Bombay High Court
Omkarsingh Sajjan Singh Jat & Anr vs The State Of Maharashtra on 27 April, 2016
Bench: A.M. Thipsay
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.923 of 2004
Omkarsingh Sajjan Singh Jat & Anr .. Appellants
Versus
The State of Maharashtra & ors .. Respondents
WITH
CRIMINAL APPEAL NO.1024 OF 2004
Milind Malhar Shringarpure & ors
ig.. Appellants
Versus
The State of Maharashtra & ors .. Respondents
---
Mr.H.K.Prem, Advocate for the appellant in Cr.Appeal 923/04.
Mr.Raja Thakare with Mr.Prathamesh Samant, Advocate for
respondent nos.3 to 5 in Cr.Appeal 923/04.
Mr.R.B. Mokashi i/b Shri Narichania, Advocate for respondent
no.6 in Cr.Appeal 923/04
Mr.Raja Thakare with Mr.Prathamesh Samant, Advocate for the
appellant in Cr.Appeal 1024/04.
Mr.R.B. Mokashi i/b Shri Narichania, Advocate for respondent
no.4 in Cr.Appeal 1024/04.
Mrs.P.P. Bhosale, APP for the Respondent State.
---
CORAM : ABHAY M. THIPSAY, J.
JUDGMENT RESERVED: 6th APRIL 2016
JUDGMENT PRONOUNCED: 27th APRIL 2016
---
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JUDGMENT:
1 These two Appeals can be conveniently disposed of by
this common judgment, as both arise out of one and the same
judgment - i.e. judgment and order dated 26 th July 2004 delivered
by the Addl. Sessions Judge at Bombay in Sessions Case
No.1505/99.
2 The appellants in Criminal Appeal No.923/04 were
the accused nos.2 and 10, respectively, in the said case, while the
appellant no.1 in Criminal Appeal No.1024/04 was a witness
(P.W.8) therein.
3 The circumstances giving rise to these Appeals and the
facts necessary to understand the controversy are as under :-
On 6th July 1994, a dacoity took place and cash of
Rs.12,63,100/- belonging to Killburn Engineering Ltd (respondent
no.6 in Criminal Appeal No.923/04 and respondent no.4 in
Criminal Appeal No.1024/04) was robbed from the possession of
its employees. On the First Information Report lodged by one of
the employees, investigation commenced. In the course of
investigation, cash of Rs.7,07,805/- was seized by the police
claiming it to be a part of the robbed property. Though the
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Investigating Agency named 10 persons as the accused, actually
only the appellants in Criminal Appeal No. 923/04 i.e.
Omkarsingh Jat (accused no.2) and Smt.Jarjinder Jat (accused
no.10) were prosecuted, as one of the others died and seven either
absconded, or could not be arrested at all. The appellant no.1
and the appellant no.2 (original accused nos.2 and 10
respectively) are related to each other as husband and wife.
The learned Addl. Sessions Judge framed a charge in
respect of offences punishable under sections 120B IPC, 395 IPC,
307 IPC r/w section 34 of the IPC and section 353 IPC r/w section
34 of the IPC against the appellant no.1, and a charge of offences
punishable under sections 120B of the IPC and 414 of the IPC
against the appellant no.2. Thus, the case of the prosecution was
that the appellant no.1 (hereinafter referred to as 'accused no.2')
had taken part along with other accused in the actual dacoity,
assault etc, and the appellant no.2 (hereinafter referred to as
'accused no.10') had conspired with and assisted the accused no.2 in
concealing and/or disposing of the property obtained by the accused
no.2 by committing the dacoity in question.
5 The prosecution examined totally 13 witnesses during
the trial. The learned Addl. Sessions Judge, upon consideration of
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the evidence adduced, held that the prosecution had failed to prove
that the accused persons had committed the offences with which they
were charged, or any of them. He, however, held that the accused
persons had committed an offence punishable under section 124
of the Bombay Police Act, 1951 (now Maharashtra Police Act). As
such, he convicted both of them of the said offence and sentenced
them to suffer Simple Imprisonment till rising of the Court, and to
pay a fine of Rs.500/- each, in default to suffer Simple
Imprisonment for one month. The learned Special Judge
acquitted the accused persons of all the other offences, including
the offence punishable u/s.414 of the IPC (with which the accused
no.10 was charged).
6 During the trial, consistently with the case of the
prosecution, evidence was adduced to show that the accused
no.10 had purchased a row house bearing No.RH/1/L/3 in Sector
No.7, Vashi, from Milind Shringarpure (PW 8) - the appellant no.1
in Criminal Appeal No.1024/04. The consideration therefor was
Rs.7,00,000/- which was paid by the accused no.10 to the said
Milind Shringarpure.
7 Apart from challenging the correctness of their
conviction as recorded by the learned Addl. Sessions Judge, the
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appellants in Criminal Appeal No.923/04 are also challenging the
order of disposal of the property, as passed by the learned Sessions
Judge under the provisions of section 452 of the Code of Criminal
Procedure. (Code). Thus, the said Appeal is a composite appeal
under section 374 as well as under section 454 of the Code.
Criminal Appeal No.1024/04 is one under section 454 of the Code
and the challenge therein is limited only to the order of disposal
of the property.
8 It would be proper to reproduce here the order passed
by the learned Addl. Sessions Judge with respect to the disposal of
the property.
(iv) Muddemal property cash amount of
Rs.7,07,805/- be returned to Killburn Engineering Ltd,
Mulund. If the said Company is not in existence, the
said amount has to be forfeited to the State
Government.
(v) Sr.P.I.Bhandup police station is directed to seize
and attach the row house RH/1/L/3 in Sector No.7,
Vashi, New Mumbai from whoever may be in
possession thereof or even breaking the lock within 30
days from today and report this court accordingly and
to hand over the possession of the said row house to
PW 8 Milind Shringarpure, Mita Milind Shringarpure
and Sushma Vinayak Gupte within one month from
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the date on which the appeal period is over. Sr.P.I to
act upon the copy of this judgment sent by this Court.
(vi) Other muddemal property and the R&P of this
case be preserved for the trial of absconding accused.
Thus, the learned Addl. Sessions Judge directed the cash of
Rs.7,07,805/- seized in the course of investigation to be 'returned'
to the Company - Killburn Engineering Limited. As regards the
row house which had been purchased by the accused no.10, the
Addl. Sessions Judge directed the possession thereof to be handed
over to PW 8 - Milind Shringarpure, his wife Neeta and his
mother-in-law Smt.Sushma. The learned Addl. Sessions Judge
went to the extent of directing the Sr. Inspector of Police, Bhandup
Police Station to seize and attach the row house from 'whoever
may be in possession thereof' and 'even breaking the lock'.
9 It is this order for disposal of the property that has
been challenged by the present Appeals.
10 The case of the appellants in Criminal Appeal
No.1024/04 is simple. According to them, out of the seized cash,
an amount of Rs.6,56,800/- belonged to them and since it was
taken charge of by the police from the appellant no.1, it was the
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appellant no.1 who was entitled to receive the same when the
offences with which the accused were charged, were not proved.
The prayer of the appellants in Criminal Appeal No.1024/04 is
that the order directing the disposal of the property, to the extent
that it directed return of cash of Rs.6,56,800/- to Killburn
Engineering Co.Ltd, be set aside and that the said cash be handed
over to the appellants.
The challenge of the appellants in Criminal Appeal
No.923/04 i.e. accused nos.2 and 10 is to that part of the order
whereby the Sr. Inspector of Bhandup Police Station has been
directed to seize and attach the said row house, and hand over the
possession thereof to Milind Shringarpure (PW 8) and the other
appellants in Criminal Appeal No.1024/04. Of course, the order
of conviction of the accused nos.2 and 10 in respect of an offence
punishable u/s.124 of the Maharashtra Police Act is also seriously
challenged.
12 I have heard Mr.H.K. Prem, learned counsel for the
appellants in Criminal Appeal No.923/04. I have heard Mr.Raja
Thakare, learned counsel for the appellant in Criminal Appeal
No.1024/04. I have heard Mr.R.B. Mokashi, learned counsel for
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the Company - Killburn Engineering Ltd - the respondent no.6 in
Criminal Appeal No.923/04 and respondent no.4 in Criminal
Appeal No.1024/04.
13 Mr.Prem contended that the order of conviction of the
appellants and the order regarding the disposal of the property is
patently illegal and untenable. He submitted that in the first
place, the appellants could not have been convicted of an offence
punishable u/s.124 of the Maharashtra Police Act when they were
not charged of, or accused of having committed the said offence.
He also submitted that the row house, the possession of which has
been ordered to be taken by police for handing it over to Milind
Shringarpure (PW 8) (who is the appellant No.1 in Criminal
Appeal No.1024/04) and others, is patently illegal and absurd, as
the row house in question had not at all been seized at any time in
the course of investigation. He also contended that since the said
row house was not seized in the course of investigation, and no
offence had been committed with respect to the row house, the
learned Addl. Sessions Judge had no jurisdiction to pass any order
in respect of the disposal of the said row house purportedly in
exercise of the powers conferred on a Court by section 452 of the
Code. He also submitted that the order directing the police to take
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possession of the said row house by breaking open the lock and by
dispossessing whosoever would be in possession is totally illegal,
unjust and shocking.
14 Mr.Thakare, learned counsel for the appellant in
Criminal Appeal No.1024/04 also contended that the impugned
order is illegal. He submitted that the cash in question i.e. cash of
Rs.6,58,000/- (which forms part of the cash of Rs.7,07,805/-
recovered in the course of investigation) which had been seized
from the possession of Milind Shringarpure (appellant no.1 in
Criminal Appeal No.1024/04) ought to have been returned to
Milind Shringarpure only, and it could not have been returned to
the Company - Killburn Engineering Ltd. He submitted that no
nexus between the cash of the said Company which was robbed
and the cash recovered from Milind Shringarpure was established
during the trial, and as such, there was no question of handing
over the cash belonging to and recovered from appellant no.1
Milind Shringarpure to the Company Killburn Engineering Ltd.
15 Mr.R.B. Mokashi, the learned counsel for the
Company Killburn Engineering Ltd, however, supported the order.
He submitted that the impugned order was proper and legal.
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According to him, though the trial Court was unable to convict the
appellants of dacoity or robbery, and though the trial court could
not come to the conclusion that the accused no.2 had committed
the dacoity, and that he had handed over part of the robbed
property i.e. cash to his wife-the accused no.10, the trial Court
was also convinced that the said row house had been purchased by
the accused no.10 by ill-gotten wealth. According to him, since the
Court was convinced that the property of the Company Killburn
Engineering Ltd had indeed been robbed, the trial Court has
rightly directed the ill-gotten amount by which the accused no.10
had purchased a row house to be returned to the said Company.
16 Indeed, the order regarding disposal of property, as
passed by the learned Addl. Sessions Judge is rather curious. I
have, therefore, carefully examined the impugned judgment and
the observations made by the learned Addl. Sessions Judge to
examine the logic behind the order regarding disposal of property
as passed by him.
17 Before discussing this aspect of the matter, it must be
made clear that the order of acquittal of the accused nos.2 and 10
in respect of the offences with which they were charged, has
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become final. That order has not been subjected to any challenge
by way of filing any Appeal in this Court. Thus, the conclusion of
the learned Addl.Sessions Judge that the accused no.2 and/or
accused no.10 cannot be said to have committed the offences in
question, has become final and has to be accepted. In other words,
while considering the correctness of the impugned order, one must
necessarily proceed on the basis that there is nothing to connect
the accused no.2 with the alleged dacoity, and consequently, there
was nothing to show that the accused no.10 had assisted the
accused no.2 in concealing or disposing of stolen property.
18 To have clarity about the reasoning of the learned
Addl. Sessions Judge, and to remove any doubt that the learned
Addl. Sessions Judge specifically concluded that neither the
accused no.2 committed the dacoity, robbery, nor did the accused
no.10 assist the accused no.2 in disposing of stolen property, the
points for determination, as framed by the learned Judge and his
findings thereon, be reproduced here :-
Sr.No. POINTS FINDINGS
1) Does prosecution prove that on or about
6.7.94, accused no.2 along with his eight
companions agreed to do an illegal act of
commission of the dacoity by forming a
criminal conspiracy and the object of the
said conspiracy was to loot the cash
amount belonging to the Company of the
complainant ? : In the negative
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2) Does prosecution prove that on 6.7.94 at
about 12.00 noon, Nahur road, in front of
Indira Steel yard, Bhandup (West)
Mumbai-78, accused no.2 along with his
eight absconding companions conjointly
committed dacoity in respect of the cash
amount of Rs.12,63,100/- at the point of
revolver, riffle and the choppers ? : In the negative
3) Does prosecution prove that accused no.2
along with his eight absconding
companions, on aforesaid date, time and
place, while committing dacoity, assaulted
the complainant by means of the choppers
and caused injuries to the complainant to
his neck and the leg, which was
dangerous to life and attempted to commit
murder of the complainant ? : In the negative
4)
Does prosecution prove that after
commission of the said dacoity, the
complainant was chasing along with
the police officer Mahadev Patil,
accused no.2 along with his
companions assaulted and used force
against the police officers while they
were discharging their duty in the
official capacity with intention to
prevent and deter them from
discharging their official duties ? : In the negative
5) Does prosecution prove that accused
no.10, during the course of same
transaction on 8.7.94 at Navi mumbai,
Vashi purchased a row house from one
Shringarpure for Rs.7 lacs which is a
stolen property and knowing and
having reason to believe, voluntarily
assisted accused no.2 in disposing off
the stolen property ? : In the negative
6) Whether any other offence has been Offence u/s.124 of
committed by the accused ? B.P.Act.
7) What order ? See the final order.
19 The question then arises is what was the basis on
which the learned Addl. Sessions Judge thought the cash
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recovered from appellant no.1 Milind Shringarpure should be
handed over to Killburn Engineering Ltd., when he never came
to the conclusion that the cash received by Milind Shringarpure
from the accused no.10 was the cash that had been robbed by
the accused no.2 and his associates from the employees of
Killburn Engineering Ltd.? It may be emphasized that the case of
the Investigating Agency/prosecution was that the accused no.2
was one of the dacoits who robbed the property of Killburn
Engineering Ltd, and that the part of the said property i.e. cash
which had come into the hands of the accused no.2 was given by
him to his wife, the accused no.10; and that the accused no.10 had
purchased the said row house from the appellant no.1 - Milind
Shringarpure by paying this amount i.e. the amount earned by the
accused no.2 by committing the dacoity. The learned Addl.
Sessions Judge specifically refused to accept this case of the
prosecution and held that the same was not proved.
20 I have carefully examined the impugned judgment.
The prosecution witnesses Suhas Karve (PW 4) and Suhas
Nadkarni (PW5) who acted as panchas had said that Milind
Shringarpure had handed over cash to the police on different
occasions in their presence which was seized by the police under
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panchnamas (Exhibit-12 and Exhibit-13). Milind Shringarpure
himself was examined as a prosecution witness no.8 and he said
that he had sold the row house in question to the accused no.10
for which the accused no.10 had paid an amount of Rs.3,50,000/-
to him by cash and an amount of Rs.3,50,000/- by a demand draft.
That an agreement to sale was executed by his wife and mother-
in-law who owned the said row house and that, the key of the said
row house had been handed over by him to the accused no.10 on
the date of the agreement i.e. 8th July 1994. The prosecution had
also examined one Ajay Jain (PW 10) who had acted as a broker
in the transaction of the said row house, and he also said that the
agreed price of the row house was Rs.7,00,000/- and the mode of
payment was Rs.3,50,000/- by cash and Rs.3,50,000/- by demand
draft.
21 The accused no.10 took a stand during her
examination under section 313 of the Code that she had
purchased the row house from Milind Shringarpure not for
Rs.7,00,000/- but only for Rs.3,50,000/-. According to her, that
amount had been earned by her by doing the business of catering
and by giving tuitions. According to her, this amount had been
kept by her in a bank which was withdrawn and then paid to
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Milind Shringarpure. Thus, in short, the accused no.10 claimed
that she has paid not Rs.7,00,000/- but only Rs.3,50,000/- to
Milind Shringarpure though Milind Shringarpure claimed to have
received Rs.7,00,000/- for the row house. Apparently, this made
the learned Addl. Sessions Judge suspicious as he felt that the accused
no.10 was deliberately not disclosing the real purchase price of the
row house.
Though the learned Judge did not believe the accused
no.10 in respect of the amount paid by her to Milind Shringarpure
(PW 8), and though he felt that actually the accused no.2 had paid
Rs.7,00,000/- to Milind Shringarpure, and though he entertained
some suspicion against the accused no.10 by reason of her
claiming to have paid less than what she had actually paid, he
categorically held that the amount paid by her to Milind
Shringarpure (PW 8) was not the property robbed by committing the
dacoity in question. He categorically held that :-
"That, therefore, in my opinion, prosecution
failed to establish that the cash amount of
Rs.7,00,000/- which was in possession of
accused no.10 was stolen property out of the
dacoity of the cash amount belonging to the
Company of PW 1"
(para 45 of the impugned judgment)
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23 When a person accused of theft, robbery or dacoity
prosecuted and tried is acquitted of the offences, the property
recovered in the course of investigation ordinarily should go back
to the persons from whom it was recovered. Going by this, the
cash recovered from Milind Shringarpure ought to have gone back
to him and the other cash to the persons from whom it was
collected.
24 It would be, therefore, necessary to see what made
the learned Addl. Sessions Judge to deviate from this normal
course and to direct the row house to be given back to Milind
Shringarpure from whom the accused no.10 had purchased the
same and to direct that the amount paid by the accused no.10 to
Milind Shringarpure for the purchase thereof to be given to the
Killburn Engineering Ltd.
25 Before proceeding further, it may be examined
whether, when the accused persons were not charged of an offence
punishable under section 124 of the Maharashtra Police Act, their
conviction of that offence was proper, in accordance with law and
justified.
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26 Admittedly, no charge of an offence punishable under
section 124 of the Maharashtra Police Act was framed against any
of the accused persons. Even if, that framing of charge is not
mandatory for the said offence, the same being a summons case is
accepted, the particulars of the said offence and the substance
thereof, was required to be explained, which was not done.
Ordinarily, a person can be convicted only in respect
of an offence of which he is charged. The purpose of the
requirements in the Code of Criminal Procedure regarding framing
of charge (or to state and explain the particulars of offence and
substance of accusation if the case be a summons case) is to give
the accused a notice of the case which he has to meet. Section
222 of the Code is the only section which makes it possible to
convict a person of an offence though such person is not charged
with the offence of which he is held guilty. Section 222 of the
Code provides that when a person is charged with a major offence,
he can be convicted of a minor offence under certain circumstances
mentioned in that section, even though he is not charged with it.
The learned Judge has not referred to the provisions of section
222 of the Code, but evidently he was relying thereon to convict
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the accused nos.2 and 10 of an offence punishable under section
124 of the Maharashtra Police Act though none of them was
charged with the said offence. The reasoning of the learned
Judge, in that regard, is found in paragraph no.51 of the
impugned judgment which is worth reproducing here :-
"Section 124 of Bombay Police Act 1951 deals with
possession of stolen property or property obtained
fraudulently. In case of possession of stolen property
there is dishonest intention. It is his wrongful gain.
The person who is in possession of property obtained
fraudulently also has wrongful gain within the
meaning of section 23 of I.P.C. In wrongful pain the
person acquires property and retains wrongfully.
When there is wrongful gain in both cases, section 124
is abbreviated form and no charge under section 124 is
required to be framed. Section 124 is lesser section of
section 410 of the IPC. Section 410 is lesser of section
395, 392 and 380 of I.P.C. Therefore, without framing
charge, being a lesser section, accused can be convicted
under section 124 of Bombay Police Act, 1951.
28 It is not possible to agree with the learned Addl.
Sessions Judge that the offence punishable under section 124 of
the Maharashtra Police is a minor offence ('lesser section' as per
the terminology used by the learned Addl. Sessions Judge) of the
offence of dacoity, or that of an offence punishable under section
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414 of the IPC. To understand the correct position, a closer look at
the provisions of section 222 of the Code, is necessary. The head
note with which section 222 opens is "When offence proved
included in offence charged".
Section 222 of the Code reads as under :-
222 When offence proved included in offence
charged.
(1) When a person is charged with an offence
consisting of several particulars, a combination of some
only of which constitutes a complete minor offence, and
such combination is proved, but the remaining
particulars are not proved, he may be convicted of the
minor offence though he was not charged with it.
(2) When a person is charged with an offence and
facts are proved which reduce it to a minor offence, he
may be convicted of the minor offence, although he is not
charged with it.
(3) When a person is charged with an offence, he may
be convicted of an attempt to commit such offence
although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to
authorise a conviction of any minor offence where the
conditions requisite for the initiation of proceedings in
respect of that minor offence have not been satisfied.
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Illustrations
(a) A is charged, under section 407 of the
Indian Penal Code (45 of 1860 ), with criminal breach of
trust in respect of property entrusted to him as a
carrier. It appears, that he did commit criminal breach
of trust under section 406 of that Code in respect of the
property, but that it was not entrusted to him as a
carrier. He may be convicted of criminal breach of trust
under the said section 406.
(b) A is charged, under section 325 of the
Indian Penal Code (45 of 1860 ), with causing grievous
hurt. He proves that he acted on grave and sudden
provocation. He may be convicted under section 335 of
that Code.
29 The expression "minor offence" occurring in sub-
sections (1) and (2) to section 222 has not been defined either in this
section, or anywhere else in the Code. It is, however, well settled
that the gravity of punishment is not the test to decide whether a
particular offence is said to be a major or minor offence. The Minor
offence certainly does not mean an offence for which a lesser
punishment has been prescribed. The section does not refer to the
gravity of punishment at all, and as such, to determine what
constitutes a "minor offence" within the meaning of section 222, one
must examine the wordings of sub-sections (1) and (2) thereof. It is
because an offence can be treated as "minor" within the meaning
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of the said section with reference to the "main" or "major" offence
referred to therein and not independently of it. The following may
be given as an illustration of what sub-section (1) of section 222
speaks of:- Certain persons are being tried for having committed
dacoity. The ingredients of dacoity are such that some of them
taken together would constitute an offence of theft. Some of the
ingredients taken together, would constitute robbery. If all the
ingredients are proved, the offence would be one of dacoity which
would be the main or major offence. If, however, some of the
ingredients are not proved, but some ingredients which constitute
the offence of theft, or which constitute the offence of robbery are
proved, the accused can be punished for the offence of theft, or for
robbery, as the case may be, though he is not separately charged of
theft or robbery. It is because the ingredients of offences
constituting theft as also robbery are included in the ingredients
constituting the offence of dacoity. Thus, the offence of theft or
robbery would be a "minor offence" when compared to the major
offence of dacoity. Sub-section (2) of section 222 of the Code
contemplates cases where a person is charged with an offence, and
facts are proved which reduce it to a minor offence. This may
happen when a person is charged of an offence of murder, but the
proved facts reduce the offence of culpable homicide not
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amounting to murder, or that of causing grievous hurt by
dangerous weapon etc. A person charged of an offence of murder
which is punishable under section 302 of the IPC, can, therefore,
be convicted of an offence punishable under Section 304 IPC, or
326 IPC or 324 IPC etc, as the case may be, though no separate
charge is framed under any of these sections.
30 A careful study of the provisions of section 222 reveals
that under sub-section (1) thereof, all the particulars which
constitute a minor offence must be present in the major offence;
and it is only if that is the case, the offence can be treated as
'minor.' The phrase - "a complete minor offence" used in sub-
section (1) is significant. Therefore, if offence 'A' constitutes some
additional ingredients which are not at all in the offence 'B', the
offfence 'A' cannot be said to be a minor offence in relation to the
offence 'B'.
31 It is in this background, we may examine the
ingredients of an offence punishable under section 124 of the
Maharashtra Police Act. Section 124 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
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for sale or pawn, anything which there is reason to
believe is stolen property or property fraudulently
obtained, shall, if he fails 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 three
months or with fine 1 [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 hundred
rupees].
Thus, to attract the penal liability provided for in the said section,
three ingredients must be satisfied. Firstly, the accused must be in
possession of the property. Secondly, the property must be one in
respect of which the Court has reason to believe that it is "stolen
property or property fraudulently obtained", and thirdly, the
accused must be unable to account for such possession or act to
the satisfaction of the Magistrate. The offence of dacoity takes
place when 5 or more persons conjointly commit robbery (Section
391 of the IPC). Robbery consists either of theft or extortion as
one of its ingredients (Section 390 of the IPC). Property earned
by committing theft or robbery would qualify as stolen property,
but property fraudulently obtained will not. Section 124 of the
Maharashtra Police Act speaks of not only the property which is
Tilak 24/35 APEAL-923-04-1024-04
suspected to be "stolen" but also property "fraudulently obtained."
It is therefore, not possible to hold that all the ingredients of the
offence punishable under section 124 of the Maharashtra Police
Act are included in the offence of dacoity, and that, the offence
punishable under the Maharashtra Police Act constitutes a
complete minor offence of the offence of dacoity.
32 In my opinion, the offence punishable under section
124 of the Maharashtra Police Act cannot be treated as a minor
offence in relation to the offence of dacoity within the meaning of
section 222 of the Code. The nature of the offence punishable
under section 124 of the Maharashtra Police Act is quite different
from the offence of dacoity of which theft and robbery could be
treated as minor offences. The offences of theft and robbery relate
to a Specific Act. Section 124 of the Maharashtra Police Act does
not require proof of any specific act done by the accused and all
that it contemplates is that an accused should have in his
possession (or convey in any manner etc) anything which there is
reason to believe, is stolen property, or property fraudulently
obtained. It is not necessary to actually prove the property to be
stolen property, or property fraudulently obtained, much less, it is
required to be proved that the property had been stolen, or
Tilak 25/35 APEAL-923-04-1024-04
fraudulently obtained by the accused himself. What is
contemplated by section 124 is that the Court has to have a reason
to believe the property to be stolen or fraudulently obtained.
Once the Court has reason to believe the property to be stolen or
fraudulently obtained, then it would be for the person charged of
that offence to satisfactorily account for possession of such
property. The culpability of a person accused of having committed
an offence punishable under section 124 of the Maharashtra Police
Act, arises not on account of his being found with something
which there is a reason to believe to be stolen property or property
fraudulently obtained and the failure of the person to satisfactorily
account for such possession. Thus, the criminality attaches to the
possession only after the failure to satisfactorily account for such
possession. In my opinion, the essential ingredients of the offence
punishable under section 124 of the Maharashtra Police Act being
different from, and not being included in the offence of dacoity,
the offence punishable u/s.124 of the Maharashtra Police Act,
cannot be treated as a minor offence in relation to the offence of
dacoity for the purpose of section 222 (1) of the Code. Since there
is no other provision in the Code permitting an accused to be
convicted when there being a charge or accusation against him
with respect of that offence, the conviction of the accused nos.2
Tilak 26/35 APEAL-923-04-1024-04
and 10 in respect of an offence punishable under section 124 of
the Maharashtra Police Act was clearly contrary to law and not
tenable.
33 The nature of offence contemplated by section 124 of
the Maharashtra Police Act is quite different from the offence of
dacoity, robbery or theft. By convicting the accused without their
being any blame, charge or accusation of an offence punishable
under section 124 of the Maharashtra Police Act, the accused
persons have been denied of a fair opportunity of meeting the said
accusation. The learned Judge has emphasized the inability of the
accused persons to state from where they had received the cash of
Rs.7,00,000/- which had been used for purchasing the said row
house. Even though the learned Judge disbelieved, or at any rate,
did not accept the prosecution case that the amount with which
the accused no.10 had purchased the row house, formed a part of
the amount earned by the accused no.2 by committing the dacoity
in question, he still held that the said property was ill-gotten
wealth of the accused no.10. The basis for coming to such a
conclusion cannot be gathered from the impugned judgment.
The learned Judge observed that he had called upon the accused
nos.2 and 10 to explain the possession of the cash of Rs.7,00,000/-
Tilak 27/35 APEAL-923-04-1024-04
and that, the accused no.2 had replied that he did not know
anything about it, and that the accused no.10 had stated that it
was the money earned by her by doing the business of catering
and by giving tuitions. The learned Judge noted the explanation
given by accused no.10 that she had withdrawn the sum of
Rs.3,50,000/- from her bank account, and that, she had been
paying Income tax since last 10 - 12 years. The learned Judge, in
that context, observed that this explanation was only in respect of
cash of Rs.3,50,000/-, and not with respect to the entire cash of
Rs.7,00,000/- which was the amount actually paid by the accused
no.10 towards the price of the row house. It is true that since it
appears that the accused no.10 attempted to show that she had
paid only Rs.3,50,000/- towards the purchase price of the row
house, though she had actually paid Rs.7,00,000/-, a suspicion
about the cash of Rs.3,50,000/- being unaccounted can be
entertained. However, that by itself would not be a sufficient
reason to believe that the amount of Rs.3,50,000/- was either
"stolen property" or "property fraudulently obtained." Apart from
the fact that this cannot be accepted, there is no consistency in the
reasoning of the learned Judge, inasmuch as though his reasoning
shows that only the cash of Rs.3,50,000/- was suspected to be
stolen or fraudulently obtained, he is actually directed the entire
Tilak 28/35 APEAL-923-04-1024-04
cash of Rs.7,07,805/- to be returned to Killburn Engineering Ltd.
Anyway, what is of crucial importance is that the accused persons
have been deprived of an opportunity to explain their possession
of the cash in question. When the prosecution case against them
was specific and to the effect that 'the accused no.2 had taken part in
the dacoity in question, and that part of the property earned by
committing dacoity had been given by him to his wife - accused
no.10, and that it is by that property that the accused no.10 had
purchased row house from Milind Shringarpure (PW 8)'; and when
this was the charge that the accused persons had to meet, they were
only required to focus on the absence of any link or connection
between the property of Killburn Engineering Ltd that was robbed in
the dacoity and the cash paid to Milind Shringarpure. The accused
persons could not have had any notice that they have to generally
show as to how the accused no.10 had acquired the property in
question. Thus, non-framing of a charge or not stating and
explaining the particulars of offence and substance of accusation
in respect of the offence punishable under section 124 of the
Maharashtra Police Act has certainly caused prejudice to the
accused persons. Their conviction in respect of an offence
punishable under section 124 of the Maharashtra Police Act is,
therefore, required to be interfered with.
Tilak 29/35 APEAL-923-04-1024-04
34 Coming to the question of the disposal of the property,
the learned Judge categorically held that the prosecution had
failed to establish that the accused no.2 had conjointly with his
companions committed dacoity. (para -43 of the impugned
judgment).
35 It has already been seen that he also observed that the
prosecution had failed to establish that the cash amount of
Rs.7,00,000/- with which the accused no.10 had purchased the
row house was the cash belonging to the Killburn Engineering Ltd.
Even after holding that the accused nos.2 and 10 were guilty of an
offence punishable under section 124 of the Maharashtra Police
Act, the learned Judge categorically refused to connect the
amount of Rs.7,00,000/- to the amount which had been robbed by
committing the dacoity in question. It is, therefore, difficult to
understand that on what basis he directed the cash recovered from
Milind Shringarpure to the said Company. This would be incorrect
even if it is accepted which is for the sake of arguments that, that
the cash of Rs.7,00,000/- by which the accused no.10 purchased
the row house was either stolen property or property fraudulently
obtained. So long it was not the cash of Killburn Engineering Ltd
Tilak 30/35 APEAL-923-04-1024-04
that had been robbed by commission of dacoity and so long there
was nothing to show that the dacoits or one of them had handed
over the robbed cash to the accused no.10 which she had used for
purchasing the said row house, there was no question of returning
the cash to the said Company.
36 Mr.Mokashi, for the Company Killburn Engineering
Ltd contended that there was sufficient material to show that the
accused no.2 had indeed taken part in the dacoity. He contended
that the accused no.2 had sustained a bullet injury and that by
itself, was a strong piece of evidence against the accused no.2
showing his involvement in the dacoity. He also contended that
there was sufficient indication of the fact that the row house in
question had been purchased from out of the property that had
been obtained by committing the dacoity in question. In this
context, it may be observed that these are not the findings arrived
at by the learned Addl. Sessions Judge. On the contrary, he has
categorically held that there was no nexus between the cash by
which the row house was purchased and the cash that had been
robbed. The arguments advanced by Mr.Mokashi would suggest
that the accused no.2 should have been held guilty of dacoity, but
Tilak 31/35 APEAL-923-04-1024-04
the same has not been done. As observed earlier, the order of
acquittal of the accused of the charges of dacoity etc. has become
final, the State not having preferred any Appeal from the said
order of acquittal. Therefore, the propriety or correctness, as also
the legality of the order regarding disposal of property, as passed
by the learned Addl. Sessions Judge, has to be examined
consistently with the findings arrived at by him. The order cannot
be claimed to be correct or justified on the basis that it was the
cash of the Killburn Engineering Ltd. which had been robbed, that
was used for purchasing the row house.
37 I have gone through the observations made by the
learned Judge with respect to the disposal of the property
(paragraph nos.62 and 63 of the impugned judgment). Strangely,
in paragraph no.63, the learned Judge recorded that Shringarpure
had requested the refund of the amount of Rs.6,56,800/- received
by him from the accused no.2, but observed that Shringarpure was
not entitled to get the said amount as it was "stolen property" or
"property obtained fraudulently." The learned Judge then
observed that the said property has to be paid to the Company of
the complainant. This is not logical, because even assuming that
Tilak 32/35 APEAL-923-04-1024-04
the cash in question was stolen property (which is, incidentally not
the finding of learned Judge, and his finding is that there was a
reason to believe it to be stolen property) it was not proved, even
according to the learned Judge, that it was the property stolen from
the Company - Killburn Engineering Ltd. Therefore, logically,
even if it was to be proved to be stolen property, it ought to have
been returned to the person who was entitled to possess it i.e. the
person from whose possession it was stolen. Having held that
there was no nexus between the properties stolen from the employees
of Killburn Engineering Ltd, and the cash received by Milind
Shringarpure from the accused no.10, there was no question of
handing over the said cash to the said Company.
38 To sum up, the conviction of the accused nos.2 and 10
with respect to the offence punishable under section 124 of the
Maharashtra Police Act, was not proper or legal. They could not
have been convicted of the said offence when they were not
charged of the said offence, and no charge in that regard was ever
framed against them and/or when the substance of accusation
with respect to the said offence was never stated to them. The
offence punishable under section 124 of the Maharashtra Police
Tilak 33/35 APEAL-923-04-1024-04
Act cannot be considered as a "minor offence" in relation to the
offence of dacoity within the meaning of section 222 of the Code.
Convicting the accused nos.2 and 10 for an offence punishable
under section 124 of the Maharashtra Police Act without framing a
charge against them, or without explaining the particulars of
offence to them, has deprived the accused persons of a proper and
fair opportunity to meet the accusation. The order of conviction of
the accused persons, therefore, is bad-in-law. As regards the
disposal of the property, since the cash recovered from Milind
Shringarpure, was not proved to be the cash stolen by commission
of the dacoity in respect of the property of Killburn Engineering
Limited, there was no question of handing over the cash to the
said Company. Also, the learned Judge held that there was no
connection between the accused no.2 and the said dacoity, and
therefore, even if it was to be held that the accused no.10 had
received the cash in question from the accused no.2 (which
incidentally is not the finding), still, there was nothing to show
that the cash had anything to do with the dacoity of the property
of Killburn Engineering Ltd. The money used by the accused
no.10 for purchasing the said row house, was not proved to be the
money belonging to Killburn Engineering Ltd., or robbed in the
Tilak 34/35 APEAL-923-04-1024-04
course of the dacoity in question. Under these circumstances, if
still the learned Judge felt that the monies with which the row
house had been purchased was property in respect of which there
was a reason to believe it to be stolen or obtained fraudulently, he
ought to have specifically tried the accused persons with respect to
an offence punishable under section 124 of the Maharashtra Police
Act. This not having been done, the impugned judgment and
order is not tenable.
39 In the result, both the Appeals deserve to be allowed.
OPERATIVE ORDER IN 923 OF 2004
Appeal is allowed.
The impugned judgment and the order of conviction of the
appellants, as also the sentences imposed upon them are set
aside.
The appellants are acquitted of the offence punishable under
Section 124 of the Maharashtra Police Act.
Their bail bonds are discharged.
Fine, if paid, be refunded to them.
The order directing the Senior Inspector of Police, Bhandup
Police Station to seize and attach the row house; and to
hand over the possession thereof to Milind Shringarpure,
Mrs.Mita Milind Shringarpure and Smt.Shushma Vinayak
Gupte (appellants in Criminal Appeal No.1024 of 2004) is
quashed and set aside.
Appeal is disposed of accordingly.
Tilak 35/35 APEAL-923-04-1024-04
OPERATIVE ORDER IN 1024 of 2004
Appeal is allowed.
The order directing the return of the cash of Rs.7,07,805/-
to the Company - Killburn Engineering Ltd, is set aside.
Instead, it is directed that the cash of Rs.6,56,800/-
therefrom shall be returned to the appellant no.1 Milind
Shringarpure.
The remaining cash be returned to the persons from whose
possession it was seized in the course of investigation.
Appeal is disposed of accordingly.
(ABHAY M. THIPSAY, J)
