in possession of narcotic powder and also one unlicensed knife. Three cases under different sections were registered against the accused persons. Case Crime No.-338 of 2010 under Section 401 I.P.C. was registered against the accused persons in which after investigation the police has submitted charge sheet which is under challenge in the instant application. The other cases were under Sections 8/21/22 N.D.P.S. Act and another under Section 4/25 Arms Act.

Submission of the learned Counsel for the applicant is that even if the allegations made against the accused

persons are taken to be true on its face value even then no offence under Section 401 I.P.C. can be said to have been made out against the applicant. In support of his contention he has placed reliance on the pronouncement of Hon'ble Bombay High Court in the case of Criminal Appeal No.-516 of 2011 Emperor Vs. Tukaram Malhari, 1912, Cr./L.J.R. page 539 wherein the Hon'ble Apex Court has held as under:-

"Under Section 401 of the Penal Code, it has to be determined whether a party of accused persons constitute a gang of persons associated for the purpose of habitual theft, evidence that each individual of the party is a convicted thief , is relevant evidence for the purposes of that question."

Learned A.G.A has submitted that word habitually is important and prosecution shall prove its case during trial by adducing evidence that the applicant is habitual offender and at this stage proceedings cannot be quashed on this ground.

Before proceedings further, legal position on the point of quashing the proceeding has to be considered.

Hon'ble the Apex Court in the case of State of Haryana and others v. Ch. Bhajan Lal and others reported in [AIR 1992 SC 604] after considering large number of cases on the point of quashing the proceedings held at paras 108 and 109 as follows:

"(108) In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 of the inherent powers under section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any

precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under section 156 (1) of the Code except under an order of a Magistrate within the purview of section 155 (2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

"(109) We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.?"

Before proceedings further, it is necessary to quote, Section 401 I.P.C., which reads as under:-

"Punishment for belonging to gang of thieves- Whoever, at any time after the passing of this Act, shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery, and not being a gang of thugs or dacoits, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."

Perusal of the aforesaid Section, makes it clear that in order to constitute the offence under Section 401 I.P.C. the following ingredients are necessary:-

(I)That the accused belongs to any wandering or other gang of persons.

(II)That such gang of persons was associated for the purpose of habitually committing theft or robbery.

(III)That such a gang was not being a gang of thugs or dacoits.

In the facts of the instant case the present applicant was found in the association with two other persons and it was accepted by them that they used to administer narcotic drugs on the passenger of train and

thereafter they commit theft and narcotic substance was also recovered from and also illegal weapon. So, it was sufficient for the police to prima-facie establish that they belong to a gang of thieves. Now, the grievance of the learned Counsel for the applicant is that since there is no evidence that the applicant was habitual offender therefore no offence can be said to have been made out under Section 401 I.P.C.

It is pertinent to mention here that this charge sheet has been challenged only by the accused Abdul and not by the other accused persons. The perusal of the 401 I.P.C. makes it clear that the word habitually virtually qualifies the word gang and not to the person who is member thereof. The use of words by the legislature " or other gang of persons associated for the purpose of habitually committing theft or robbery" makes it clear that the gang with which the accused was associated was habitually involved in commission of theft or robbery. To attract Section 401 I.P.C. the accused must belong to such a gang which is associated for the purpose of habitually committing theft or robbery.

Accordingly, it is not necessary, that each member of the gang was in the habit of committing theft or any particular act of theft or roberry. Once it has been proved that a gang was formed for the purpose of habitually committing theft of the persons, who thereafter joined the gang in committing one or more theft comes within the purview of Section 401 I.P.C.

Belongings to a gang of persons associated for the purpose of habitually committing theft is punishable under Section 401 I.P.C. The term belong used in Section 401 I.P.C. implies something more than the idea of casual association, which involves the notion of continuity and indicates more or less intimate connection with a body of persons extending over the period of time sufficiently wrong to warrant inference that person arrested has associated himself with the gang for the common purpose, which is the commission of theft. So, it is more than a casual association. The substance of the Section is the

agreement habitually to commit theft not the actual commission or admitted commission of theft or roberry.

The existence of such an agreement and participation of any person in that agreement may be inferred from circumstances. The word habitually has been considered by the Hon'ble Apex Court in the case of Ayub alias Pappu Khan Nawab Khan Pathan Vs. S.N.Sinha and Another, 1990, 4 SCC Cases 552, Writ Petition(Criminal) No.-687 of 1990, in para -5 of the said judgment followed its earlier verdict in the Case of Vijay Narayan Singh Vs. State of Bhihar (1984) 3 SCC 14 and quoted para 31 of that judgment, which is being reproduced as under:-

"The expression 'habitually' means 'repeatedly' or 'persistently'. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions."

However, this observation was given with reference to Gujarat Prevention of Anti Social Activities Act 1985. In another judgment in the case of Mustakmiya Jabbarmiya Shaikh Vs. M.M.Mehta, Commissioner of Police & Others, (1995) 3 SCC 237, the Hon'ble Apex Court has again occasion to consider the meaning of word 'habitually' in para 8 as under:-

" The expression 'habit' or 'habitual' has however, not been defined under the Act. According to The Law Lexicon by P.Ramanatha Aiyar, Reprint Edn. (1987), p. 499, 'habitually' means constant, customary and addicted to specified habit and the term habitual criminal may be applied to anyone who has been previously convicted of a crime to the sentences and committed to prison more than twice. The word 'habitually' means 'usually' and

'generally'. Almost similar meaning is assigned to the words 'habit' in Aiyar's Judicial Dictionary, 10th Edn. p. 485. It does not refer to the frequency of the occasions but to the invariability of practice and the

habit has to be proved by totality of facts. It, therefore, follows that the complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude that a particular person is a "dangerous person" unless there is material suggesting his complicity in such cases which lead to a reasonable conclusion that the person is a habitual criminal."

In the case law relied upon by the learned Counsel for the applicant, i.e. Shanker Ji Shukla Vs. Ayukt, Allahabad Mandal, Allahabad & Others 2005 (52) ACC 638, wherein this court has held in para 5, as under:-

" The emphasis is on the word habitual and a single or two acts after a long gap does not amount to the term ' Habitually'. The expression 'habitually' means 'repeatedly' or 'persistently'. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify any inference of habit."

The aforesaid view of this Court was expressed with reference to the Goonda Act in which the word habitual is used with regard to an individual and not with reference to a gang. But in view of the provisions of Section 401 I.P.C., word habitual has been used with reference to a gang who habitually deals in theft or roberry. This fact has not been challenged by any other accused who was in the company of gang alongwith present applicant at the relevant time. Hence there was sufficient evidence that the applicant was associated with a gang who habitually committed offence of theft by administering narcotic substance on the passenger of the train.

In view of the above discussion, this application

under Section 482 Cr.P.C. is devoid of merits and deserves to be dismissed and it is hereby dismissed.

Order Date :- 17.4.2013

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