BRIJ MOHAN AGARWAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner through this petition seeks to quash the order dated 28. 5. 2005 passed by the learned Additional Sessions Judge, Khetri in revision petition No. 26/2005 arising out of the order dated 13. 4. 2005 passed by the learned Judicial Magistrate 1st Class, Khetri, by which the learned Magistrate has ordered to frame charge under Section 411 IPC against the accused petitioner.

(2.) THE facts relevant for the purpose of decision of the present petition filed under Section 482 Cr. P. C. may be summarised as under :

(3.) BE that as it may, the only evidence to connect the accused petitioner as brought forth by the prosecution is the recovery of chain. Even if it is taken to be correct on its face value that the stolen chain was recovered from the possession of present petitioner, still the prosecution is obliged to establish the recent possession of the stolen property so as to attract the presumption under Section 114 (a) of the Evidence Act. It is well settled that unless the possession is recent, the application of Section 114 (a) of the Evidence Act is not attracted and until prosecution proves something more, the offence under Section 411 IPC is not established. In the case at hand, the FIR of the incident of theft alleged to have taken place in the night intervening 14 and 16. 08. 2003 was lodged on 24. 3. 2004 i. e. , after 7 months of the alleged theft and, therefore, possession of Brij Mohan petitioner cannot be said to be recent.