Dishonest intention is an essential ingredient of the offence of theft under Section 379 I. P. C. The burden of proving dishonest intention lies on the prosecution.

JAGANMOHAN REDDY, J.

( 1 ) THE facts of this case are somewhat interesting in that the accused one Dr. P. Ramachandra Reddy of Nellore took part in some food prices agitation and was rounded up along with, others on 31-12-1958 and was taken away in a Police lorry to Gudur. At about 3 p. m. , when the Police lorry reached the Police Station at Gudur which is situated in Taluk Office compound, the accused, it is alleged, jumped out of the lorry, took a cycle which was near by and went away. The cycle belonged to a Police Constable, Ghouse Moinuddin of Gudur town, and it is said, that his wife lent it to another person Shiek Mastan Saheb for changing some yellow coins at the Treasury. The cycle was later found by P. W. 8 at the house of Dr. Jai Ram to which place the accused had gone.

( 2 ) THE learned Magistrate perused the documents under Section 173 Cr. P. C. as required under the amended Section 251-A and came to the conclusion that "the intention of the accused at the time of taking the cycle was not dishonest" and, therefore, he discharged the accused under Section 251-A (2 ). Against that order the State filed a revision before the Sessions Judge, who directed the Judicial Dist. Magistrate, Nellore to hold further enquiry either by himself or by any magistrate subordinate to him. The reasons for arriving at that conclusion appear to be that, the lower Court should not have held that the charge was groundless because the respondent having stated the peculiar circumstances under which he took away the cycle, it was for him to prove the circumstances, and that without recording the evidence the lower Court should not have considered that the statement given by the respondent was absolute truth. He however observed that the ruling of the Chief Court, Oudh in Rameswar Singh v. Emperor, 37 Cri. LJ 456 cited by the learned Magistrate, was not applicable to the case on hand, because, in that case it was proved to the satisfaction of the Court that the accused had no intention to cause wrongful gain to himself and the owner of the property had not complained that any wrongful loss was caused to him.

( 3 ) IT was contended by the learned Advocate for the revision petitioner that the essential ingredient to constitute an offence under Section 379 I. P. C. viz. , "dishonest intention" has not been established and that the Sessions Judge was wrong in directing an enquiry merely on the ground that no evidence was recorded. He further contends that under Section 251-A before a charge is framed, there is no necessity to record any evidence. Under Sub-Section (2) of Section 251-A"if upon consideration of all the documents referred to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him. "but, under Sub-section (3)"if, upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence tribal under this Chapter, which such Magistrate is competent to try, and which in his opinion, could be adequately punished by him, he should frame in writing a charge against the accused. "it is only if the charge is framed and the accused refuses to plead or claims to be tried that the Magistrate has to fix a date for the examination of witnesses under Sub-section (6 ). The contention of the learned Advocate that the stage of recording evidence had not yet been reached is, in my view, warranted by the provisions of Section 251-A. This is also borne out by a decision of the Bench of this Court in P. Veeraraghavulu v. State, AIR 1958 Andh Pra 301 where Basi Reddy, J. held that"under Section 251-A Cr. P. C. the classification is between warrant case

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