SAMBAR MALIK Vs. GOPALA MALIK

JUDGEMENT

(1.) This is an application under Section 432 of the Code of Criminal Procedure, 1973 (in short, the 'Code') questioning correctness of order passed by learned Sub-Divisional Judicial Magistrate, Jaipur (in short, the SDJM) taking cognizance of offence punishable under Section 395 of the Indian Penal Code, 1860 (in short, 'IPC') and directing issue of process to petitioners. According to them, ingredients necessary to constitute an offence punishable under Section 395, IPC are absent and cognizance as taken and direction for issue of process as given is not sustainable in law. Learned counsel for opp. parties on the other hand supports the order, abeting that learned SDJM has taken note of all relevant aspects.

(2.) In order to constitute an offence punishable under Section 395, IPC, evidence must prove that robbery was committed or attempted. Section 395 prescribes punishment for simple dacoity, while Sections 396 and 397 deal with grievous forms of dacoity accompanied with murder or attempt to cause death or grievous hurt respectively. Dacoity is defined in Section 391. It is an aggravated form of robbery which is committed by five or more persons. Robbery is defined in Section 390 and it provides that in all robberies there is either theft or extortion. Theft is robbery if it is in order to committing of theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, offender for that and 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. Robbery is a special and aggravated form, either of theft or extortion. Robbery means felonious taking from the person of another or in his presence against his will, by violence or putting him in fear. In order to establish robbery, material must exist to show that accused committed theft of moveable property which was in possession of a person accused moved such property while same was in possession of affected person without consent of that person; the act was done in order to take that property out of possession of the affected persons intention was to cause wrongful loss to the affected person or wrongful gain to himself. In addition, it has to be shown that accused caused or attempted to cause affected person (a) death, hurt or wrongful restrainst or (b) fear of instant death or of instant hurt or of instant wrongful restraint, and did the aforesaid acts in committing theft or in order to commit theft or in carrying away or attempting to carry any property obtained by threat, and to cause or attempt to cause death enumerated, acts was done voluntarily. In order to constitute dacoity, theft should be perpetrated by means either of actual violence or threatened violence. Dacoity is the only offence which the legislature has made punishable at four stages. When five or more persons assemble for the purpose of committing a dacoity, each of them is punishable under Section 399. The definition of dacoity in Section 391 shows that the other two stages, namely, the stage of attempting to commit, and the stage of actual commission of robbery, have to be treated alike and come within the definitions. There may well be a stage when there is only an agreement to commit dacoity, if there is proof of the agreement the offence of conspiracy punishable under Section 120-B is complete.

(3.) Question whether essential ingredients existed to take cognizance of offence punishable under Section 395, IPC, and whether petitioners had any link with the alleged offence, can be considered by the learned SDJM on an appropriate motion being made. If petitioners make an appropriate motion in this regard before learned SDJM on 10-1-1995, the same shall be dealt with keeping in view the principles and guidelines indicated by the Apex Court in K. M. Mathew v. State of Kerala, (1992) 5 OCR 66. Till disposal of the motion to be made on 10-1-1995, petitioners on making an appropriate application shall be permitted to be represented through counsel. The Criminal Misc. case is disposed of. Send back the LCR immediately. Order accordingly.