STATE OF GUJARAT Vs. SANGHAR IBRAHIM LADHA

JUDGEMENT

(1.) The facts giving rise to this reference are very simple. During the course of investigation of Case No. 41 of 1969 of the Mandvi Police Station in respect of offences under secs. 457 and 380 of the Indian Penal Code the P.S.I. Mandvi had gone to the village of Pipri on 17-5-69 and taken search of the house of Sanghar Ibrahim Ladha in the presence of panchas. In that search certain articles such as three aluminum wire bundles one iron-board one iron pointed bar iron rod with nuts and bolts and one small iron saw etc. were found. Since the accused could not give any satisfactory explanation as to how he came in possession of such articles they came to be seized by making a panchnama in respect thereof. A complaint was filed by Mr. S. V. Tahilramani the P.S.I. Mandvi against the accused for an offence under sec. 124 of the Bombay Police Act 1951 in the Court of the Judicial Magistrate First Class at Mandvi. on the date of hearing of the case viz. on 24-7-69 before recording the plea on the accused the Court adjourned the case for hearing the Police Prosecutor on the point whether the offence was a cognizable one or a non-cognizable one. Then on the next date of hearing after hearing the learned Police Prosecutor he adjourned the matter for passing orders. It was however adjourned on that day as the papers could not be gone through by the learned Magistrate though the parties were present. It was then on 18-8-69 that the learned Magistrate passed an order whereby the accused came to be released under sec. 249 of the Criminal Procedure Code. He also directed the muddamal articles to be returned to him under sec. 517 of the Code. The material part of the order runs thus:-

(2.) It was however pointed out by Mr. Thakker the learned Assistant Government Pleader for the State that the order passed by the learned Sessions Judge in respect of the muddamal articles directed to be returned to the accused by the learned Magistrate is not proper. Before we go to that aspect of the matter. it would be necessary to consider the effect of sec. 249 of the Criminal Procedure Code. The learned Sessions Judge appears to have thought that the proper course for him was to proceed with the case and to record a finding of acquittal after taking the evidence by following a procedure laid down in Chapter XX in respect of the trial of summons cases by the Magistrates. He found support for the same from the decision in the case of State of Madhya Pradesh v. Shantilal Dayashanker 1962 (1) Cri. L. J. 817 where it has been laid down that in a trial of summons cases it is only after the procedure prescribed in sec. 244 is followed and the evidence is recorded that the Magistrate can under sec. 245 acquit the accused if he find him not guilty. The directions contained in secs. 244 and 245 are mandatory and without complying with them the Magistrate has no jurisdiction to pass an order under sec. 245 acquitting the accused. Reliance was however placed on further observations which run thus:-

(3.) In the present case however the learned Magistrate can hardly be said to have exercised the discretion properly under sec. 249 of the Criminal Procedure Code for the simple reason that he has ignored the nature of the offence said to have been committed by the accused by reading the complaint and the provision in respect of which he is sought to be prosecuted. In the view of the learned Magistrate some offence must have been registered in respect of those muddamal articles which came to be found from the possession of the accused. In other words he thought that there must have been a complaint for an offence of the theft or of receiving stolen property as a result of theft having been committed at somebody's place and Such a property or a part thereof having been found from the accused. If that were really so the prosecution of the accused would not have been under sec. 124 of the Bombay Police Act but would be one under sec. 379 or sec. 411 of the Indian Penal Code. The offence under sec. 124 of the Bombay Police Act is of a minor character inasmuch as while the property may not be strictly established as one having gone from the house of any particular person or even the property fraudulently obtained from any particular person in respect of which any complaint is lodged it contemplates an offence in respect of any such property found from his possession where there is reason to believe the same to be stolen property or the property obtained fraudulently and that if he fails to account for such possession to the satisfaction of the Magistrate he can be punished under sec. 124 of the Bombay Police Act. The essence of the offence is the possession of any particular property in respect of which there is reason to believe the same to be stolen property or property fraudulently obtained. When these two ingredients are established he would be required account for such possession and if he fails to so account to the satisfaction of the Magistrate he can well be convicted for the said offence. In Criminal Reference No. 2 of 1968 decided by this Court on 8th February 1968 it was observed that for showing that there is reason to believe a particular property to be stolen property or one fraudulently obtained the direct evidence can hardly be had and if it were available he would be charged for the substantive offence under the Indian Penal Code. If however any such evidence is available the prosecution can certainly produce the same but not having done so does not entitle the Court to ignore the effect of the circumstances disclosed from the evidence adduced in the case. Those circumstances may well arise having regard to the type of a person from whom any such property is found or about the kind and quantity of property showing unusual character thereof or in his conduct when found with the property in not being able to explain about the same. In such circumstances it would be a reasonable inference to be drawn from the set of circumstances established by the prosecution before holding him liable for an offence under sec. 124 of the Bombay Police Act. It would not therefore be proper for the learned Magistrate to ignore the nature of the offence said to have been committed by the accused by reference to sec. 124 and on a mere ground that no such complaint in respect of those muddamal articles was ever lodged. The learned Sessions Judge was therefore right in holding that the learned Magistrate has failed to proceed in the matter by allowing the prosecution to examine its witnesses and summarily stopping the proceedings and releasing the accused under sec. 249 of the Criminal Procedure Code. I would therefore accept the reference made by the learned Magistrate in that respect.