The petitioner is before this Court calling in question the

order dated 22-10-2019 passed C.C.No.778 of 2019 pending

before the Senior Civil Judge and JMFC, Ramdurg, for offence

punishable under Section 379 of the IPC.

2. Heard Sri H.M.Dharigond, learned counsel appearing for

the petitioner and Sri Ramesh Chigari, learned High Court

Government Pleader appearing for the respondent – State.

3. The facts in brief are as follows:-

A complaint is registered by the Police Sub-Inspector,

Ramdurg, against the petitioner and 10 others on the score that

they had tried to transport sand without a permit. Based upon

the said complaint, a FIR is registered in Crime No.43 of 2017

for offences punishable under Section 379 of the IPC and

Sections 4(1), 4(1A) r/w. Section 21 of the Mines and Minerals

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(Development and Regulations) Act, 1957 and Rules 3, 32 and

44 of the Rules framed thereunder. The Police after investigation

have also filed a charge sheet against the petitioner and others.

The petitioner is accused No.11 in the said case. On filing of the

charge sheet, cognizance is taken by the learned Magistrate for

the offence punishable under Section 379 of the IPC only. It is

at that juncture, the petitioner approaches this Court in the

subject petition.

4. The learned counsel for the petitioner submits that even

according to the report submitted, the vehicle of the petitioner

was found without any sand in it. An empty vehicle is sought to

be alleged of thieving sand. He would seek indulgence of this

Court to quash the proceedings on the ground that he is not

guilty of any offence.

5. On the other hand, the learned High Court Government

Pleader appearing for the respondent would submit that though

the petitioner was found with the vehicle which was empty and

no sand in it, but he was in the process of going and lifting the

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sand and on that basis, he was charged. Therefore, he has to be

tried for the offence punishable under Section 379 of the IPC.

6. I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused the material on record.

7. The report pursuant to which complaint is registered,

divides the facts into two categories – one the lorries which had

sand in them or filling sand in them and the other, lorries which

had come there allegedly to fill sand in them. The petitioner

comes within the second category viz., that his vehicle had come

there allegedly to fill sand. Section 379 of the IPC reads as

follows:

“379.

Punishment

for

theft—Whoever

commits theft shall be punished with imprisonment

of either description for a term which may extend to

three years, or with fine, or with both.”

Section 379 deals with whoever commits theft shall be punished

as is indicated. What is theft is found in Section 378 of the IPC.

If the ingredients of Section 378 of the IPC are noticed, no

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allegation of theft can be made out against the petitioner as

admittedly, no sand was found in his vehicle that was

confiscated. The allegation is that, the vehicle had come to fill

the sand. Section 378 of the IPC reads as follows:

“378. Theft- Whoever, intending to take

dishonestly any movable property out of the

possession of any person without that person's

consent, moves that property in order to such taking,

is said to commit theft.

Explanation 1. - A thing so long as it is

attached to the earth, not being movable property, is

not the subject of theft; but it becomes capable of

being the subject of theft as soon as it is severed

from the earth.

Explanation 2. - A moving effected by the same

act which effects the severance may be a theft.

Explanation 3. - A person is said to cause a

thing to move by removing an obstacle which

prevented it from moving or by separating it from any

other thing, as well as by actually moving it.

Explanation 4. - A person, who by any means

causes an animal to move, is said to move that

animal,

and

to

move

everything

which,

in

consequence of the motion so caused, is mov