State vs Bhoy Parshottam Shamji

Baxi, J.—The State has preferred this appeal against the order of the First Class Magistrate, Jam-nagar, permitting composition of an

offence u/s 403, I.P.C. and acquitting the Respondent.

A charge-sheet u/s 379, I.P.C. was sent upto the Magistrate by the Police against the Respondent, who was tried summarily. The facts as they

an pear from the Iearned Magistrate''s order are that the complainant went into the vegetable market for purchasing vegetables. He put his cycle

outside and went into the market and the Respondent is alleged to ''have removed it while it was lying there. After examining the evidence of

prosecution witnesses and recording the statement of the accused, the learned Magistrate made the order holding that in the circumstances of the

case the cycle could not be said to be in the possession of the complainant and consequently an offence Section 403 was disclosed by the

prosecution evidence east not an offence u/s 379 or Section 411, I.P.C. and permitted composition of the offence and ordered the Respondent to

be acquitted. This appeal has been preferred against the learned Magistrate''s above order.

The learned Advocate Ggeneral contended that cycle continued to he in the complainant''s possession even though he had temporarily left it

outside the market. He had an intention of returning and taking the cycle after making the purchases and consequently it had never gone out of his

possession. The learned Magistrate''s finding that the offence did not amount to theft was erroneous and his order permitting composition should

therefore be set aside.

On behalf of the Respondent it was argued that as soon as the complainant left the cycle on the payment, even though temporarily, he lost power

to exercise control over it and therefore the cycle could not be said to be in his possession and in removing it the Respondent could at the most be

guilty of criminal misappropriation of moveable property.

The appeal raises a very interesting question of law and though neither side could cite a decision directly bearing on the point, certain, decisions

may be referred to as they are useful in determining the question whether in the circumstances alleged by the prosecution, the complainant can be

said to be in possession of the cycle.

In -''Takit Tumi'' v. Emperor AIR 1925 Rang 113(2)(A) it was held that if a heap of bricks was lying untouched for eight years it might well be

supported to have been abandoned by it owner and the removal of bricks from that heap did not amount to the offence of theft. In 4 Mad 30 (1)

(B) the accused dug up a carcase of a bullock which the owner, suspecting it to have been poisoned, had caused to be buried. The High Court

expressed the opinion that as the owner had obviously given up all property in and also all possession of the carcase, the accused could not be

convicted of the offence of theft. These cases show that if the circumstances of the case suggested that a anoveable property has been lost or,

abandoned, it cannot be said to be in the possession of any one and cannot be the subject of the offence of theft.

On the other hand where a moveable property is not lost nor abandoned though the owner or the person in possession may be temporarily

away from it, it would continue to be in his possession and a removal of it in order to take it dishonestly out of such possession amounts to theft.

This principle appears to have becn accepted in - ''Emperor v. Karsan Bapu 4 BLR 626 (C). In that case the accused found a mare and colt

grazing in certain open lands whither the owner had driven them and with the assistance of Anr. person, who escaped with the animals, he drove

them away. He was held by the trying Magistrate to be guilty of dishonestly misappropriating moveable property u/s 403, I.P.C. and was directed

to pay a fine of Rs. 60/-. The District Magistrate being the opinion that the accused conviction was under a wrong section and that the sentence

passed was not adequate made a reference to the High Court. In his order of reference he stated ""It was clearly a case of theft as the animals were

not lost; and the sentence of fine only was therefore illegal. The sentence was also seriously inadequate."" High Court enhanced the Sentence to

three months'' rigorous imprisonment and a fine of Rs. 60/- but did not express any opinion about the nature of the offence committed by the

accused but the District Magistate''s opinion that the offence was clearly theft on the ground that the animals were not lost was apparently accepted

by it.

The following passage in Stephen''s Digest of Criminal Law, Article 306 quoted in Ratanlal''s Law of Crimes, Edn. 17, page 929 may be quoted

with advantage:

A moveable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner

to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need.

Applying the above principle''s to the facts of this case, it cannot be said that in leaving the cycle temporarily outside the market the complainant

either abandoned or lost it. The cycle was in his possession and when he left it he did not intend to give up his pos session or his dominion over it.

Under the circumstances the cycle cannot be said to have been out of his possession at any time, and consequently dishonest removal of it with

intention to take it out of the complainant''s possession would amount to the offence of theft as defined by Section 378, I.P.C. Such removal can

not amount to mere criminal misappropriation and the learned Magistrate therefore erred in permitting composition.

We, therefore, set aside the learned Magistrate''s order and remand the case to him for disposal according to law The Respondent''s trial was

not completed and naturally the opinion which we express here is based on the assumption that the facts alleged by the prosecution are proved.

The trial will have to be completed and the question whether these facts are proved or not and whether the Respondent is guilty of the offence of

theft or not will have to be decided by the learned Magistrate at the end of the trial in the light of the principles laid down in this order.

Shah, C.J.

I agree.