Preparation for dacoity under IPC Sections 399 and 402 can be inferred from evidence of assembly and possession of arms.

1. The petitioner, Anwar, is seeking quashing of the charge framed against him under S.399 read with S.402 of the Indian Penal Code (herein called 'the Code'). The charge along with the charge under Arms Act was framed by Mr. J. D. Kapoor, Additional Sessions Judge, Delhi, after hearing the parties on 18th May, 1981.

2. In brief the prosecution case is that an Inspector of the Crime Branch, Delhi, received secret information that some armed dacoits belonging to Uttar Pradesh were going to assemble in a Gumti (wooden hut) of Burmah shell Railway Siding, Jamuna Bridge, Delhi, at about 9 p.m. on 10th May, 1977, for the purpose of committing a dacoity. The Inspector formed a raiding party in which two public witnesses were associated. The party proceeded towards that Gumti and on the way another public witness was joined in the raiding party. That hut was surrounded by the raiding party. Some of its members including the Inspector without arousing any suspicion were able to reach the eastern window of the Gumti. They heard one of the dacoits while addressing one of his companions as Sukhpal questioning whether he (Sukhpal) being new entrant would deceive them. At that Sukhpal replied that he was a 'mard' (he - man) and that he had come fully prepared. The members of the raiding party further hear a question being asked to another companion, namely Puran, whether he had brought the 'kutta' (country - made pistol). Puran replied in affirmative. Thereafter, the raiding party entered the Gumti and apprehended the persons present inside it. The petitioner herein was one of them. From his custody a country made pistol and six cartridges were recovered. A country - made rifle was recovered from co - accused Sukhpal. Another country - made pistol was recovered from Puran; a knife was recovered from co - accused Ghanshyam : a torch was recovered from co - accused Jassan Alam and a lathi from Qayum accused. Another arm known as "Subble' was recovered from co - accused Sukha.

3. The case of the petitioner is that even if all the allegations as contained in the report under S.173, Code of Criminal Procedure and those contained in the statements recorded under S.161 of the said Code are admitted to be true, no case is made out against the petitioner under S.309 and S.402 of the Code.

4. To appreciate the contention urged by Mr. Naseem, learned counsel for the petitioner, it is necessary to keep in view the provisions of S.399 and S.402 of the Code, for which the petitioner along with others has been charged.

5. S.399 reads. "Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

6. Ordinarily, preparation to commit a crime is no offence. However, preparation to commit an offence is made punishable under three sections of the Code. Apart from S.399, the other sections are S.122 (preparation to wage war against the Government of India) and S.126 (making preparation to commit depredation on territories of any power at peace with the Government of India). Preparation to commit a crime follows after intention to do it has been conceived. Thereafter an attempt to commit it is made. Thus, three stages precede before a crime is committed : first, intention to commit it, secondly, preparation to commit and thirdly, attempt to commit.

7. Under S.399 of the Code even the second stage, viz. preparation to commit the crime of dacoity has been made an offence. The prosecution has to prove that the act of the accused amounted to preparation and that it wa