The High Court · 2025

Petition under Section 528 of BNS$ praying that in the circumstances stated in the Memorandum of Grounds of Crifninal Petition, the High Court may be pleased to stay all further proceedings in C.Q.No.2140 of 2023 on the file of Court of the ll Additional Chief Metropolitan tviagistrate 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 heaiing the arguments of Sri S Ganesh representing Sri Buyyankar Krishna Karthik, Sdvocate for the Petitioner and Sri M Ramchandra Reddy, Additional Public ProsPcutor 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 JUVVADI SRIDEVI CRIMINAL PETITION No.1 2634 ot 2024 ORDER This Criminal Petition is filed by the petitiorer-accused No.5 seeking to quash the criminal proceedrngs against hirn in C.C.No.2140 of 2023 on the file of the learned ll Additional Chief t\4etropolitan Magistrate at Nampally Hyderabad, The offence irlleged against the petitioner is under 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 behall'of the respondent No 2. Perused the material available on record. 03 The brief facts of the prosecution case are that the accused No.1, the brother of the respondent No.2 and a natrve of Rajasthan State, was addicted to vices such as smoking and constming ganja and, for his lavish expenses, indulged in property offences, ln 201g, after his release from lail, he came to Hyderabad on the direclions of his parents and started residing with the respondent No.2, workinl; ;ls a Salesman in his cloth shop without berng paid any salary. During visits to his brother- 2 in-law at Bangalore, the accused !o.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 comrnit theft from the respondent No 2's shop. ln execution of the plan, the pccused 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 censtable, came to Hyderabad and stayed at an OYO hotel. On the nig$ oI 27.07.2022, the accused Nos.2 and 3, being experts i n burglary, entdred 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.1,0 d 000/- Subsequently, the accused No.1 moved to Goa, where he worked at a Kirana and General store owned by one Satish Kumar. Talting advantage ,of Satish Kumar's absence during a medical visit, the accused t',lo.l catteO the accused No.2, and together they stole gold onnaments, which were handed over to the petitioner-accused No.5, who disposed of some items and concealed the remaining in the da hboard of a vehicle, which is the I I subject matter of Crime No.210 of 022 ot Panaji Police Station, Goa Thus, the accused Nos.1 to 4 cornmitted offences punishable under Sections 457 and 380 of lPC, and the petitioner-accused No.5 committed an offence under Section 41 1 of IPC 3

04. Learned counsel for the petitioner submils that the petitioner- accused No.5 has no manner of involvement in the alleged offence. lt is further submitted that there is no recovery of any s;tolen property from the possession of the petitioner-accused No.5. Morecver, 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 c,ffence punishable under Section 411 IPC

05. With the above submissions, while praying to quash the criminal proceedings against the petitioner-accused No.5, he relied upon a decision of Honourable Supreme Court in Hiralal Babulal Soni v. The State of Maharashtra and othersl wherein at Paragraph Nos.31 to 37 held that t "31. Similarly. the High Court imptiedly hetd that wrtnesses connected with lvl/s CN have failed t,t identify the seized gold However. in the opinion o.r the High Court, the same rs not relevant because the apoe>llant has failed to prove lawful acquisition of gold. lAre fait to understand, when the prosecution has failed tct prove the identity of seized gold as being the same gold vrltich were sold by M/s CN to M/s Globe lnternationat, how the appellant is liable to prove lawful acquisition of g,tld vis-a_ vis the stolen gold. ' ern zozs sc r 5zz 4

32. ln order to bring home thq charge under Section 411 of the lPC, it is the duty of the prosecution to prove (i) that the stolen property was in the possesslon of the accused; (ii) that some persons othgr than the accused had possession of the property before the accused got possession of it and (iii) that tlpe accused had knowledge that the property was stolen firoperly (See: 'Trimbak vs State of M.P'- AIR 1954 SC 39/.

33. ln "Mohan Lal vs. Sfafe of Maharashtra"G, this Court held that the prosecution has to prove that the accused was in possession of propefl which he had reason to believe that it was stolen property.

34. ln "Shiv Kumar vs. Sfafe of M.P."7 this Court reiterated fhe essenfra/s of tha,offence under Section 41 1 of the IPC: "9. Assailing the legdlity of thp OuiltV verdict against the appellant, Mr Lav Kumar Ag4awal, the learned counsel would submit that the essenfia/ ingredients of Section 411 IPC offence are not at all made ouf as the prosecution has failed to adduce any eyidence to shqw that the accused had knowledge that the seized artieles were stolen from the looted truck. lt is. therefore, argued that unless the knowledge of the accused on the nature of the afticles sold by them is established, his conviction under Secfron 411 IPC cannot be sustained in law. 13. ln this case, although reqovery of items was made, the prosecution must further estab/ish the (1979) 4 SCC 751 (2022) 9 SCC 676 essenlial ingredient of knowledge of the appellant that such goods are stolen propefty Reliance solely upon the disclosure statement of accused Raju alias Rajendra and Sadhu alias Vijaybhan Singh will for the conviction under not othenuise be clinching, Secfion 411 IPC ) J 1 i l 5

16. To establish that a person is dealing with stolen propefty, the "believe" factor of the person i:; of stellar ,, import. For successful prosecution, it is not e,tough to prove that the accused was either negligent o: that he had a cause to think that the property uzas sto/err, or that he failed to make enough inquiries to comprenend the nature of the goods procured by him. The initial possession of the goods in question may not be, iitegat but retaining those with the knowledge that it was stolen property, makes it culpable. 17. ... . ......Moreover, the appeltant in usual course, sold utensils in his shop and nothing is unnatural about him possess,ng such household aftictes, as seDed f,.om him.,,

35. When the pre-requisite evidence to bring home the charge under Section 411 of the tpC is conside,red in the present case, even if it is proved that the appeltant was handed over the demand drafts by Mr. Mukesh Shah and gold bars were purchased by the appeilant front .\tl/s. CN and M/s. V.B. Jewetters, sfr// it was necessaty for the prosecution to prove that the appeltant e,;tt,er had knowledge or reason to believe that the demttndtdrafts had been obtained through fraudulent process to rhake the gold bars as stolen property in the han<ts of the appellant or that the appeilant was part of the cctnspiracy. Moreover, the appeilant has not been charged and tried for the first paft of the offence retating to ,:riminal con spi racy vls-ai-vis frau d u te nt TTs

36. Yet another aspect of the case which needs consideration is invocation of Section 106 of the Evidence Act by the couris below. under Section 105 of the Evidence Act if certain facts are estabtished, a rea:;onable inference can be drawn regarding existence ctf ceftain other facts which are within the spZciat knowled,get of the accused On this, we may profitably refer to thi.s Court,s ludgment in "Nagendra Sah vs State of Bihaf, 6 'dtiscnarge "22. Thus, Secflon 106 of the Evidence Act will apply to ;;;"; where the proseculion has succeeded in ;;; 'riiZitiiiii the facts from which a reasonabte inference ""Zi"i" aii, regarding the exbtence of ceftain other rili"" *iii"n are'withii the spdcial knowledge of the 'ii"u"id - wn", the accused fails to offer proper exolanation about the existence of said other facts' the ;';r,;;, always draw an appropriate inference' 23. When a case ts resflng on c(cumstantial evidence' if the accused fails to offer a repsonable explanation in of burden (2021) 10 SbC IZS ptaced on him by virfue if Section 106 of the Evidence Act' such a failure may provide an additionat tink to the chain of circumstance.s./nacasegowrnedbycircumstantial evidence, if the chain of circumqtances which is required to be estabtished by the proseqution is not esfab/lshed' the faiture of the accused to didpharge the burden under -iic,tion 106 of the Evidence Act is not relevant at all' Whenthechainisnotcomplete,fatsityofthedefenceis no ground to convict the accused' 37. Signiftcantly, the TrialCourt has held that.in para 115 that the prosecution ought to hlve produced evidence to show that there was a stocX of the same brand with M/s' bars with mirkings of CN and out of that "* "o*"'gold Harmony Suisse, Johnson Mathew' Arya were so/d to M/s. Gtobe lnternational ln the' absence of thrs evidence and especially due to delay of four years in the recovery of the properly the very basrs @f its identification is found shattered, and the possibitity of mistaken identification cannotberutedout.WithtnisrinaingoftheTrialCourt, invocation of Section 114 of the Evidence Act is not at all ptermissible since the prosecution has..failed to discharge its initial burden. The weakness in the defence or t!e- appeltant's failure to substanti4te the fact while answenng question (no.133) in his apcused. statement cannot become the strength of the plgsecution' The prosecution 7 has fo prove its case beyond all reasonabte' doubts by positively completing the chain of circumstance,s agarnsf the appellant, which the prosecution has utterlv failed in the present case."

06. Learned Assistant Public Prosecutor for the State- respondent No.1 submitted that there are specific allegations against the petitioner and the truth or othenivise would come out only after conducting trial by the concerned Court and prayed to dismiss the Criminal Petition

07. ln view of the facts and circumstances of the case, it is relevant to extract Section 411 of lPC, which reads as under: "411 Dishonestly receiving stolen propefty- Whoever dishonestly receives or retains any stoten propefty, knowing or having reason to betieve the sanrc to be stolen property, shatt be punished with impris;o.thent of either description for a term which may extend to three years, or with fine, or with both "

08. On a plain reading of Section 411 lpc, ir: is evident that the provision pertains to the offence of dishonestly 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 fall within the definition of ,,stolen property ,, lt is further required that, at the time of receiving or retairrirrg such property, 8 the accused had knowledge or reasgn to believe that the property was stolen. Mere possession of the property, without such knowledge or belief, would not attract the penal qonsequences contemplated under Section 411 IPC

09. A careful scrutiny of the charge sheet discloses that the accused Nos. 1 to 4 are alleged to hpve committed theft in the shop of the respondent No.2 The only allQgation attributed to the petitioner- accused No.5 is that, on his advice, the other accused came to Hyderabad and stayed at an OYO hptel prior to the commission of the theft. The remaining allegations aqainst the petitioner-accused No.5 admittedly form the subject matter qf Crime No.210 of 2022 of Panaji Police Station, Goa. It is of significqnce to note that the charge sheet, purportedly based on a thorough investigation, does not indicate I recovery of any stolen property fron]r 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 investigalion and the contents of the charge sheet appear to rest solely upon such confessional statements of the co- accused. However, reliance on the confessional statements, being inadmissible in evidence under Sgct 25 and 26 of the lndian Evidence Act unless recorded before a f\4agistrate under Section 164 of ( 9 the Code of Criminal Procedure, cannot form the basis of the prosecution. ln the absence of legally admissiltk: and substantive material, the implication of the petitioner-accused No.5 under Section 411 IPC does not, prima facie, stand established '10 ln view of the aforesaid discussion, takin,S into account the facts and circumstances of the case and the settled principles of law laid down by the Hon'ble Supreme Court of lndia, t.rirs Court is of the considered opinion that, as the petitioner-accused Nr.5 was not found in possession of any stolen property, the essential ingredients necessary to constitute the offence under Section 4ii lpc are rot attracted ln the absence of such foundational ingredients, the conl.iruatron of criminal proceedings against the petitioner-accused No 5 vrrolld amount to an abuse of the process of law. Accordingly, the c.irnihal proceedings against the petitioner-accused No 5 are liable to be quashed. Therefore, the criminal proceedings against the petitioner-accust.'d No.5 are liable to be quashed. 11 Accordingly, the Crrminal Petition is allowe,l and the criminal proceedings against the petitioner-accused No.5 in C C; No 2140 of 2023 on the file of the learned ll Additional chief Metropol tan Magistrate at Nampally, Hyderabad, are hereby quashed. \ 10 i" As a sequel, pending miscell4neous applications, if any, shall stand closed. AS t SD/- B REKHA RANI ISTANT REG]STRAR //TRUE CdPY SECTION OFFlCER To,

1. The llAdditional Chief Metropolitan Mpgistrate at Nampally, Hyderabad 2. The station House Officer. Sultan Ba+r Police Station, Hyderabad 3. Two CCs to the Public Prosecutor, Hig[ Court for the State of Telangana at Hyderabad (OUT)

4. One CC to SRI BUYYANKAR KRISHN 5. Two CD Copies KARTHIK, Advocate IOPUC] n AD o. r{ L\ .__,,==ai.-a.Dili+. 'a\ \\, i-''r ,t- ,19 -*. r 4 s[e 206 ,i ij .{'.,., 'i \ a?f,s1-.-.;"q, -sj '^.:..-.. -:. - . -: ' t HIGH COURT DATED:0410912025 ORDER CRLP.No.12634 ot 2024 ALLOWING THE CRLP a