AI Structured Summary
Not yet generated for this judgment
Judgment
Since the issues raised in both the captioned applications are the same and the challenge is also to the self-same first information report, those were heard analogously and are being disposed of by this common judgment and order.
Rule returnable forthwith. Ms. Pathak, the learned APP, waives service of notice of rule for and on behalf of the respondent No.1. The first informant, although served with the notice issued by this Court, has chosen not to remain present either in person or through an advocate and oppose this application.
By these two applications under section 482 of the Code of Criminal Procedure, 1973, the applicants-original accused seek to invoke the inherent powers of this Court praying for quashing of the first information report being C.R. No.I-01 of 2017 registered at the Mangrol Police Station for the offence punishable under sections 392, 395, 143, 147, 148, 149, 323, 504 and 506(2) of the Indian Penal Code.
The case of the prosecution, in brief, is as under;
4.1 One Pradipbhai Devubhai Vasava, a resident of the village Nani Naroli Faliya Road, Taluka: Mangrol lodged the first information report in connection with a quarrel hat ensued relating to the election. It appears that there was an election of the Gram Panchayat and an altercation in words took place between the accused persons and the first informant. The altercation led to assault and, as usual, after the assault, there are allegations that Rs.3,000/- was taken away from the
trouser of the first informant. This allegation of taking away Rs.3,000/- from the trouser of the first informant, according to the Investigating Officer, amounts to decoity.
On 16th January, 2017, the following order was passed;
"This Court proposes to examine a limited issue as regards the applicability of section 392 of the Indian Penal Code. Prima facie, I am of the view that even if the entire case of the first informant is accepted or believed to be true, none of the ingredients to constitute the offence of robbery are spelt out.
Let notice be issued to the respondents, returnable on 31.01.2017. Ms. Pathak, the learned APP, waives service of notice for and on behalf of the respondent No.1. The respondent No.2 be served directly through the Investigating Officer of the concerned police station.
The investigation may proceed further in accordance with law. However, no coercive steps be taken against the applicants herein.
On the returnable date, the investigating officer shall remain present with the papers of the investigation. The investigating officer shall not file the charge-sheet without the permission of this Court.
Let the matter appear on top of the board.
Direct service is permitted."
Having heard the learned counsel appearing for the parties and having considered the materials on record, I have no doubt in my mind that even if the entire case of the first informant is believed or accepted to be true, none of the ingredients to constitute the offence of decoity are spelt out. As observed above, the dispute between the parties was relating to an election of the Gram Panchayat. There was some altercation in words, which, ultimately, resulted in an assault and then the allegations of decoity.
The law in this regard is well settled. The evidence on record do not even, prima facie, or remotely indicate that the common object of the unlawful assembly was to commit an offence of decoity. Can it be said that the motive behind the crime was commission of decoity or whether the common object of the unlawful assembly was to thrash the first informant on account of the dispute relating to the election. In the case of Himatsing Shivsing v. The State of Gujarat, reported in 1961 GLR 678, it has been observed as under by a Division Bench of this Court.
"Theft amounts to ''robbery'' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to ''robbery'', the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft hurt etc., had been caused. If hurt etc., is caused at the time of the commission of the theft but for an object other than the one referred to in sec.390, I.P.C ode, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft. The three ingredients mentioned in sec.390, I.P.C ode, must always be satisfied
before theft can amount to robbery, and this has been explained in Bishambhar Nath v. Emperor, A.I.R. 1941 Oudh, 476, in the following words:-
The words "for that end" in sec.390 clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft or is carrying away or is attempting to carry away the property obtained by theft. It does not mean that the assault or the hurt must be caused in the same transaction or in the same circumstances.
In Karuppa Gounden v. Emperor, A.I.R. 1918 Madras 321, which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi Manjhi, 5 C.W.N. 372, and Kind Emperor v. Mathura Thakur, 6 C.W.N. 72, it has been observed at page 824 as follows :
Now it is our duty to give effect to the words "for that end". It would have been open to the legislature to have used other words which would not raise the difficulty that arises here. The Public Prosecutor has been forced to argue that "for that end" must be read as meaning ''in those circumstances''. In my opinion we cannot do that in construing a section in the Penal Code . Undoubtedly, words ''in those circumstances'' would widen the application of the section and we are not permitted to do that. The matter has been considered in two judgments of the Calcutta High Court one of which is reported as Otaruddi Manjhi v.Kafiluddi Manjhi 5 C.W.N. 372. Their Lordships put the question in this way:
It seems to us that the whole question turns upon the words "for that end". Was any hurt or fear of instant hurt, that was caused in the present case, caused for the end of the commission of the theft ? We think not. It seems to us that whatever violence was used for the purpose of dispossessing the persons who were already in possession of the premises in question and had no relation to the commission of theft, although theft was
committed at the same time.
The language used in another case reported as King Emperor v. Mathura Thakur, 6 C.W.N. 72, is as follows :-
The question here arises whether Mathura Thakur when he attacked Soman Dhania, did so for the end referred to, namely, for the purpose of carrying away the paddy, which had been harvested.
Those judgments in my opinion state the obvious intention of the section and we are bound to give effect to it and I, therefore, follow the decisions in those two cases.
In the last paragraph of the judgment, the Division Bench observed as under:-
Ordinarily, if violence or hurt etc. is caused at the time of theft, it would be reasonable to infer that violence or hurt was caused for facilitating the commission of theft or for facilitating the carrying away of the property stolen or for facilitating the attempt to do so. But, there may be something in the evidence to show that hurt or violence was caused not for this purpose but for a different purpose."
In the result, both the applications are partly allowed. The first information report so far as the offence of decoity punishable under sections 392 and 395 of the Indian Penal Code is concerned, are hereby quashed. The investigation shall now proceed further in accordance with law with regard to the other offences. Rule is made absolute to the aforesaid extent.
Direct service is permitted.