IMPORTANT POINT
The essential elements of robbery under Section 390 of the IPC must be established for a charge under Section 392 to stand; otherwise, the offense may be classified as theft under Section 379, which is compoundable.

ORDER :

A. BADHARUDEEN, J.

The 3rd accused in C.C.No.29/2024, on the files of Judicial Magistrate First Class Court-I, Punalur, arising out of Crime No.1039 of 2023 of Kulathupuzha Police Station, Kollam, has filed this Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure (`Cr.P.C’ for short) with a prayer to quash the proceedings as against the petitioner in C.C.No.29/2024 pending before the Judicial First Class Magistrate’s Court-I, Punalur in Kollam District and render justice to the petitioner.

2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor in detail. Perused the relevant documents.

3. Here the prosecution allegation is that at 1.10 p.m on 30.10.2023, accused 1 to 3 with intent to steal the gold necklace worn by the defacto complainant reached, the tea shop run by the defacto complainant and her husband opposite to Kulathupuzha Mosque, on a bike. Thereafter , the 1st accused came to the shop and asked for a cigaratte. While the defacto complainant was taking the cigaratte, the 1st accused snatched the gold necklace and left the place along with accused 2 and 3 on the same bike. Thereby the defacto complainant sustained loss of Rs.1,35,000/-. It is on this premise, the prosecution alleges commission of offence punishable under Section 392 r/w 34 of the Indian Penal Code, by the accused.

4. The petitioner would submit that the petitioner is innocent and he had no role in this crime. He also submitted that now the defacto complainant filed an affidavit in view of the compromise entered into between him and the defacto complainant. Therefore, quashment is liable to be allowed, is the submission of the learned counsel for the petitioner. He has placed a decision of the Apex Court reported in [2023 KHC 6763 : 2023(5) KHC SN 19 : 2023 KHC OnLine 6763 : 2023 INSC 683 : 2023 SCC OnLine SC 951 : 2023 KLT OnLine 1683 : AIROnLine 2023 SC 616 : AIR 2023 SC 3784 : 2023(4) KLJ 16 : 2023 (5) KLT SN 27], Mohammad Wajid v. Stae of U.P, to contend that, theft amounts to `robbery’ if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to `robbery’, the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc., for that end, that is, in order to the committing of the theft or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft. It is not sufficient that in the transaction of committing theft, hurt, etc. had been caused. If hurt, etc., is caused at the time of the commission of the theft but for an object other than the one referred to in S.390, IPC, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft.

5. According to the learned counsel for the petitioner, in this case theft alone is the offence, which is permitted to be compoundable and no offence of robbery would attract.

6. The learned Public Prosecutor would submit that the defacto complainant has given statement supporting settlement of the case in between the defacto complainant and the 3rd accused. But no settlement reached in so far as accused 1 and 2 are concerned. He also pointed out that the petitioner i