Kuldeep Singh v. State of NCT of Delhi

1. Petitioner impugns order on charge dated 19.04.2016 whereby charge has been framed against the petitioner under Section 412 IPC in FIR No.378/2014 under Section 395/394/397/342/412/506/201/ 34/120-B IPC, P.S.Lahori Gate.

2. On 09.12.2014 a PCR call was received regarding a robbery. When the police party reached the spot, complaint was lodged by owner of the that he is a trader in dry fruits and he along with his nephew were sitting in the office of the shop and his employees were working in the adjoining room. 2019:DHC:2805

3. At about 6 in the evening, one boy entered the office and took out a country made pistol and threatened them. Thereafter three more boys they were carrying country made pistol and knives.

4. Thereafter it is alleged that they took away approximately Rs.1,15,00,000/-. In a subsequent statement it is alleged that Rs.1.[4] crores were stolen.

5. Subsequently four boys who had committed the robbery were arrested. One of the co accused Subhash in his alleged disclosure statement is alleged to have stated that he had got a share of Rs.21.[5] lakhs out of which Rs.10 lakhs were kept in the safe custody of the present petitioner. When the investigating party reached the petitioner, he is alleged to have confessed that a sum of Rs.10 lakhs had been kept by Subhash with him and promptly handed over the same to the investigating team. The petitioner is alleged to have stated that he kept the money on the representation of Subhash that he had received the cash from sale of a property and that he was not aware that the said money was involved in any robbery.

6. In the charge sheet filed by the prosecution, Petitioner was cited as a prosecution witness, however, at the time of hearing on charge, Trial Court was of the view that charge was required to be framed against the petitioner under Section 412 IPC as he was found in possession of Rs.10 lakhs out of the stolen property.

7. Learned counsel for the petitioner submits that charge framed against the petitioner is not sustainable in as much as the petitioner was initially cited as a witness by the prosecution in the charge sheet and subsequently the Court summoned him to face trial and thereafter without complying with the mandatory provisions of Section 207 Cr.P.C., charge was framed against him.

8. Further it is contended that petitioner has been roped in solely on the basis of a disclosure statement and there is nothing to suggest that petitioner was aware that the money which was kept with him by the co-accused was involved in the commission of dacoity.

9. Section 412 IPC reads as under:- “412. Dishonestly receiving property stolen in the commission of a dacoity.—Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” (underlining supplied)

10. For constituting an offence under Section 412 IPC, it is not merely receipt of a stolen property, which is required but also the knowledge or reason to believe that the property so received has been transferred by commission of a dacoity.

11. Charge sheet records that co-accused Subhash, who had kept the money with the petitioner, in his disclosure statement stated that he had kept the money with the petitioner by telling him that he obtained the money by selling his house and had given him the money for keeping in safe custody. This was also so stated by Kuldeep at the time when the raiding party had raided his house pursuant to the alleged disclosure statement of Subhash.

12. The prosecution while filing the charge sheet also cited petitioner as a witness. On perusal of the record, it is clear that there is no material on record to suggest that petitioner either had knowledge or has reason to believe that the amount of Rs.10 lakhs, that was kept by the co-accused with him was involved in the subject offence or had been received by the co accused by commission of dacoity or that he had knowledge or reason to believe that Subhash belonged to a gang of dacoits or further he had known or had reason to believe that said amount was stolen.

13. Since there is no material to show the requisite mens rea as is required under Section 412 IPC, petitioner could not have been charged under Section 412 IPC.

14. Further the prosecution, in my view, had correctly cited him only as a witness and not as an accused or a suspect in the subject offence. Consequently, the charge framed against the petitioner under Section 412 IPC is not sustainable.

15. Since on merits this Court has found that petitioner is not liable to be charged under Section 412 IPC, the question raised by learned counsel for the petitioner that he was summoned as a witness and without complying with the mandatory provisions of Section 207 Cr.P.C charge was framed against the petitioner and thus is liable to be quashed, is not being gone into and is left open.