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Criminal Revision No. 751 of 1960, decided on 21st April 1961.
Penal Code (XLV of 1860),
S. 411‑Retaining stolen property‑Continuous offence‑Acquittal of accused in previous trial no bar to his subsequent prosecution in respect of greater number of articles though these might have been received at same time as those in question in previous trial‑Criminal Procedure Code (V of 1898), 5.403.
Yamanappa Joteppa v. Emperor 48 Cr. L J 873 rel.
Hayat v. Emperor A I R 1928 Lah. 637; Jalal v. Emperor A I R 1932 Lah. 6 5; Masirali and others v. Abdul Mamith (1956) 8 D L R 634; Emperor v. Sheo Charan I L R 45 All. 485; King‑Emperor v. Bishun Singh I L R 1924 Pat. 503; Sambasivan v. The Public Prosecutor, Federation of Malaya 54 C W N 695 and Dadlomal and others v. Emperor 27 Cr. L J 1256 ref.
Serajul Huq for Petitioner.
Aminul Islam Chowdhury for the State.
The Revision is directed against the judgment and order of Mr. S. K. Roy Sardar, Additional Sessions Judge, Bogra dated 13th September 1960, rejecting the petition of the petitioner for quashing G. R. Case No. 410‑G of 1960 pending in the Court of Mr. T. U. Khan, Magistrate, First Class, Bogra.
2. The facts as disclosed in the petition are that the petitioner's house was searched by the police officers on 21st April 1960, in pursuance of an investigation with regard to two information lodged in Adamdighi police station by two com plainants for theft for several articles on 9th April 1960, and 4th April 1960 respectively.
3. That certain articles including a cycle and other articles were recovered by the police from the outer house of the joint family of the petitioner. A charge‑sheet under section 411 of the Pakistan Penal Code was submitted against the petitioner for retaining a cycle only which the prosecution alleged to be stolen property on 22nd May 1960, in G. R. Case No. 421 of 1960.
4. That another charge‑sheet was submitted on 29th April 1960 under section 411 of the Pakistan Penal Code for retaining 22 gramophone records and one Singer Machine alleged to have been recovered along with the cycle and other articles. The two cases were numbered as G. R. Case 421 of 1960 and Case No. 410 of 1960 respectively. Case No. 421 of 1960 was with regard to the recovery of a cycle only and was tried in the Court of Mr. K. M. Solaiman, Magistrate, First Class, Bogra. The petitioner was convicted for retaining the stolen property, namely, the cycle under section, 411 of the Pakistan Penal Code by the said Magistrate. The petitioner was, however, acquitted by the appellate Court.
5. That after the conclusion of the trial of Case No. 421 of 1960 the petitioner filed a Revisional application before the Additional Sessions Judge, Bogra ‑to quash the pro ceedings of Case No. 410 of 1960 with regard to other properties recovered on the same date along with the cycle, the property of the previous case. The revisional application under section 438 of the Code of Criminal Procedure was filed after the prosecution evidence was completed in the latter Case No. 410 of 1960 before Mr. T. U. Khan Magistrate, First Class Bogra who after recording the prosecution evidence framed a charge under section 411 of the Pakistan Penal Code for retaining a Singer Machine and some gramophone records.
6. That the prosecution did not offer to show that the accused received those items of property on different dates and occasions but based their two cases simply on the single fact of recovery in one transaction, namely, the search made on 21st April 1960 when all the articles were recovered. The petitioner filed the revisional application to quash the second trial, Case No. 410 of 1960 on the ground of double jeopardy for self‑same offence arising out of one transaction.
7. That the learned Additional Sessions Judge in rejecting the petition observed that "there is nothing before me to say that the alleged stolen properties were not received by the accused at one and the same time".
8. That the petitioner's defence was that the outer‑house was jointly owned by all the members of the family and situated at a distance from the dwelling house. Further that the petitioner started many theft cases against some suspicious characters of the locality and it was possible that they might have planted these articles in his outer‑house only to harass the petitioner.
9. Mr. Serajul Huq, learned Advocate appearing for the petitioner has pressed ground No. 1 of the petition which is as follows :‑
"For that the fresh trial on the same offence is illegal under section 403 of the Criminal Procedure Code in view of the previous acquittal for the same offence, and the learned Judge errea in law not recommending quashing of the trial of the Bogra G. R. Case No. 410 of 1960."
Mr. Serajul Huq before developing his argument has read out section 403(1) of the Code of Criminal Procedure :‑
"A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remain; in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 for which we might have been convicted under section 237.
Mr. Serajul Huq has also pressed the inter‑related grounds No. 3 and 4 of the petition which are as follows:
"For that the trial of the accused petitioner for retaining certain alleged stolen articles bars a second trial of the accused in respect of other stolen articles found in his possession on the same date."
"For that the prosecution did not offer to show that the different articles which were the subject of charge in two trials were received at different times, as such the pending trial is liable to be quashed."
10. Mr. Serajul Huq has further cited the decision in Hayat v. Emperor (A I R 1928 Lah. 637), in which it was held that "a person who is found in possession of properties identified as belonging to different owners should not be convicted of several offences of receiving in respect of the property identified by each owner unless the prosecution proves that they were received by him at different times. It is not for the accused to prove that the act of receiving was only one". That is a Single Bench decision of Addison, J.
11. He has next cited the decision in Jalal v. Emperor (A I R 1932 Lah. 615), again a Single Bench decision in which it was held that where there is no proof whatsoever that the accused had received the proceeds of five different thefts on five different occasions and on the other hand it was more like likely that the thief or thieves may have passed on the stolen property to the accused at one and the same time, the accused cannot be convicted under five separate challans for the offence of being in possession of stolen property under section 411 of the Pakistan Penal Code.
12. He has next relied on the decision in Masirali and others v. Abdul Mamith ((1956) 8 D L R 634), a Division Bench decision of this Court in which it was held that when after a full trial a Magistrate acquits the accused of the offence of theft under section 379, he cannot be tried again for decoity on the same facts without setting aside the acquittal in accordance with the provisions appropriate to the purpose.
13. Held also that under subsection (1) of section 403, Criminal Procedure Code, when a person has been once tried by a Court of competent jurisdiction for an offence, and has been convicted or acquitted of such offence, he cannot, so long as such conviction or acquittal remains in force, be tried again for the same offence nor on the same facts for any of the offences for which a different charge might have been made him under section 236, Criminal Procedure Code, or for which he might have been convicted under section 237, Criminal Procedure Code.
This case is not very much to the point inasmuch as the question was as to whether when on the same facts accused was once acquitted of the charge under section 379, he could be tried again for dacoity.
14. Next decision cited is that of Emperor v. Sheo Charan (I L R 45 All. 485), a Division Bench decision of 1923 in which it was held that a person found in possession of stolen property identified as belonging to different owners cannot be convicted of several offences of receiving in respect of property identified by each owner, unless there is evidence to prove that they were received by him at different times.
15. This case seems to be a case of quashing a pending proceeding though it is not clear from the petty judgment of two pages.
16. The next decision cited is that of King‑Emperor v. Bishun Singh (I L R (1924) 3 Pat. 503), which is again a Division Bench decision of which the facts and decisions are as under: --‑
"In the house belonging to L and B, two brothers, three items of stolen property were discovered, namely, a quantity of unused postage stamps, some carpets and some buckets and padlocks. The police sent up the accused under three charge sheets. There was no evidence to show that the stamps and carpets had been received by the brothers on different dates. The latter were tried under section 411, Penal Code, on a charge of dishonestly retaining the carpets, L being acquitted and B convicted. Proceedings against L and B were also instituted under section 411, in respect of dishonest retention of the stamps. The accused pleaded that as the stamps had been discovered at their house on the same date and at the same place as the carpets only one offence in respect of these two items of property had been committed and that as they had already been tried in respect of the carpets they could not be tried in respect of the stamps. The trial Court accepted this plea and acquitted the accused‑--
Held, on appeal by the Crown, that the accused had been properly acquitted."
17. He has next cited the decision in Sambasivam v. The Public Prosecutor, Federation of Malaya (54 C W N 695), a Privy Council decision in which it was held inter alia that the effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not only that the person acquitted cannot be tried again for the same offence but that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
18. The maxim "res judacata proveritate accipitur" is no less applicable to criminal than to civil proceedings. This was really a decision on the effect of acquittal on retrial when the charges were inter‑connected and as such not quite to the point.
19. Mr. Amirul Islam Choudhury, learned counsel appearing for the State has relied on the decision in Dadlonnul and others v. Emperor (27 Cr. L J 1256) a decision of two Judges in which it was held as follows :‑
"Where property is stolen at different dates, the presumption is that the property passed from the hands of thief to the receiver of the stolen property at different dates and the burden is shifted from the Crown to the accused to prove that it passed to him at one and the same time.
In the absence of such proof, a subsequent trial in respect of different items of property stolen on a different date is not barred by the provisions of section 403, Cr. P. C. by reason of a prior acquittal with regard to another item of property."
20. The cases as cited above by the learned Advocate for the petitioner with the exception of the Sind case cited by the learned counsel for the State seems to lay down that on a charge of receiving stolen property recovered on the same date from the possession of the accused, no matter how various those articles, how different are the owners, there could be one and only one trial that the acquittal or conviction in one case acts as a bar, to the subsequent trial ; that the onus is on the prosecution to show that the stolen properties were received on different dates and not all together on the same date. In other words, seizure and recovery on the same date will act as a bar to subsequent trial unless it is proved by the prosecution that the articles were received on different dates by the accused.
21. The Sind decision, that of 27 Criminal Law Journal, 1256, raises the presumption against the accused when property is stolen at different dates. The presumption in such a case would be that accused received the properties on different dates and the burden is shifted to the accused to prove that it passed to him at one and the same time.
22. This decision has not found approval, it seems, with the other High Courts.
23. In the case before us we find that in the previous cast, namely, No. 421 in which the accused was acquitted the com plainant is dated 6th April 1960, by Fazlur Rahman submitted on 9th April 1960. Theft was stated to be of Hercules cycle, paddy and pair of old shoes on the night of 2nd April 1960. Cycle only was recovered on 21st April 1960 from the possession of the accused. The charge‑sheet was submitted on 22nd May 1960 and the charge is dated 27th June 1960. The petitioner was the only accused.
24. In the case sought to be quashed, that is No. 410 of 1960, the complainant is a different person, Efazuddin and the complainant is dated 4th April 1960, two days earlier than the other one, though filed on the same date as in the other one, namely, 9th April 1960.
25. The theft is stated to have taken place on 3rd April 1960 and the subject‑matter of theft according to complaint was cycle, gramophone records, Singer machine and other articles: Those were recovered on the same date viz., 21‑4‑60. Charge sheet was submitted in this case on 29th April 1960 and the charge is dated 25‑7‑60. Further in the present case as many as eight persons including the petitioner were made accused on the charge under section 411 of the Pakistan Penal Code and the articles have been alleged to be of different persons though mostly of Suklal Agarwala P. W. 4 in the case.
26. Recovery by the police in both cases, it appears, was on (he same date although the theft were of different dates and the articles belonging to different persons. The charge in both cases was that be dishonestly retained on 21‑4‑60.
27. It is possible that in course of the same date 21st April 1960, the police made two drives, but that is not clear from the evidence. The evidence in the two cases only states that police recovered on 21st April 1960. The mere fact that there were two thefts, one on 2nd April 1960 and the other on 3rd April 1960 and these in different houses, does not necessarily prove that petitioner received them on different dates.
28. In the light of the decisions advanced by the defence the onus is heavily on the prosecution to prove that the receiving was on different dates, a task which I should say has not been fulfilled by the prosecution and indeed very difficult to achieve.
29. The charge in both the cases, however, is directly that of the accused, dishonestly retaining stolen properties and the word received is not there. Further the present proceedings being against several other accused also, the question of quashing the whole proceeding does not arise.
30. Retaining an article of stolen property being a continuing offence, the acquittal of the present petitioner in the other case has not created a bar to the present proceedings in respect of a greater number of articles belonging to a different person.
31. My present view is supported by the decision in Yamanappa Joteppa v. Emperor (48 Cr. L J 873), a Division Bench decision of the Bombay High Court in which it was held that retaining stolen property is a continuing offence and if an accused is previously acquitted of an offence of retaining articles of stolen property, subsequent prosecution under section 412 in respect of greater number of articles is not barred though they might have been received at the same time as those in question in the previous trial.
32. No decision has been cited at the bar to show that this distinction between "retaining and "receiving" is not well‑founded.
33. It may be mentioned here as pointed out by the learned counsel for the State that none of the cases cited on behalf of the defence except perhaps faintly the decision in I L R 45 All. 485 relates to quashing a pending subsequent trial.
34. Further the charge‑sheet and the charge in the other case shows that on 21st April 1960 only one Hercules cycle was recovered from the possession of the petitioner while the charge sheet and the charge of the present pending case shows that the Singer machine and gramophone records were recovered from the petitioner on 21st April 1960 same day indicating that there were two occasions of search in course of the same day and in one of the occasions only the Hercules cycle was found in possession of the petitioner and on the other occasion the Singer machine and the gramophone records were so found. This is, however, not very clear from the evidence as stated before.
In any view of the case, therefore, the petition is bound to fail.
The Rule is, therefore, discharged and the stay order is vacated.
K. B. A.
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