The State of Assam vs Sri Hanuman Prasad Sarma

T.N. Singh, J.—The First Information Report tint was lodged on 12.9.77 at the Silchar Police Station by one S.S. Baniwal of Assam Bervjal Carrier was to the effect that one of their trucks which was loaded on 5.9.77 from their Lala Bazar B''aitch with "185 Chests Tea" under specific gate passes and invoices of that date of Dbolai Tea Estate for carriage to Gauhati had not reached its destination until 11.9.77 and it was stated that there may be "some foul play by the driver of the vehicle" for which the matter was required to be investigated.

The police registered a case on the basis of the written report against the driver of the truck under Sections 406/407 of the Indian Penal Cods for investigation. Eventually, the police, after a lapse of more than twenty months, submitted charge sheet on 8.6,79 against ten persons, including the Petitioner under Sections 406/407/411 IPC. In the course of investigation the police seized.(sic) two separate seizure lists, on 26.9.77, almost three weeks (sic) the. truck had left: Sllchar, according to the F.I.R., two acts is leaves packed in bags from the north eastern side toman on first floor of a three storied R.C.C. Building at Silchar Town (sic) belonged to one Abani Mohan Saha and was stated to be occupation of the Petitioner. It appears that no tea chest found during the search of the premises.

On 20.5.81 the learned Judicial Magistrate, Ist Class, Silcbar (sic) charges against some of the accused under Sections 407 of IPC and discharged two of them; against the Petitioner was framed u/s 411 IPC for dishonestly retaining bags tea belonging to Dholai Tea Estate. The Petitioner went revision to the Sessions Judge, Cachar, Silchar, who, by his passed on 2311.81, quashed the charge framed against him. It is against this order that the State has preferred this application u/s 482 of the Code of Criminal Procedure.

In this case the learned Magistrate obviously was not required to pass a speaking order u/s 240 of the Code of Criminal Procedure but it appears that in revision the learned Sessions Judge has meticulously examined the material on record has come to the finding that the materials did not warrant the charge to be framed against the Petitioner as the prosecution filed to make out a prima facie case u/s 411 IPC against the Petitioner.

Mr. N.M. Lahiri, the learned Advocate General, Meghalaya appearing for the Petitioner in this case has submitted that it was within the jurisdiction of the Court below to sift the evidence produced by the prosecution to find whether a prima facie case made out against the accused on the basis of material which was supposed to disclose a grave suspicion against the accused. It is also submitted that even if it is found on the facts of case that the examination of the materials and appreciation of the evidence by the learned Sessions Judge was of an excesses agree not warranted u/s 235 or 240 CPC the passed in this case ought not to be set aside in the absence gross miscarriage, of justice. In support of his contention the Advocate General has relied on two decisions of their Lordship of the Supreme Court, Union of India (UOI) Vs. Prafulla Kumar Samal and Another,

Mr. C.R. Dey, learned Public Prosecutor has, on other hand, submitted that at this stage the prosecution was not required to make out a case which will entail a conviction of the; Petitioner and, therefore, it was sufficient to sustain the charge if there existed some suspicion against the accused on the materials placed before the trial Court as the Court was not required at this stage to judge the guilt or innocence of the accused which is the task that has to be left to the trial Court to be fulfilled at the final stage when the Court makes up its mind either to convict or to acquit the Petitioner. He has also relied on two decisions of their Lordships of the Supreme Court which I propose to discuss in due course.

It cannot be denied, however, that there is a duty on this Court u/s 482 of the Code of Criminal Procedure to examine not only the impugned order against which this petition has been preferred but the entire facts and circumstance of the case to come to a conclusion whether the impugned order is liable to be set aside to prevent either, the abuse of the process of the Court or the failure of justice in the case. I find on an examination of the impugned order that the contention of, Mr. Dey is not correct and it cannot be said that there has been a failure of justice in the case as a result of the learned Judge exercising his jurisdiction in a particular manner. It is true that the learned Sessions Judge has referred to the statement of three witnesses in some detail but be has done to only to mark out the broad contours of the important aspect of the prosecution case against the Petitioner. On a discussion of the statements he has come to the following conclusions and on that basis he has set aside the order passed by the learned Magistrate:

He has held, and rightly in my opinion, that it was necessary for the prosecution to place materials before the Court to establish the identity of the stolen goods without which a charge u/s 411 IPC could not be framed.

He. has, also held that the prosecution could not materials before the Court to show that the room .from which the alleged stolen goods were seized were in occupation of the petitioner and as such there is no material on the basis of which the possession of the said goods could be ascribed to the Petitioner.

It is true that in so far as the second point is concerned the finding of the learned Sessions Judge veers very close to a conclusive and final binding because he has incidentally referred to the fact that the Petitioner could not be said to be in "conscious possession" of any stolen property. However, in my opinion, for this particular extra jurisdictional finding there has been no failure of justice in this case and the impugned order can be. sustained even on the basis of the first conclusion arrived at by the Court below. Moreover, from the discussion of the relevant material on the point of possession, as made by the learned Sessions Judge, it appears that he has given valid and cogent reasons for rejecting the material placed before him by the prosecution as unreliable. His jurisdiction in revision being co-extensive with that of the trial Court he could consider the materials Independently under Sections 239 or 240 Code of Criminal Procedure and come to his own finding. This Court, at this stage, cannot sit on appeal on his findings. When the trial Court acts u/s 240 Code of Criminal Procedure it has to apply its judicial mind to the entire materials placed before .him although .he is not to give reasons for his decision be decides to frame, charge against the accused. If the (sic)arned, Sessions Judge has given reasons he has not exceeded his jurisdiction and this Court can only examine his reasons to see if be had applied his judicial mind in appreciating the material.

The main point for determination in this case was whether there existed a grave suspicion against the Petitioner of being found in possession of the stolen property about which the complaint was made for investigation and the substratum of the case apparently has, therefore, to be found in the requirement that the prosecution must produce satisfactory material before the Court to show that what was recovered from the possession of the Petitioner was the stolen property about which allegations of theft or misappropriation were made. Without establishing the identity of the stolen property a charge u/s 411 IPC cannot be frame, possession or no possession. In this concoction reference may be made to the definition of "stolen property" to be found. a Section 410 IPC and also, to Section 114 of the Evidence Act (sic) property has been defined, to mean "property the possesion whereof has been transferred by theft or by extortion or by robbery which has been criminally misappropriated or in respect of which criminal breach of trust has been committed."

In Illustration (a) of Section 114 of the Evidence Act it is stated that a man who is found in possession of stolen goods soon after the theft can be presumed either to be the thief or to be the person who has received the goods knowing them to be. stolen. Therefore, even if the prosecution was inclined to invoke the aid of this illustration they were required to show that the recovery was made at the earliest possible opportunity as the law does not extend the benefit of the presumption to a stale recovery. of the reasons for the necessity of the recovery being made the earliest is evidently rentable to the position that the accused may not have the opportunity to alter the identity of the property and it is the light of this view of Section 114 that the definition of stolen property u/s 410 has to be appreciated. The time factor has, of course, to be determined with reference to such facts as, the nature of the property, the nexus between the place of recovery and the place of theft and the activities of the person from whom the recovery is made. Whether there can be an open trade in respect of the property and whether the person concerned is a tradesman are important facts that have to be considered in this connection. Whether the property can be recognised in an altered state and the person concerned can be ascribed the knowledge of the alteration are some other important aspect These also require consideration.

What is stolen has to be recovered ; the identity of the property must be established in any case either directly or inferentially. It must be capable of recognition even in an altered state so that recovery can be related to the property in its original state. If a report is: made to the police that a necklace was stolen and after a month a bangle was recovered it would not amount to recovery of the stolen property merely because the prosecution is able to prove that both the necklace and the bangle are of the same material, gold. It will have to be shown by the prosecution whether and how the necklace was converted into bangle to bring the recovery within the definition of "stolen property". Obviously gold being available-in the open market it would be difficult to establish the identity of the stolen property simply with reference to recovery of another ornament made of gold. This is precisely the position'' in this case.

In this connection reference may be made to the decision in Naba Kumar Das Vs. State of West Bengal, to which .my attention is drawn by the learned Advocate General, that case a conviction u/s III IPC was challenged before the Supreme Court on the ground that there was some about the identity of the stolen properly which the prosecution had failed to establish because there was a misdescription of the article in the seizure list. The Court accepted the objection inspite of its feeble import and set aside the conviction. This projects in a bold relief the position that in a case u/s 411 IPC Court .importance has to be attached to the identity of the stolen property, even at the stage of framing the charge.

In the present case some loose tea leaves were recovered in bags in two lots and the tea leaves did not and could not have any special identity mark as all types of tea leaves are available in the market as rightly observed by the learned Sessions Judge. The prosecution his not seized any tea chest which could have established some link between the seized tea leaves and the stolen tea leaves by showing that the tee chests were of Dholai Tea Estate in. which the tea leaves of Dbolai Tea Estate were packed. That being the position it is difficult to hold that the learned Sessions Judge''s finding to the effect that; the identity of the stolen property could not be established, is an erroneous and perverse finding. The men recovery of only tea leaves without any material to indicate that there was a conversion or misappropriation in respect thereof would not raise grave suspicion" against the Petitioner in the absence any criminal activity of the Petitioner with respect thereto, to make him answerable u/s 411 IPC.

Mr. C.R. Dey, the learned Counsel Public Prosecutor, however, submits that mere recovery of tea leaves itself raised strong suspicion against the accused and that there was also material before the trial Court to suspect that it was recovered from the possession of the requested (sic) and these two facts were sufficient to sustain the charge. In the case of State. of Bihar v. Ramesh AIR 1977 SC 20 relied on by Mr. Dey, their Lordships were construing the provisions of Sections 7 and 228 which, it was pointed out, have to be read in juxtaposition. It was held in that case that:

at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce arc not to be meticulously judged.

In the other decision relied on by Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, it was held that:

it is impossible to work out a completely logical and precise definition of ''possession'' uniformly applicable to all situations in the context of all statutes.

In this case also their Lordships considered the scope of Sections 227 and 228 and held that:

at the stage of framing charges the prosecution evidence does not commence and the standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied.

and it was further held that:

at this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence. (Emphasis added.)

In this context it is also necessary to refer to the decisions on which reliance had been placed by (be learned Advocate General- In Union v. Prafutta supra) it wis held that:

what was a prima facie case would naturally depend upon the facts of each case and it is different to lay down a rule of universal application

It, was also observed that:

if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharges the accused.

In Kewal v. Suraj (supra) it was held that if the Magistral maticulously appreciated the evidence at the stage of framing framing charge, he merely Commits an irregularity by exercising his power.

As I have already observed earlier, in this case the finding of the learned Sessions Judge favouring the accused on the question of possession may perhaps be assailable being "meticulous" and also for his reference to "conscious possession" but as discussed above, in view to the legal position as indicated prove, his finding on the point of identity of the property is assailable. The decisions cited at the her support my view that it was necessary for the prosecution to place before the Court necessary materials to show all the "factual ingredients" constitution the alleged offence against the accused and if there was no material as respect any of the judgment there can not be said to prise a grave suspicion against the accused about his participation in the crime and the Court writ be (sic) to discharge the accused. In the instant case one important, rather the fundamental ingredient of the offence, namely, the identify stolen, property is lacking and therefore, it cannot be said that the learned Session Judge was wrong in arriving at the conclusion that no prima facie case u/s 411 IPC was shade out on the materials on record against the Petitioner.

It is true that, as pointed out by Mr. Dey, the learned session Judge has not said anything about rent receipts which were seized by the police in respect of the house from which was seized, but he has considered die other materials point of possession and has come to the finding that the material were not sufficient to implicate the Petitioner. On the appreciation of the other evidence in the case, without, albeit, to the rent receipt he has come to the definite finding last the room in the first floor of the building from which the (sic) leaves were seized was not in possession of the Petitioner. (sic)view of the matter it is not necessary to re-appreciate (sic) evidence on this point at this stag''s as the matter may be opposed of on the ground that the vital and fundamental in- (sic) of the offence was lacking in this case even if the fining as regards the second ingredient is held to be vitiated which. However, I am not inclined to do at this stage.

Taking an overall view of the matter, namely, the state its made in the F.I.R. and the belated seizured and that some tea, leaves only without any chest of the Tea Estate also of the, fact that the prosecution was launched more (sic) five years ago I do not feel, that a good case has been made out for interference by this Court, apart from the merits which I have already discussed above, I am of the opinion that it wilt be an abuse of the process of the Court if, in the facts and circumstances of the case, the charge is allowed to stand and the trial is allowed to drag on unnecessarily.

In the result, this application is dismissed and the impugned order passed by the learned Sessions Judge is upheld.