The prosecution must prove ownership and possession of the property in question to substantiate the charge under Section 411 IPC.

R. K. DASH, J.

( 1 ) THIS is a petition under Section 401 read with Section 307 of the Code of Criminal Procedure by the accused persons wherein they have challenged the order of the learned Sessions Judge, Dhenkanal, remanding the case back to the trial court for disposal in accordance with law.

( 2 ) THE facts giving rise to initiation of a criminal proceeding against the accused persons may suceinctly be stated thus : On 3-8-91 at about 4 P. M. two C. I. S. P. personnel while performing patrol duty inside the smelter plant of NALCO on noticed that a man was replacing new tyres to a truck bearing registration No. MPT 9221 near M/s. G. D. C. office, on suspicion they informed the Officer-in-charge, Crimes, whereupon Inspector B. N. Rout along with another rushed to the spot and apprehended one of the second, namely Rama Chandra Behera while he was replacing the tyres. The other accused, namely, Prakash Chandra Jena, an employee of NALCO who was present there was helping Shri Behera to execute the aforesaid work.

( 3 ) FIR was then lodged, a case was registered and after usual investigation, charge-sheet was laid against the accused persons to face trial under Section 379 read with Section 34 IPC.

( 4 ) THE plea of the accused persons was one of complete denial.

( 5 ) THE prosecution in order to establish its case examined seven witnesses and the learned Magistrate on assessment of the evidence found the accused persons guilty under Section 411, IPC and accordingly convicted and sentenced them to undergo rigorous imprisonment for a period of two months each and to pay Rs. 200/-, in default, to undergo rigorous imprisonment for a further period of 16 days. On appeal, learned Sessions Judge set aside the conviction and sentence and remanded the case to the trial court with a direction that certain documents which were seized during investigation showing ownership of the tyres in question of the management of NALCO should be brought in evidence for doing complete justice to the parties. It was urged by the accused persons before the appellate court that certain incriminating materials which were used against the accused persons had not been brought to their notice while examining them under Section 313, Cr. P. C. and the same being not permissible under law, the ultimate conclusion of guilt should be set at naught. The learned Sessions Judge on going through the record found that the statement of the accused persons recorded under Section 313, Cr. P. C. was cryptic in nature and the material questions has not been put to them to elicit their explanation. So, while remanding the case, he directed the Magistrate to record the statements of the accused persons afresh setting forth all the incriminating evidence appearing against them.

( 6 ) LEARNED counsel for the accused persons vehemently contended that the approach adopted by the appellate court amounts to giving a scope to the prosecution to fill up the lacuna and the same having no sanction under law should be interfered with by this court in exercise of revisional jurisdiction.

( 7 ) I have gone through the judgements of both the courts below as well as the materials available on record. Both the accused while being examined under Section 313, Cr. P. C. did not lay any claim over the two tyres in question. They also did not dispute NALCO's ownership over the same. In view of this, they cannot urge that they would be seriously prejudiced if the documents relating to purchase of those tyres by the management of NALCO are brought on record. It need be mentioned that to substantiate the charge under Section 411, IPC it is incumbent upon the prosecution to prove ownership and possession of the property in question and it is because of that the learned appellate court remanded back the case to the court below giving opportunity to the prosecution to bring in evidence certain documents that had been seized during investigation. While remanding the case, learned Sessions Judge o