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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: VISHWANATH TUKURAM UMALE & ORS.

DATE OF JUDGMENT02/08/1979

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. SARKARIA, RANJIT SINGH REDDY, O. CHINNAPPA (J)

CITATION:  1979 AIR 1825            1980 SCR  (1) 120  1979 SCC  (4)  23

ACT:      Railway Property  (Unlawful Possession) Act, 1966-S. 3- Conviction under-  "Possession of  property need  not  be  a subsisting possession"  -Sufficient  if  accused  proved  to "have been in possession" of property at any point of time.      Indian penal  Code-S. 379-Transfer of possession of the property however   transient,  an essential ingredient of an offence of theft,

HEADNOTE:      Section 3 of the Railway Property (Unlawful Possession) Act,  1966  provides  penalty  for  unlawful  possession  of railway property,  the essential  requirements being (1) the property in  question should  be  railway  property  (2)  it should reasonably  be suspected  of having  been  stolen  or unlawfully obtained  and (3)  it should  be found  or proved that the  accused was  or had  been in  possession  of  that property. The  prosecution alleged  that  accused  1,  2,  5 (respondents) and  the other  absconding accused  had stolen tyres and  tubes from  a  railway  wagon  in  transit,  that accused 1  sold them  to accused  3, who removed them in his motor lorry.  The prosecution further alleged that accused 3 produced some  tyres from  his lorry  but sold the remaining tyres  to  accused  4.  They  were  later  seized  from  his possession.  The   prosecution,  therefore,  contended  that accused 1,  2, 5  and the  absconding accused were proved to "have  been   found  in   unlawful  possession   of  railway property", while  accused 3  and 4  were found  in "unlawful possession thereof"  within the  meaning of section 3 of the Act.      The trial  magistrate refused  to frame  a charge under section 3  against any  of the  accused but  framed  charges under sections  379, 461  and 411  of IPC  against  all  the accused. The  State’s revision  application was  rejected by the Additional  Sessions Judge.  The High Court held that it was not  necessary to frame the charge under s. 3 of the Act against accused  1, 2,  S and  the absconding accused but it however, directed  that a charge under that section might be framed as  an alternative  charge only against the accused 3 and 4.      The prosecution  evidence had not been recorded. On the

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question whether  on the allegations made by the prosecution there was  justification for  framing a charge under s. 3 of the Act  against the  accused 1.  2, S  and  the  absconding accused, ^      HELD: 1.  The question  before the Court was whether it could be  said that the accused were found or were proved to have been  in possession  of the  railway property.  It  was permissible for  the prosecution  to establish,  either that the accused  were "found" to be in possession of the railway property, or  that  they  were  proved  "to  have  been"  in possession thereof.  As accused  1. 2,  S and the absconding accused were  not  "found"  in  possession  of  the  railway property, it  was permissible  for the prosecution to allege and prove  that they had been in possession of that property in order to attract the application of sec. 3 . 11 93E-F] 191      2. In  view  of  the  categorical  allegations  against accused 3  to 4 the High A Court was right in directing that they should be charged for an offence under 8. 3 of the Act. [193H]      3.  The   allegation  against   accused  1,  2,  5  and absconding accused  was that  they had  removed the tyres by breaking open  the wagon.  It is  an essential ingredient of the offence  of "theft"  that the movable property which was the subject matter of the theft should have been "moved" out of the  possession of  any person  without his consent. This could be possible only if the person moving the property had taken it  out of  the possession of the person concerned and transferred it  to his  own possession  for the  purpose  of taking it  dishonestly. Therefore, transfer of possession of the property,  however transient  is an essential ingredient of an offence of theft. The allegation against accused 1, 2, 5 and  the absconding  accused was  therefore to  the effect that they  "had been  in possession" of the railway property in  question,   and  that  was  sufficient  to  attract  the application of s. 3 of the Act. [194 B-D, F]      4. The  High Court erred in taking the view that it was necessary for  the purpose  of bringing a case under s. 3 to prove that the accused were found to be in possession of the railway property  at the   time  of its seizure, and that it would not be attracted in the case of an allegation that the railway property  was the subject matter of dacoity or theft by the  accused. The High Court was wrong in holding that s. 3 of the Act was meant to meet a situation "analogous to the one for meeting of which s. 124 of the Bombay Police Act has been enacted." Unlike s. 3 of the Act, that section does not go to  the extent  of penalising  the accused  where  he  is proved to  "have been found in possession’ of that property. [194G-195A]      5. Although  the gravamen  under s.  3 of  the  Act  is "possession" of  the property,  it need not necessarily be a subsisting possession.  It is  sufficient if the accused was proved to  "have been in possession" of that property at any point of time. [195A]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No 51 of 1973.      Appeal by  Special Leave  from the  Judgment and  order dated 30-11-  1972 of the Bombay High Court in Crl. Revision Application No. 701 of 1972.      N. M. Phadke and M. N. Shroff for the Appellant.

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    Mrs. Urmila Kapoor, Amicus Curiae for the Respondents.      The Judgment of the Court was delivered by      SMINGHAL J.,  This appeal  by special leave is directed against the judgment of the Bombay High Court dated November 30, 1972,  Upholding the  view of  the trial  court and  the Additional  Sessions  Judge  of  Jalgaon  that  it  was  not necessary to  frame a  charge under section 3 of the Railway Property (Unlawful Possession) Act, 1966, hereafter referred to as the Act, against accused 1, 2, S and the absconding ac 192 cused, and directing that a charge under that section may be framed as  an alternative  charge only against accused 3 and 4. The  State of  Maharashtra feels aggrieved because of the failure to  frame a  charge under  the aforesaid  section  3 against the accused mentioned above.      It was  alleged that  seven tyres  and seven tubes were booked from Wadi Bunder goods shed of the Central Railway on March 20,  1971, in wagon No. WR 35775. The seven tyres were stolen by  accused 1,  2, 5 and the absconding accused, from the Down  Yard of  the Bhusawal  railway  station  while  in transit, and  were kept in the hut of Ragho Motiram Birhade. Accused 1  sold seven tyres to accused 3 for Rs. 2700/-, and accused 3  removed them  in his  motor-lorry  to  Savda.  He produced four  tyres from  his lorry,  but three  tyres were found to  have been  sold the accused 4 and were seized from his possession.  It was  therefore specifically alleged that accused 1,  2, S  and the  absconding accused were proved to "have been  found in  unlawful possession"  of  the  railway property while  accused 3  and  4  were  found  in  unlawful possession thereof  within the  meaning of  section 3 of the Act. The  trial magistrate however refused to frame a charge under that  section against  any of  the accused  and framed charges for  the commission  of offences under sections 379, 461 and  411 I.P.C.  against all the accused. The State felt aggrieved and  applied for  a revision of that order, but it was upheld  by the  Additional Sessions  Judge, Jalgaon,  as mentioned above.  We have  made a  mention of the view which was taken  when the  matter went  up to  the High  Court  in revision.      It is  not in controversy before us that in the absence of the  evidence of  the prosecution,  which has still to be recorded, the  case has  to be  examined on the basis of the allegations  mentioned   above,  and   the  short   question therefore is  whether they  justify the  framing of a charge under section  3 of  the Act against accused 1, 2, S and the absconding accused.      Section 3  which  provides  the  penalty  for  unlawful possession of rail way property reads as follows:-           "Whoever is  found or  is proved  to have  been in      possession of any railway property reasonably suspected      of having  been stolen  or unlawfully  obtained  shall,      unless he  proves that  the railway  property came into      his possession lawfully, be punishable-           (a)  for the first offence with imprisonment for a      term which  may extend  to five  years or with fine, or      with both  and in  the absence  of special and adequate      reasons to be 193      mentioned  in   the  judgment   of  the   Court,   such      imprisonment A shall not be less than one year and such      fine shall not be less than one thousand rupees;      (c)  for the  second  or  a  subsequent  offence,  with      imprisonment for  a term which may extend to five years      and also  with fine  and in  the absence of special and      adequate reasons to be mentioned in the judgment of the

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    Court, such  imprisonment shall  not be  less than  two      years and such fine shall not be less than two thousand      rupees." The essential requirements of the section therefore are that (i) the  property in  question should  be railway  property, (ii) it should reasonably be suspected of having been stolen or unlawfully  obtained, and  (iii) it  should be  found  or proved that  the accused  was or  had been  in possession of that property.  It is  not in  dispute before  us  that  the property in question was railway property within the meaning of section 2(d) of the Act. It is also not in dispute before us that  it was reasonably 1 suspected of having been stolen or unlawfully  obtained. It  is, not disputed therefore that two of  the three  essential requirements  of section 3 were shown to  exist at the time when the question of framing the charge  came   up  for  consideration.  The  question  which remained for  consideration was’  whether it  could be  said that the  accused were  found or were proved to have been in possession  of   the  railway  property.  It  was  therefore permissible for  the prosecution  to establish,  either that the accused  were "found" to be in possession of the railway property, or  that they  were  provide  "to  have  been"  in possession thereof.  As accused  1, 2,  S and the absconding accused were  not  "found"  in  possession  of  the  railway property, it  was permissible  for the prosecution to allege and prove that they had been in possession of that property, in order to attract the application of section 3. .      As has been mentioned, the allegation against accused 3 was that he purchased the seven tyres from accused 1 for Rs. 2700/- and  removed them in his motor-lorry to Savda. It was further alleged  that accused 3 produced four of those tyres from his  motor-lorry and  the three  remaining  tyres  were found to  have been  sold to  accused 4 and were seized from the possession.  In  view  of  this  categorical  allegation against accused  3 and  4, the  High Court  rightly directed that they  should be charged for the offence under section 3 of the  Act also. The appellant State has no grievance in so far as  that direction  of the High  Court is concerned. Its grievance is  that the High Court has taken the view that it was sufficient to frame charges under sections 379/34 and 194 461/34 I.P.C.  against accused  1, 2,  5 and  the absconding accused as  in its  view the allegation against them did not attract the application of section 3 of the Act.      It has  to be  appreciated that  the allegation against accused 1, 2, S and the absconding accused was that they had removed the  seven tyres  from the  Down  Yard  at  Bhusawal railway station by breaking open the wagon. That was in fact the reason  why they  were charged  for  the  commission  of offences under section 379, 461 and 411 I.P.C. It is however an essential  ingredient of  the offence of "theft" that the movable property  which was  the subject matter of the theft should have been "moved" out of the possession of any person without his  consent. As  is obvious, that could be possible only if  the person  moving the property had taken it out of the possession of the person concerned and transferred it to his own  possession in  order to  move it for the purpose of taking  it   dishonestly.  It   follows  that   transfer  of possession  of   the  property,  however  transient,  is  an essential ingredient of an offence of theft.      It was  clearly alleged in this case that accused 1, 2, S and  the absconding  accused committed  theft of the seven tyres by  removing them  from the  wagon in the Down Yard of railway station  Bhusawal. So  when it  was alleged that the accused were  responsible for the removal of those tyres, it

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was thereby  alleged that  they had  been in  possession  of those tyres  for some  period of time, even if it is assumed that they  parted with them later on and left it for accused 1 to  sell them to accused 3. The allegation against accused 1, 2,  5 and  the absconding  accused was  therefore to  the effect that  they ’  had been  in possession" of the railway property in question, and that was sufficient to attract the application of section 3 of the Act. The High Court erred in taking the  view that  it was  necessary, for the purpose of bringing a  case under  that  section,  to  prove  that  the accused were  found to  be  in  possession  of  the  railway property at  the time  of its seizure, and that it would not be attracted  in the  case of an allegation that the railway property was  the subject  matter of dacoity or theft by the accused. The  High Court  in fact  went  to  the  extent  of upholding the  argument that  section 3 of the Act was meant to meet  a situation  "analogous to  the one  for meeting of which  section  124  of  the  Bombay  Police  Act  has  been enacted." That  section relates to possession of property of which no  satisfactory account is given by its holder. It is therefore   the failure to account for the actual possession of the property found in the possession of the accused which constitutes an  offence under  section  124  of  the  Bombay Police Act. Unlike section 3 of the Act, 195 that section  does not  go to  the extent  of penalising the accused where  he is  proved to "have been in possession" of that property.  It is  true that the gravamen of the offence under section  3 of  the Act  is  the  "possession"  of  the property, but  it  need  not  necessarily  be  a  subsisting possession, and  it is  sufficient if the accused was proved to "have  be in possession" of that property at any point of time.      In the  view we  have taken, the appeal is allowed, the impugned judgment of the High Court dated November 30, 1972, is set  aside, and  the trial  court is  directed to frame a charge under  section 3  of the  Act against accused 1, 2, 5 and the  absconding accused  in addition to the charge under sections 379/34  and 461/34  I.P.C. The accused are directed to appear in the trial court on September 3, 1979. The trial of the  case has been considerably delayed and it should now proceed with expedition. N.V.K.                                       Appeal allowed. 196