1. This is an application by the accused to quash the charges framed on 6-7-1960 by the learned Judicial IInd class Magistrate, Ponnur, on the ground that the complainant has no locus standi ta file the complaint and that the complainant is actuated by malice and has launched the criminal proceedings simply to harass the petitioners. The accused also has taken the ground that the subject matter of the complaint is of a civil nature and therefore no criminal proceedings need be taken in regard to it.
2. It needs to be mentioned at the outset the exact background which has given rise to this complaint. O. P. No. 112 of 1959 has been filed by one Sarobiah. minor, represented by his mother - next friend and guardian in the Court of the Subordinate Judge, Bapatla, on 10-12-59 for partition of move-able and immoveable properties and for allotting 4/9th share to the minor. The 1st respondent therein is the father of the minor.
The 2nd respondent is the uncle of the minor being the brother of the 1st respondent, and the 3rd respondent is the wife of the 2nd respondent while the 4th respondent is the mother of respondents 1 and 2. Pending this original petition filed in forma pauperis, an application was made on behalf of the minor petitioner on 14-12-59 for appointment of a Receiver, and another application for grant of a temporary injunction restraining the defendant from disposing of the moveable properties of the Joint Family. It appears that on 17-12-59, an order of temporary injunction has also been made By the Court of the Subordinate Judge, Bapatla.
3. While matters stood thus, one Ravipati Sitaramiah, claiming to be interested in Sambiah, the minor petitioner in O. P. 112 of 1959, filed a complaint on 24-12-59 before the Judicial II Class Magistrate, Ponnur, against the 2nd and 3rd respondents in O. P. 112 of 1959, and one Kolla Kotiah. He averred against those three accused that offences were committed by them under Sections 379, 206, 107 etc., of the Indian Penal Code and that they are liable to be punished therefor.
He averred in his complaint that the accused 1' and 2 developed the evil idea to grab at the property of the minor Sambiah who was the petitioner in O. P. 112 of 1959, and therefore, conceived the idea of causing wrongful loss to Sambiah's interests and further A-l and A-2 having come to know of the institution of the suit in forma pauperis, controived with A-3 and began stealthily to dispose of one cow besides three bulls at Appapuram and what has. been so disposed of has come into the custody of the 3rd accused. This complaint further stated that the motive for doing so is to screen the properties of the Joint Family as accused 1 and 2 came to know about the Receiver Petition filed by his nephew viz., the minor Sambiah.
4. In support of his complaint, the complainant has examined himself as P. W. 1 and also another five witnesses. It appears that lengthy arguments on both sides were advanced before the framing of the charges by the learned Judicial II class Magistrate, Ponnur. In that Court, on behalf of the complainant it was stressed that charges should be framed against accused 1 and 2 under Sections 379, 403, 406 I.P.C., and also Sections 206 and 207, I.P.C. as it was contended that accused 1 and 2 stealthily removed the scheduled cattle and screened the same with A-3 at Appapuram only after the institution of the suit and the filing of the Receiver petition.
But this contention did not find favour with the lower Court, as it came to the conclusion that the allegation concerning the offences under Sections 206 and 207, I.P.C. relate to something which has happened in a proceeding in a court and, it is therefore, that Court that has to make the complaint. As regards the charge under Section 107 I.P.C. the lower Court was not prepared to concede that A-3 could be tried for abetment of offences of theft or misappropriation. Thus, it is that A-l and A-2 have ultimately been charged by the learned Judicial II Class Magistrate for offences under Section 379 or 403 or 406 I.P.C. and A-3 for the offence under Section 411 or 414 I.P.C.
5. In these proceedings to quash the charges, Mr. J. Sambasiva Rao contended that the complainant had no interest in the cattle, which are said to have been secreted by the accused, and it cannot, in any case, be said that the complainant had possession of these properties. It is pointed out that while the minor has not complained through his next friend or guardian. it is only a brother-in-law of his, who had not instituted any other proceedings on behalf of the minor, that has come forward with the complaint.
In other words, what is argued is that the complainant is not interested in the properties said to have been stolen, nor could he be said to have had possession of them even apart from the question that A-l and A-2 cannot be said to have intended to take that property dishonestly from the complainant. It would be found, on a reading of the complaint itself, that there is no mention at all that the complainant had the possession of the cow or the cattle. On the other hand, in the deposition of the complainant, he has clearly stated that the animals are the properties of the joint family of A-l and Veeriah, and that they were disposed of surreptitiously by A-l and A-2.
It is significant that the complainant does not even allege that these cattle were in the exclusive possession of the minor, Sambiah. The allegations made by the complainant thus make it clear that, not merely the complainant, but even the minor never had in their possession the cow or cattle which are now complained of having been stolen by A-l and A-2. What is stated by the complainant is that the first accused has been prevailed upon his wife, A-2 and they both together disposed of the cow and cattle, belonging to the Joint family, which were in their possession, and because they did this with a view to deprive the minor, Sainbiah of his share therein, the act of the accused in doing so, tantamount to the commission of theft of the cow and cattle.
In plain language what the complainant seeks to make out is that the secretion of the joint family property by two of the defendants in the suit should be taken as commission of theft and the person with whom those properties are secreted must be taken to be in possession of the stolen articles. Apart from the fact such an accusation can be easily flung against every party in a partition suit without any legal basis, there is in this case, the serious difficulty that this accusation is not made by any members of the joint family but only by somebody, who without proper authority, assumes the responsibility to make the complaint. In these circumstances, I am not persuaded to believe that this complainant is placed in any better footing than one by any other stranger and even if it be that Ravipati Sitaramiah observed another removing a thing he could not himself, it is clear, prefer a private complaint for theft of the article without even showing that be was in possession of the same.
6. It is contended by Mr. G. Venkatarama Sastiy that the ingredients mentioned in Section 378, I.P.C. do not make it incumbent upon any complainant to prove that the articles regarding which theft is committed, are in his possession, and that the offence as defined therein should be taken to be only the moving of the article with the necessary dishonest intention, and it is not, therefore, essential that the possession of that article should be established as that of the complainant himself.
In support of this, he calls in aid the words 'possession of any person' found in that section as capable of being interpreted that the article must be in the possession of 'any person'' and not 'of the complainant'. But, that would, in my view, be ignoring the words which follow, which are 'without that person's consent'. It is not merely the moving of the article from the possession of a person, but moving it from the possession of that person without that person's consent that is made to constitute an offence; the want of consent of the person in possession is therefore meant by these words.
If this prerequisite is not there, a complainant cannot complain of an offence of theft. Therefore the complainant should also show that not only the article was moved from his possession, but that it was done without his consent. Such being the import of the words referred to, it does not, in my view, stand to reason to argue that what is required to be proved is only the possession of some other person, as if want of consent of that person would not matter in the circumstances.
Also a reading of the illustration given to that section, in my view, clearly makes out that the moving of the object from the person, who complains, without that person's consent, is the necessary ingredient to the offence of theft. That way considered, the contention on behalf of the accused that Ravipati Sitharamiah cannot complain of theft of an article belonging to the minor Sambiah, has, in my view, force and should be accepted as disentitling the complainant to make any accusation of theft against the accused.
7. As to the charge in respect of misappropriation under Section 403, I. P. G. the complaint does not mention about entrustment of any property by the complainant to the accused, and it is obvious that on the averments in the complaint no conclusion of misappropriation could at all be reached. What is stated by the complainant is that minor, Sambiah instituted O. P. 112 of 1959 for partition of joint family properties, and accused Nos. 1 and 2 having known that minor,. Sambiah filed an application for the appointment of receiver, secreted the cow and cattle.
Even if this complaint can be thought of having been made by minor, Sambiah, it cannot, on the facts of this case, be said that the minor, Sambiah had entrusted any properties of his to these accused and that those properties were being misappropriated, or any act of criminal breach of trust can be said to have occurred in respect of those properties for, it is the common case, that these properties are of the joint family in which each has an interest or share.
Further, as facts reveal, it is the accused that had been in sole possession of these properties (cattle), and there is not a whisper that the minor was in exclusive possession of these joint family properties. In such a case, it is impossible to have even to suppose for a moment that by selling those cattle, as alleged by the complainant, any property in the exclusive possession of the minor has been moved or taken and disposed of by A-l and A-2.
Further the secretion of the joint family properties with a view to avoid distribution of the same, or the liability to account therefor, cannot, in any sense, be said to constitute an offence. Having regard to these, and also the particular fact that the complainant has nothing to do with these catttel, it looks to me that charges are being framed by the lower Court in the circumstances shown to him, against the accused, without any semblance of the substance therefore, and without even the complainant making out a 'prima facie' case. The decision in Queen-Empress v. Ponnurangam ILR 10 Mad 186 is distinguishable as one where a coparcener converts the joint possession of a property into his separate possession, which is not the case here.
8. As for the accusation against the third accused that the cattle were found in his possession and must be taken to have been in possession of the stolen articles, any charge in respect of this offence could be considered as probable only if accused 1 and 2 could be said to commit theft in respect of those cattle and cow. But, as is evident, when the complainant mentions that cattle belonging to the joint family and in the possession of accused 1 and 2 have been taken and given to A-3, it seems to me that any accusation against A-3 under Section 411 or under Section 414 is a far cry, or at least is not warranted on the averments in the complaint
9. In the circumstances such as these, when a person, unconnected even with the litigation which is the subject-matter of O. P. No. 112 of 1959 and who is not in the possession of the properties said to be the subject-matter of theft, comes with a complaint and seeks to charge persons he are parties to a civil litigation, it should be taken to be a case where the allegations in the complaint, even if they are taken to be true at their face value. or accepted in their entirety, do not constitute an offence as alleged.
It is not therefore necessary that the Court trying the acused should be called upon thereafter to look into or appreciate any evidence in support of such a prosecution. It, therefore, pertains, in my view, to that class of cases where intervention of this Court is called for under Section 561-A Cri. P.C. to quash the charges on the ground that after looking into trie complaint, it could be held that no offence, 'as alleged, is disclosed,
10. The learned counsel for the complainant respondent has relied upon the decision in R.P. Kapur v. State of Punjab : 1960CriLJ1239 and argued that this extraordinary power to quash the criminal proceedings could not be invoked in this case. But, I am unable to find how this decision helps the respondent. On the other-hand I am firmly of the opinion that this exactly is a case which could be said to fall under the second category mentioned therein as calling for interference in the interests of justice.
11. For these reasons, the charges framed against the accused by the learned Judicial IInd Class Magistrate, Ponnur are quested.