The High Court · 2025

Petition under Section 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to quash the C.C.No.2140 of 2023 on the file of the ll Additional Chief Metropolitan Magistrate at Nampally, Hyderabad. l.A. NO: 2 OF 2024 Petition under Section 528 of BNSS praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pteased to stay all further proceedings in C.C.No.2140 of 2023 on the file of Court of the ll Additional Chief Metropolitan Magistrate at Nampally, Hyderabad, including the appearance of the petitioner. This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri S Ganesh representing Sri Buyyankar Krishna Karthik, Advocate for the Petitioner and Sri M Ramchandra Reddy, Additional Public Prosecutor on behalf of the Respondent No.1 and none appeared for the Respondent No.2. The Court made the following: ORDER ') THE HONOURABLE SMT. JUSTICE JUWADI SRIDEVI CRIMINAL PETI TION No.12634 of 2024 This Crininal Petition is filed by the petitioner-accused No.5 seeking to quersh the criminal proceedings against him in C.C.No.2140 of 2023 on tre file of the learned ll Additional Chief Metropolitan Magistrate at Nampally, Hyderabad. The offence alleged against the petitioner is urder Section 411 of the lndian Penal Code (for short 'lpC').

02. Heard Sri S.Ganesh, learned counsel representing Sri B.Krishna Karthik, learned counsel for the petitioner and Sri M.Ramchandra Reddy, learned Additional Public Prosecutor for the State-respondent No.1. No representation on behalf of the respondent No.2. Perused the material available on record.

03. Ttre brief facts of the prosecution case are that the accused No.1, the brother of the respondent No.2 and a native of Rajasthan State, was addicted to vices such as smoking and consuming ganja and, for his lavish expenses, indulged in property offences. ln 2018, after his release from iail, he came to Hyderabad on the directions of his parents and started rersiding with the respondent No.2, working as a Salesman in his cloth sho6r without being paid any salary. During visits to his brother- r i I I 2 in-law at Bangalore, the accused No.1 came into contact with the accused Nos.2 to 4, who are also property offenders, and shared his grievance, leading to a plan to commit theft from the respondent No.2's shop. ln execution of the plan, the accused Nos.1 to 4 using a Maruti Swift Dzire bearing No.GJ-01-HQ-0149 and on the advice of the petitioner-accused No.5, a police constable, came to Hyderabad and stayed at an OYO hotel. On the night of 27.07.2022, the accused Nos.2 and 3, being experts in burglary, entered the shop by cutting the window bars, broke open the drawers, and stolen Rs.5,50,000 in cash Thereafter, they returned to Bangalore, handed over the car to the accused No.5, and gave him Rs.1,00,0001. Subsequently, the accused No.1 moved to Goa, where he worked at a Kirana and General store owned by one Satish Kumar. Taking advantage of Satish Kumar's absence during a medical visit, the accused No.1 called the accused No.2, and together they stole gold ornaments, which were handed over to the petitioner-accused No.S, who disposed of some items and concealed the remaining in the dashboard of a vehicle, which is the subject matter of Crime No.21O of 2022 of Panaji Police Station, Goa. Thus, the accused Nos.1 to 4 committed offences punishable under Sections 457 and 380 of lPC, and the petitioner-accused No.5 committed an offence under Section 41 1 of lPC. r / 3

04. Learned counsel for the petitioner submits that the petitioner- accused No.5 has no manner of involvement in the alleged offence. lt is further submitt,:d that there is no recovery of any stolen property from the possessiorr of the petitioner-accused No.5. Moreover, there are no specific or direct allegations against the petitioner in the charge sheet, and a plain reading of the contents of the charge sheet do not disclose the essential ingredients necessary to constitute the offence punishable under Section 411 lPC.

05. With the above submissions, while praying to quash the criminal proceedings against the petitioner-accused No.5, he relied upon a decision of llonourable Supreme Court in Hiratat Babulal Soni v. The State of Maharashtra and othersl wherein at paragraph Nos.31 to 37 held that: "A_ Shilafly, the High Court imptiedly held that uzifnessrss connected with M/s CN have failed to identtfy the sei;zed gold. However, in the opinion of the High Court, t,1e same r's not relevant because the appeilant has failed to prove lawful acquisition of gold. We fail to understand, when the prosecution has faited to prove the identity of seized gold as being the same gold which were sold by' M/s. CN to M/s. Globe lnternationat, how the appellant is liable to prove lawful acquisition of gold vis-d- vis the .stolen gold. ' nrn zozs sc rszz 1 4

32. ln order to bring home the charge under Section 411 of the lPC, it r.s fhe duty of the prosecution to prove (i) that the stoten property was in fhe possession of the accused; (ii) that some persons other than the accused had possession of the property before the accused got possession of it and (iii) that the accused had knowledge that the property was sfo/e n property (See; 'Trimbak vs. Sfafe of M.P'- AIR 1954 SC 39).

33. tn "Mohan Lal vs. Sfafe of Maharashtra"O, this Court held that the prosecution has to prove that the accused was in possession of property which he had reason to believe that it was sfo/en property.

34. ln "Shiv Kumar vs. Sfafe of M-P-"7 ff,is Court reiterated fhe esse ntials of the offence under Section 411 of the IPC: "9. Assa iting the tegatity of the guilty verdict against the appellant, Mr Lav Kumar Agrawal, the learned counsel would submit that the essenfra/ ingredienfs of Section 411 tPC offence are not at all made out as the prosecution has failed to adduce any evidence to show that the accused had knowledge that the seized articles were stolen from the looted truck. lt is, therefore, argued that unless the knowtedge of the accused on the nature of the articles so/d by themis esfab/ished, his conviction under Secfion 411 IPC cannot be susfained in law- 13. ln this case, although recovery of items was made, the prosecution must further establish the (1979) 4 SCC 751 (2022) 9 SCC 676 essential ingredient of knowledge of the appellant that such goods are stolen property. Reliance solety upon the disclosure statement of accused Raju atias Rajendra and Sadhu alias Viiaybhan Singh will not otherwise be ctinching, for the conviction under Secfion 411 lPC. ,'- 5

16. To estab/ish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. F:or successful prosecution, it is not enough to prove thitt the accused was either negligent or that he had a cause to think that the propefty was sfo/en, or that he faileo to make enough inquiies to comprehend the nature of the goods procured by him. - The initial possessron of the goods in question may not be illegal but retaining those with the knowledge that if was sfo/en property, makes it culpable. 17. ............Moreover, the appellant in usual course, sold ufensr/s in his shop and nothing is unnatural about him possess,ng such household articles, as ser2ed from him."

35. When the pre-requisite evidence to bring home the charge under Section 411 of the IPC is considered in the present case, even if it is proved that the appellant was handed over the demand drafts by Mr. Mukesh Shah and gold bats were purchased by the appellant from M/s. CN and M/:;. V.B. Jewellers, sfr// it was necessary for the prosecution to prove that the appellant either had knowleclge or reason to believe that the demand drafts had been obtained through fraudulent process to make the gol'1 bars as stolen property in the hands of the appellant or that the appellant was paft of the conspiracy. Moreover, the appellant has not been charged and tried for the first part of the offence relating to criminal co n spi r acy vr's-ii-vis fraudu le nt TTs.

36. Yei another aspect of the case which needs consideration is invocation of Section 106 of the Evidence Act by the courls below. Under Section 106 of the Eviden,:e Act if certain facts are established, a reasonable inferen,:e can be drawn regarding existence of certain other fitcts which are within the special knowledge of the accused. On this, we may profitably refer to this Court,s ludgme:nt in "Nagendra Sah ys. State of Bihaf' 7 6 i'. "22. Thus, Secfion 106 of the Evidence Act will apply to fhose cases where the prosecution has succeeded in establishing the facfs from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the coutt can always draw an appropriate inference.

23. When a case is resfing on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden (2021) 70 SCC 725 placed on him by virtue of Secfion 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. ln a case governed by circumstantial evidence, if the chain of circumsfances which is required to be esfab/ished by the prosecution is nof established, the failure of the accused to discharge the burden under Secfion 106 of the Evidence Acf is not relevant at all. When the chain is nof complete, falsity of the defence is no ground to convict the accused."

37. Significantly, the Trial Court has held that in para 115 that the prosecution ought to have produced evidence to show that there was a sfock of the same brand with M/s. CN and out of that stock some gold bars with markings of Harmony Sut'sse, Johnson Mathew, Arya were sold to M/s. Gtobe lnternational. ln the absence of this evidence and especially due to delay of four years in the recovery of the property the very basis of its identification is found shattered, and the possibility of mistaken identification cannot be ruled out. With this finding of the Trial Court, invocation of Secfion 114 of the Evidence Act is nof at all permissible since the prosecution has failed to discharge its initial burden. The weakness in the defence or the appeltant's failure fo subsfa ntiate the fact while answering question (no.133) in his accused statement cannot become the strOngth of the prosecution. The prosecution r' (- 7 has fo prove its case beyond all reasonable doubts by positively' completing the chain of circumstances agalnst the appellant, which the prosecution has utterly failed in the present case."

06. Learned Assistant Public Prosecutor for the State- respondent Nc,.1 submitted that there are specific ailegations against the petitioner anc the truth or otheruyise would come out only after conducting tri,al by the concerned Court and prayed to dismiss the Criminal Petitir:n

07. ln view of the facts and circumstances of the case, it is relevant to exlract Section 411 of lPC, which reads as under: "41 1. Ltishonestly receiving stolen propefty- Whoever dishonestly receives or retains any stolen property, knowing, or having reason to believe the same to be stolen property, shall be pu nished with im either oescription for a term which may extend to three years, c,r with fine, or with both."

08. On a plain reading of Section 411 lp0, it is evident that the provision pertains to the offence of dishonesfly receiving or retaining stolen property. The essential ingredients of the said offence are that the accused must have received or retained the property in question, and such property must fafl within the definition of "storen property.,, rt is further required that, at the time of receiving or retaining such property, 8 the accused had knowledge or reason to believe that the property was stolen. Mere possession of the property, without such knowledge or belief, would not attract the penal consequences contemplated under Section 411 IPC

09. A careful scrutiny of the charge sheet discloses that the accused Nos.1 to 4 are alleged to have committed theft in the shop of the respondent No.2. The only allegation attributed to the petitioner- accused No.5 is that, on his advice, the other accused came to Hyderabad and stayed at an OYO hotel prior to the commission of the theft. The remaining allegations ,against the petitioner-accused No.5 admittedly form the subject matter of Crime No.210 of 2022 of Panaji Police Station, Goa. lt is of significance to note that the charge sheet, purportedly based on a thorough investigation, does not indicate recovery of any stolen property from the possession of the petitioner- accused No.5. Further, it is stated'that in their confessional statements, the co-accused have implicated the petitioner-accused No.5 in the crime only out of fear. The entire investigation and the contents of the charge sheet appear to rest sotely upon sr,,.ch confessional statements of the co- accused. However, reliance on the confessional statements, being inadmissible in evidence under Sections 25 and 26 of the lndian Evidence Act unless recorded before a Magistrate under Section 164 of ( 9 the Code of Criminal Procedure, cannot form the basis of the prosecution. ln the absence of legally admissible and substantive material, the implication of the petitioner-accused No.5 under section 411 IPC does not, prima facie, stand established. 1

10. ln view of the aforesaid discussion, taking into account the facts and circumstances of the case and the setfled principles of law laid down by the Hon'ble Supreme Court of lndia, this Court is of the considered opinion that, as the petitioner-accused No.S was not found in possession of any stolen property, the essential ingredients necessary to constitute tlre offence under section 41 1 lpc are not attracted. ln the absence of such foundational ingredients, the continuation of criminal proceedings iagainst the petitioner-accused No.S would amount to an abuse of the process of law. Accordingly, the criminal proceedings against the petitioner-accused No.5 are liable to be quashed. Therefore, the criminal proceedings against the petitioner-accused No.5 are liable to be quasherJ

11. A:cordingly, the criminar petition is ailowed and the criminar proceedings irgainst the petitioner-accused No.5 in c.c.No.2140 of 2023 on the file ol the learned ll Additional chief Metropolitan Magistrate at Nampally, Hyderabad, are hereby quashed. 10 As a sequel, pendang miscellaneous applications, if any, shall stand closed / Note: That the date of order on the Docket sheet of Crl.P.No.12634 of 2024 ls wrongly shown as 04/09/2025 and the Same is suomoto corrected as 28/08/2025. This Order substitutes the earlier Order dispatched on 04/0912025. SD/. B REKHA RANI ASSISTANT REGISTRAR SD/. B REKHA RANI ANT REGI /,TRUE COPY// SECTION OFFICER To,

1. The ll Additional Chief Metropolitan Magistrate at Nampally, Hyderabad 2. The station House Officer, Sultan Bazar Police Station, Hyderabad 3. Two CCs to the Public Prosecutor, High Court for the State of Telangana at Hyderabad (OUT)

4. One CC to SRI BUYYANKAR KRISHNA KARTHIK, Advocate [OPUC] 5. Tvto CD Copies ADK/ABK W t' t HIGH COURT DATED:2810812025 o() t * r,i.L I r.- I 0 1 B[,P ?0ffi * PI t'q';,,::' AMENDE:D ORDER CRLP.No.12634 of 2024 ALLOWING THE CRLP bPl*