KOTTA GOPINARAYAN CHOUDHARY Vs. STATE OF ORISSA

JUDGEMENT

(1.) This revision has been filed against the order dated 3-3-2003 passed by the learned Assistant Sessions Judge, Bhubaneswar in S. T. 1/31 of 2003 framing charge for commission of offences under Sections 457, 380, 120-B, 411, 413, 414, 109 of the Penal Code.

(2.) The case of the prosecution is that on 5/6-11-2001 the accused Santosh Das alias Prakash Sahoo alias Pattanaik entered into the temple of Lord Lingaraj premises by scaling over the boundary wall from the Western side, broke open the locks of Dakhinaghar, Dakhinadwara of main temple, Bhandarghar, Sivakali Temple, Kasiviswanath Temple, Parvati Temple, Bhubaneswari Temple and committed theft of gold and silver ornaments and sold the same to the present petitioner who received the same with the knowledge that the ornaments had been stolen. On completion of investigation, charge-sheet was submitted for commission of offences under Sections 457, 360, 120-B, 411, 413, 109, 414 of the Penal Code. After commitment, charge has been framed as stated earlier.

(3.) Shri Panda, the learned counsel appearing for the petitioner submits that charge cannot be framed for commission of offences under Sections 411 and 413 simultaneously. So long as offence under Section 411 is not proved, no charge under Section 413 can be framed. Reliance is placed by the learned counsel on a decision in the case of Queen-Empress v. Baburam Kansari, reported in (1891) ILR 19 Cal 190. The learned Additional Standing Counsel referring to Section 413 of the Penal Code submits that if the accused is found to be a habitual receiver of stolen goods, charge under Section 413 can be framed and in the present case there are materials to show that the petitioner was receiving stolen articles as a matter of habit. Section 411 and S. 413 of the Penal Code are quoted below :-