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HIGH COURT OF ORISSA
R. K. Das, J.
SUDHAKAR DAS - Appellant
Versus
DAYANIDHI (SIC) - Respondent
Criminal Appeal 203 Of 1966
Decided On : SEPTEMBER 25, 1964
CRIMINAL APPEAL - MAINTAINABILITY - COMPLAINT CASE MERGED WITH POLICE CASE - RIGHT OF APPEAL UNDER SECTION 417 (3), CR. P. C. - NOT AVAILABLE - SECTION 411, I. P. C. - DISHONEST RETENTION OF STOLEN PROPERTY - ESSENTIAL INGREDIENTS - EVIDENCE - INSUFFICIENT.
Fact of the Case:
The complainant, Sudhakar Das, managing director of Orissa Concretes Products Ltd., alleged that a coil of high-tension steel wire was stolen from their factory. He found one coil in the store of Patnaik Industries, where the accused Dayanidhi was the Manager and Ganesh was an employee. Dayanidhi expressed surprise and promised to look into the matter. The complainant lodged an F.I.R. and the police recovered some cut pieces of wire and a portion of the coil from the factory premises. The complainant filed a complaint petition in the Court of the S.D. Magistrate, who took cognizance and summoned the accused under Section 411, I.P.C. The police also filed a charge-sheet, and the Magistrate ordered that both cases be clubbed together. The Magistrate acquitted the accused, finding that the prosecution had failed to prove that the recovered properties were stolen and in the exclusive possession of the accused.
Finding of the Court:
The High Court held that the appeal by the complainant was not maintainable under Section 417 (3), Cr. P. C. as the case was instituted on a police report and not on a complaint. The Court further held that the prosecution had failed to prove that the recovered articles were stolen properties and in the exclusive possession of the accused, and therefore, no case under Section 411, I.P.C. was made out.
Issues: 1. Whether the appeal by the complainant was maintainable under Section 417 (3), Cr. P. C.? 2. Whether the prosecution had proved that the recovered articles were stolen properties and in the exclusive possession of the accused?
Ratio Decidendi: 1. The Court held that the appeal by the complainant was not maintainable under Section 417 (3), Cr. P. C. as the case was instituted on a police report and not on a complaint. The Court relied on the fact that the Magistrate had taken cognizance of the offence on the basis of the police report and not on the complaint petition. The Court also noted that the Magistrate had ordered the amalgamation of the complaint case with the police case, which resulted in the complaint case losing its identity. 2. The Court held that the prosecution had failed to prove that the recovered articles were stolen properties and in the exclusive possession of the accused. The Court noted that the complainant had not produced any account-book or slips to show the shortage in their stock due to the alleged theft. The Court also noted that there was no special mark on the recovered wires to show that they belonged to the complainant. The Court further noted that the out-pieces of wire were recovered from the workshop which was accessible to many and not in the exclusive possession of the accused.
Final Decision: The Court dismissed the appeal, holding that the order of acquittal passed by the Magistrate was justified.
R. K. DAS, J.
( 1 ) THIS is a complainant's appeal against an order, dated 11-7-1963 passed by the sub-divisional Magistrate, Bhubaneswar, acquitting the respondents of an offence under Section 411, Indian Penal Code.
( 2 ) ACCUSED Dayauidhi is the Manager and accused Ganesh is an employee of messrs. Patnaik Industries (P.) Limited, Bhubaneswar. P. W. 1, Sudhakar Das, is the managing director of another concern known as Orissa Concretes Products ltd. , near about the above firm at Bhubaneswar. On 17-6-1961, P, W. 1 came to know that some high-tension steel wires had been stolen from their factory. On 16-6-1961 at about 8 in the morning, P. W. 1 went to the factory premises of patnaik Industries and found one coil in their store which he identified as their coil. Accused Dayanidhi was then absent from the factory. So P. W. 1 went to his residence and informed him that one of their missing coils was found in the premises of Patnaik Industries. Dayanidhi felt surprised and promised to look into the matter. Sometime after though Dayanidhi came to the factory, he avoided to cooperate with P. W. 1 when the latter wanted to see their stores. So P. W. went to the Police station and lodged F. I. R. (Ex. 1 ). The police came to the spot, out found that the coil had then been cut into several pieces, though a portion of it was there. As there was some delay by the Police in completing the investigation of the alleged theft of the coil, P. W. 1 filed a complaint petition in the Court of the S. D. Magistrate on 29-7-1961. The magistrate examined the complainant on oath but as it was disclosed that an F. I. R. had already been with the Police, the Magistrate asked the officer-in-charge of the Capital Police Station to submit a report. Though the case was adjourned from time to time for about a year, the Police did not file the final Form. So on 1-8-1962 the Sub-divisional Magistrate brought this matter to the notice of Assistant superintendent of Police Bhubaneswar and on 10-8-1982 took cognizance and summoned both the accused under Section 411, Indian Penal Code. In the meanwhile the police having started a G. R. Case, the Magistrate by his order dated 30-8-1982 directed that G. R. Case should be clubbed with the complaint case.
( 3 ) THE plea of the accused was one of denial. Their case was that the coil in question was a part of their stock and was not an article of theft.
( 4 ) IN support of the prosecution case some witnesses were examined including some employees of the complainant's company. Reliance was also placed on the recovery of some cut pieces of wires from near the work-shop and a portion of the coil from the store-room of Patnaik Industries under seizure list, Ext. 3. The learned Magistrate found that the prosecution had tailed to prove that the properties recovered from the factory premises of the accused were stolen properties and the accused persons to he in exclusive possession of the same. He accordingly acquitted the accused persons. It is against this order of acquittal the present appeal has been filed.
( 5 ) MR. Kunungo, learned counsel tor the respondent, raised a preliminary objection that this appeal in accordance with the provisions of Section 417 (3), Cr. P. C. is not maintainable as the judgment now under challenge was one which was given in a case instituted on a police report and in such a case the State alone had the right to file an appeal. Mr. Rath, learned counsel for the appellant, on the other hand contended that the case having been originally instituted on a complaint filed by the appellant, the order of acquittal passed in such a case is appealable under Section 417 (3), irrespective of the fact that a charge-sheet was filed in the meanwhile by the Police in respect of the very same case. Before I proceed to examine the correctness of the respective contentions it is necessary to recall that the complainant first lodged an F. I. R. Ext. 1 at the Capital police station, bhubaneswar on 19-6-1961.
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