Accused can challenge theft charges if preconditions, such as finance default related to repossession, negate culpability under IPC Sec. 379.

O R D E R

The petitioners are the accused in Crime No. 165/2018 of Feroke Police Station registered alleging offences punishable under Sec. 379 r/2 Sec 34 IPC . The prosecution allegation is that the accused had stolen car bearing registration No. KL 10/AR 4992 and the household articles along with Rs. 85,000/- on 17.04.2018 at about 6.30 pm and thus committed the offences. Annexure A is the FIR and Annexure B is the final report. In Annexure B final report, the Police concluded that the car was taken possession of by the financiers that there was default in making repayment to the loan account and it is precisely with that allegation, the charge sheet was laid. Upon receipt of Annexure-B final report, the case was originally taken on file by the Judicial First Class Magistrate Court – V, Kozhikode as CC No. 129/2020 and the same was made over to the Judicial First Class Magistrate Court-VI, Kozhikode subsequently and re-filed as CC No. 22/2022. It is submitted that Annexure C is the hire purchase agreement with respect to the vehicle in dispute. The case of the petitioners is that even if the entire allegations in Annexure-B are accepted, no offence under Sec. 379 r/w Sec. 34 is made out.

2. Heard the learned counsel for the petitioners and the learned Public Prosecutor. No notice is necessary to the 3rd respondent at this stage because of the way in which this Crl.M.C. is going to be disposed of.

3. The main contentions of the petitioners is that in the light of the decisions of the Apex Court inAnup Sarmath v. Bhola Nath Sharma [ 2013 (1) SCC 400 ], Charanjit Singh Chodha v. Sudhir Mehra [ 2001 (7) SCC 417 ], Bharudan Dugar v. SI of Police [ 1986 KLT 430 ], Trilok Singh & Others v. Satya Deo Tripathy [AIR 1979 SC 850], KA.Mathai v. Kora Bibikutty [1996 (7) SCC 212] and International Advanced Research Centre for Powder Metallurgy and New Materials v. NIMRA Cerglass Technics Pvt. Ltd. [2015 (4) KLT Suppl.21 (SC)], Annexure-B prosecution will not stand. The Public Prosecutor submitted that this Court may not invoke the jurisdiction under Sec. 482 Cr.P.C. and it is a matter to be decided by the trial court at appropriate stage.

4. This case was originally registered in the year 2018 and the case was taken on file by the Judicial First Class Magistrate-V, Kozhikode in the year 2020. In such circumstances, I am of the considered opinion that this Crl.M.C. need not be entertained under Sec. 482 Cr.P.C now. It is submitted that the charge is not framed in the above case. If that is the case, the petitioners can be allowed to file a discharge petition before the lower court and there can be a direction to the court below to consider that discharge petition in the light of the dictum laid down by the Apex Court in the above referred cases. The discharge petition can be filed by the petitioners through their lawyer and the learned Magistrate shall not insist the presence of the petitioners till the discharge petition is considered.

Therefore, this Crl.M.C. is disposed of with the following directions :

1) The petitioners are free to file a discharge petition before the trial court within three weeks from the date of receipt of a copy of this order.

2) Once such a discharge petition is received, the learned Magistrate will consider the same and pass appropriate orders in the light of the dictum laid down by the Apex Court in the judgment referred in paragraph No. 3 of this order.

3) If the discharge petition is filed as directed above, the presence of the petitioners shall not be insisted by the learned Magistrate till final orders are passed in the discharge petition.