Khetia and Another vs State of Rajasthan

Mahendra Bhushan Sharma, J.—The only ground prevailed with me to partly allow this revision is that there is contravention of mandatory provisions of Section 361, Cr.PC. That section provides that if the case of the accused is such which could be dealt with either u/s 360 Cr.PC or Section 4 of the Probation of Offenders Act, 1958 (for short, the Act) and is not so dealt with, the court shall record special reasons in its judgment. So far as merits of the case are concerned, theft took place on July 26, 1976 in the house of Kanhaya Lal and the accused-petitioner was arrested on 29th July, 1976 and gave information u/s 27 of the Evidence Act and stolen property was recovered. u/s 114 Illustration (g) of the Evidence Act the court can presume that the person in possession of the stolen property is either thief or recipient of the stolen property if the possession of the same is not accounted for satisfactorily.

The property had been recovered from each of the accused petitioners within three days of the occurrence and presumption has rightly been raised by the courts below that the accused are thieves and because the theft was committed in the dwelling house each of the accused-petitioners have been rightly convicted u/s 380 IPC.

A look at the judgment of the learned trial court will show that it has not recorded the special reasons as required u/s 361, Cr.PC. It is only said that large quantity was recovered from the petitioners. This cannot be special reasons, more so when there is no previous conviction recorded against the petitioners of their character and antecedents are such that their case should not be dealt with under either of the aforesaid beneficial prevision.

Consequently, I partly allow this revision. While maintaining the conviction against the accused-petitioners u/s 380, IPC, it is hereby directed that instead of being sentenced at once to any imprisonment, the petitioners shall be released on each of their entering into a bond in the sum of Rs. 5,000/-with one surety in the like amount to be satisfaction of the learned trial court undertaking to appear and receive sentence as and when required during the period of one year and in the meantime to keep the peace and be of good behaviour. Two months time is allowed to the accused petitioners to furnish the aforesaid bonds in the trial court failing which the learned trial court shall take steps to see that the accused-petitioners serve out the sentence awarded to them.