Sunil Kumar vs State
2009 Latest Caselaw 4229 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     Crl. Rev. Petition No. 167/2008

                                          Reserved on : 16.09.2009
                                      Date of Decision : 21.10.2009

Sunil Kumar                                         ......Petitioner
                                 Through:   Mr. Pawan Mittal and Mr.
                                            Rajeev, Advs. for the
                                            petitioner.

                                  Versus

State                                             ...... Respondent
                                 Through:   Mr. Pawan Bahl, APP

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.      Whether Reporters of local papers can be
        allowed to see the judgment?                    YES
2.      To be referred to the Reporter or not ?         NO
3.      Whether the judgment should be reported
        in the Digest ?                                 NO

V.K. SHALI, J.

1. This is a revision petition filed by the petitioner against the

order dated 5th December, 2007 by virtue of which the learned

Metropolitan Magistrate has directed the framing of charges

against the petitioner under Section 411/473/34 IPC.

2. Briefly stated the facts of the case, as given in the

impugned order are that one Mr. Deepak Verma had lodged a

complaint on 6th March, 2007 at about 11.15 p.m. stating that

he had received a telephonic call from his driver named Ram

Bahadur who had gone to drop his mother at a function and

then to pick her up but he did not reach the place from where he

was supposed to pick her up. On enquiry it had transpired that

the driver Ram Bahadur intimated that he had gone to

Karampura Terminal for easing himself and it was at that point

of time the car was stolen when it was parked. The complainant

reached the spot and found the driver Ram Bahadur to be in a

drunken condition and incoherent and consequently he was

booked for having committed an offence of criminal breach of

trust for which an FIR No. 148/2007 under Section 408 IPC was

registered at Police Station Moti Nagar, Delhi. During the course

of trial, the driver Ram Bahadur pleaded guilty to the offence

under Section 408 IPC. The learned Metropolitan Magistrate

took a lenient view and sentenced him to six months

imprisonment.

3. Subsequently thereto another FIR No. 552/2007 under

Section 20 of the NDPS Act and under Sections 411 and 420 of

IPC was registered at P.S. Punjabi Bagh, New Delhi against the

present petitioner Sunil Kumar who is purported to have made a

disclosure statement that he was having Honda City car in

respect of which Ram Bahadur had committed an offence of

breach of trust. The accused Sunil Kumar is purported to have

made a disclosure statement and in pursuance to the same, he

got the Honda City Car recovered from Desh Raj and this is how

both Desh Raj and Sunil Kumar were alleged to be prima facie of

having committed an offence under Section 411/473/34 IPC by

the learned Metropolitan Magistrate by the impugned order and

directed framing of charge. The offence under Section 411 IPC

was on account of having been found in possession of the stolen

property while as the offence under Section 473 was directed to

be framed on account of the fact that the vehicle number of the

car in question was found to be changed. The learned Magistrate

after hearing the learned counsel for the petitioner directed the

framing of charges against the petitioner for these two offences

by invoking Section 34 IPC.

4. The petitioner feeling aggrieved by the said impugned order

directing the framing of charges for the aforesaid two offences

has assailed the same by the present revision petition.

5. The main contention of the learned counsel for the

petitioner is that the charges under Section 411 and 473 IPC

have been directed to be framed against the present petitioner

although there is no evidence against the petitioner except the

alleged disclosure statement which would show that the vehicle

in question was recovered at his instance. It was urged that even

if the evidence and the statement which are adduced at this

stage are taken on its face value even then the vehicle in

question was recovered from the possession of Desh Raj and it

was not in the exclusive possession of the petitioner and

therefore, charge u/s 411 IPC could not be framed and the stolen

property is one of the basic ingredients under Section 411 IPC. It

was next contended that the theft of the vehicle had taken place

in March while as it was recorded in July whereas the person

should be found to be in possession of the goods immediately

after the incident which is not so in the instant case. The

petitioner in support of his contention has relied upon the

following judgments:

Trimbak Vs. State of M.P. AIR 1954 SC 39

Rajinder Kumar Vs. State 23 (1983) DLT 42

Nakali & Anr. Vs. State 1978 Cr.L.J. 379

Mahadeo Bind Vs. State of Bihar Crl.L.J. 1647

Janak Yadav Vs. State of Bihar 1960 Crl.L.J. 1646

Moti Lal Vs. State 1959 Crl.L.J. 219

6. So far as the offence under Section 473 IPC is concerned, it

was contended that since the vehicle in question was not

recovered from the possession of the petitioner, and therefore,

merely on account of the fact that the vehicle was bearing the

registration number other than one which was originally

assigned to it could not be assumed that the petitioner has

changed the number and the charge against him could not be

framed.

7. The learned APP has contested the submissions of the

learned counsel for the petitioner and contended that at this

stage what Court has to see is that there must be „grave

suspicion‟ of having committed an offence by the petitioner and

since the vehicle in question has recovered at the instance of the

petitioner he was in constructive possession of the vehicle. With

regard to offence under Section 473 IPC also, it was contended

that the vehicle in question had a number other than the

genuine number which clearly shows that the vehicle was

recovered from the joint possession of the petitioner and the co

accused was compared with so far as the registration number is

concerned. It is urged that prima facie it was the petitioner who

would have changed the said registration number of the vehicle

with a view to evade the detection.

8. I have gone through the judgments cited by the learned

counsel for the petitioner as well as considered the submissions

made by the respective sides. I do not agree with the

submissions of the learned counsel for the petitioner that in the

instant case the petitioner could not have been charged for an

offence under Section 411 IPC. The learned counsel for the

petitioner has cited the judgments which are essentially

distinguishable from the facts of the present case. Those

judgments are dealing with the question of exclusivity of

possession at the time of conviction of the accused. At the time

of framing of charges what is sufficient to warrant the framing of

charge is the „grave suspicion‟ or a „prima facie‟ case. In the

instant case, the petitioner is purported to have made a

disclosure statement and got the vehicle recovered from the

possession of Desh Raj. No doubt, the vehicle was in possession

of the co-accused but merely because Desh Raj was in physical

possession of the vehicle it does not mean that the petitioner was

not in constructive possession of the vehicle or that the vehicle

was not in exclusive possession. There can be more than one

person who may have exclusive possession of the stolen property

and both of them may have a common intention which obviously

the learned Magistrate has taken advantage of and directed the

framing of charges under Section 411 IPC by invoking Section 34

IPC. I do not find that there is any impropriety, illegality or

incorrectness in the impugned order so far as the framing of

charges under Section 411/34 IPC is concerned. Similarly, so

far as the Section 473 IPC is concerned, the same reads as

under:

"473. Making or possessing counterfeit seal, etc., with intent to commit forgery punishable otherwise.-Whoever makes or counterfeits any seal, plate or other instrument for making an impression, intending that the same shall be used for the purpose of committing any forgery which would be punishable under any section this Chapter other than section 467, or, with such intent, has in his possession any such seal, plate or other instrument, knowing the same to be counterfeit, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

9. A bare perusal of the aforesaid Section clearly shows that

from the very fact that the petitioner had changed the vehicle

number, chassis number or the engine number of the vehicle to a

number different than the one which was originally given to it at

the time of recovery clearly shows that prima facie they were

guilty of an offence under Section 473 IPC also and for that

purpose also the charge has been rightly framed against the

petitioner.

10. For the reasons mentioned above, I do not find that there is

any merit in the petition, and accordingly the same is dismissed.

V.K. SHALI, J.

October 21, 2009 KP