State of Himachal Pradesh vs Shankar Lal

V.P. Bhatnagar, J.—This appeal is directed against the judgment dated August 31, 1984, of the learned Judicial Magistrate 1st Class (I), Shimla by which he acquitted accused Shankar Lal of an offence u/s 380 I.P.C.

The incident is stated to have taken place on May 23, 1982. On the previous evening, Ramesh Chand who lodged the First Information Report along with one Mathu Ram stayed in Room No. 25 of Jain Dharamsala. Ramesh Chand had kept currency notes of Rs. 1478/- below the pillow of his bed. Next morning both of them vacated the room at about 8 A.M. leaving behind the aforesaid currency notes in the room. They went to a barber shop. Ramesh Chand after getting his hair cut recollected that he had forgotten to bring with him the currency notes in question. When he went back to the room he found the notes missing. His suspicion centered round accused Shankar Lal who was then working as sweeper in the Dharamsala. He then proceeded to lodge a report with the police. During investigation accused Shankar Lal made a disclosure statement pursuant to which currency notes of Rs. 1478/-were recovered. The learned trial Magistrate after appraisal of the evidence, came to the con1 elusion that the prosecution had succeeded in establishing the fact that the accused had removed the currency notes in question kept by complainant Ramesh Chand under the pillow of his bed in Room No., 25 of Jain Dharamsala and that the said notes were recovered as stated above. Nevertheless he was of the opinion that the essential ingredients constituting an offence u/s 380 I.P.C. had not been made out and, therefore, proceeded to acquit the accused. Hence this appeal.

The finding of the learned trial court revolves around the interpretation of ''theft'' defined in Section 378 I.P.C. This section reads:

378 - THEFT

Whoever, intending to take dishonestly any movable property out of the possession of any person without that person''s consent, moves that property in order to such taking is said to commit theft.

The learned trial court has been of the view that it was incumbent on the prosecution to prove that the movable property had been taken "out of the possession of any person without that person''s consent". The learned lower court also relied upon Illustration (g) u/s 378 which reads as under :

Illustration (g)

A finds a ring lying on the high road, not in the possession of any person. A, by taking it, commits no theft though he may have committed criminal misappropriation of property.

The lower court then proceeded to hold that the currency notes had not been taken out of the possession of the complainant Ramesh Chand since he had already vacated the room and had handed over its possession to the Manager of Jain Dharamsala.

I am afraid the law as interpreted by the learned trial court cannot be held to be sound. The facts certainly not be equated with those given in illustration (g) reproduced above for the simple reason that something lying on the high road and being picked up by a passer-by is entirely a different matter than pocketing forgotten currency notes in a hotel or a Dharamsala by its last occupant. In such case the possession reverts to the management of the Hotel or Dharamsala and it was incumbent on any employee working at such places to hand over such missing articles to the management. Even the possession of the management over such articles cannot but on behalf of the occupant who owns those articles. The proven act of accused Shankar Lal in pocketing the currency notes squarely falls within the definition of ''theft'' as contained in Section 378 IPC. There fore, the findings of the learned trial court on the above point are set aside.

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