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In Re: Pundalik Shankar Gujar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Revisional Application No. 44 of 1924
Judge
Reported inAIR1924Bom448; (1924)26BOMLR440
AppellantIn Re: Pundalik Shankar Gujar
Excerpt:
.....(act v of 1893), sections 403(1), 236, ill. (2) - trial for abetment of theft--acquittal of the offence--offence of receiving the stolen property--non-conviction in absence of specific charge--subsequent trial for the offence of receiving stolen property not competent.;the accused was tried for the offence of abetment of theft and acquitted. the trial judge found that he was guilty of receiving stolon property but refrained from convicting him of the offence in absence of a specific charge. he was thereafter prosecuted for the offence of receiving stolen property:-; that, under section 403(1) of the criminal procedure code, it was not competent to the accused to be put up again on a charge of receiving stolon property, since he could have been charged with the offence at the first..........i do not think that i should, for i cannot hold that it is a minor offence under the major offence charged, the only facts proved against him show that he dealt in the stolen property after the offence of theft while he is charged with doing something prior to that theft.2. the sessions judge unfortunately omitted to consider the provisions of section 236, criminal procedure code, illustration (a) to which makes it clear that accused no. 13 could have been charged with receiving stolen property at the trial before him. that being the case, the provisions of section 403(1) apply to the present proceedings and it is not competent for the accused to be put up again on a charge of receiving stolen property. we make the rule absolute by directing that the proceedings as against.....
Judgment:

Norman Macleod, Kt., C.J.

1. The accused was put up with several other persons who were charged before the Sessions Judge of Khan-desh with offences under Sections 382 and 457, Indian Penal Code. The present petitioner, who was accused No. 13 was charged under Section 382 together with Section 109, Indian Penal Code. The Sessions Judge said:-

I have no hesitation in accepting the assessors' opinion on this point and hold with them that the offence of abetment of theft is not brought home to accused 13 I find him not guilty of that offence.

There remains the question whether I would be justified in convicting accused 13 in this trial of an offence under Section 411 which I am satisfied he has committed. I do not think that I should, for I cannot hold that it is a minor offence under the major offence charged, The only facts proved against him show that he dealt in the stolen property after the offence of theft while he is charged with doing something prior to that theft.

2. The Sessions Judge unfortunately omitted to consider the provisions of Section 236, Criminal Procedure Code, illustration (a) to which makes it clear that accused No. 13 could have been charged with receiving stolen property at the trial before him. That being the case, the provisions of Section 403(1) apply to the present proceedings and it is not competent for the accused to be put up again on a charge of receiving stolen property. We make the rule absolute by directing that the proceedings as against accused No. 13, the present petitioner, be quashed.


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