-: 1 :- revn-329/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPL. NO. 329 OF 2011 Anil Rangnath Kedar and 3 others. ..Petitioners. Versus The State of Maharashtra. ..Respondent. Mr. S. G. Rajput for the petitioners. Mr. Rajesh More, APP for the State. Coram : RANJIT MORE, J. Date : November 25, 2011. P. C. : 1. Rule. Rule made returnable forthwith. By consent of parties, taken up for hearing. 2. This revision is filed under section 397 challenging the legality and validity of the order dated 17th June 2011 passed by the Additional Sessions Judge, Pandharpur below Exhibit-26 in Case No. 63 of 2009. By the said order, the petitioner’s application under section 216 of Criminal Procedure Code, 1973 [for short “the Code”] for deletion of charge of the offence punishable under section 395 of Indian Penal Code, 1908 [for short “IPC”] is rejected. The brief srp -: 2 :- revn-329/11 facts giving rise to the present revision are as follows : . The petitioners were arrested on 7/6/2009 by the police in C.R. No. 187 of 2009 registered at the instance of Pradip Gautam Bansode for the offences punishable under sections 143, 147, 149, 457, 380, 427, 395 and 295 of IPC. The petitioners were subsequently released on bail. The Investigating Officer after completing investigation filed charge sheet against the petitioners before the JMFC, Pandharpur. Ld. JMFC committed the case to the Sessions Court, which is numbered as Sessions Case No.63 of 2009. The Sessions Judge on 3/9/2009 framed charges against the petitioners for the offence punishable under sections 427, 295 and 395 of IPC. 4. The prosecution story, as disclosed in FIR, is as follows: . The Complainant earns his livelihood by running the business of tire puncture repairing in the name and style of Sainath Tires, at Kalidas Naka. He obtained the said premises on leave and licence basis from one Yedu Hari Thokle. The civil litigation is pending between the -: 3 :- revn-329/11 Complainant and Thokle and Shirish Kumar Thamke. The said premises came to be sold to Petitioner No.2 by Shirishkumar Thamke through his power of attorney holder. Petitioner No.2 thereafter threatened the complainant to remove his shop and residential premises for which he lodged complaint with Sangola Police station. On 6/6/2009 at 6.30 p.m. Petitioner nos.2 & 3 had been to his shop and told him to remove the shop and vacate the residential premises. They also told the Complainant if he fails to obey them, they will bring JCB machine and they will demolish the residence and shop. The complainant thereafter at 10.00 p.m. closed his shop and went to his residence. On next day morning at 7.00 a.m., when the Complainant had gone to his shop then he came to know that between 2.00 am. to 3.00 a.m. the petitioners, 2 others and their 25 to 30 associates gathered at the spot illegally and with the help of JCB machine they demolished the Complainant’s shop and residence of Mr. Thokle, they also took away Rs.20,000/- from the drawer of table. The complainant was caused loss to the tune of Rs.6 to 7 lacs. -: 4 :- revn-329/11 . After receiving complaint C.R.No.187 of 2009 was registered by the police for the offence punishable under sections 143, 147, 149, 457, 380, 427 of IPC. Subsequently, offences punishable under sections 295 and 395 of IPC were added. As stated above, after completion of investigation, the charge sheet was filed and since the offence punishable under section 395 was exclusively triable by the Sessions Court, the JMFC committed the case to the Sessions Court and Sessions Court framed the charge for the offence punishable under sections 295, 395 and 427 of IPC. 5. Mr. Rajput, learned counsel for the petitioner submitted that even if the prosecution case is presumed to be true, in that case also the offence punishable under section 395 of IPC is not made out. He submitted that to bring the case within the ambit of offence punishable under section 395, there must be robbery by 5 or more persons and since the charge sheet is filed only against the petitioners, who are four in number, the offence of dacoity punishable under section 395 is not made out. Secondly, he submitted that the Complainant has not witnessed the incident the -: 5 :- revn-329/11 petitioners cannot be charged with the offence punishable under section 395 of IPC. 6. Mr. More, learned APP, on the contrary, submitted that there is material evidence against the accused and other persons that they have committed the offence punishable under section 395 of IPC, hence, learned Sessions Judge has rightly rejected their application. He submitted that no interference is called for in the impugned order in exercise of revisional powers of this Court. 7. Earlier the petitioners had filed Writ Petition No. 992 of 2010 challenging the order of the Sessions Court framing Charge. That writ petition was, however, disposed of with liberty to the petitionrs to file application for alternation of Charge. In pursuant to this liberty, the petitioners had preferred application under section 260 of the Code, which is rejected by the impugned order. 8. Having considered the rival submissions of the learned counsel appearing on behalf of the respective parties and -: 6 :- revn-329/11 having gone through the charge-sheet, relevant provisions of law, I find merit in the revision. 9. So far as the petitioners’ contention that only petitioners, who are four in number are charged and therefore offence of robbery is not made out is concerned, I do not find any merit in the same. The FIR alleged that the petitioners alongwith two others and their 25 to 30 associates demolished the shop and residence with the help of JCB machine and took away Rs.20,000/- from the drawer of table. After investigation, the charge sheet is filed only against four persons. Though, only four persons are charge- sheeted, the prosecution’s allegation is that these four persons alongwith their 25 to 30 associates have demolished the shop and residence and took away Rs.20,000/- from the drawer of table. Thus, the allegation is that more than five persons have committed the offence. The contention of the petitioners therefore cannot be accepted. Learned Sessions Judge rightly refused to delete the charge of offence punishable under section 395 of IPC on this count. -: 7 :- revn-329/11 10. Section 395 of IPC deals with the punishment for dacoity. Section 391 deals with the offence of dacoity, under which it is provided that when 5 or more persons commit or attempt to commit a robbery, it becomes a dacoity. Thus, in order to commit a dacoity, 5 or more persons must conjointly commit or attempt to commit a robbery. Section 390 deals with robbery which reads as under : “390. Robbery.- In all robbery there is either theft or extortion. When theft is robbery.- Theft is “robbery” if, in order to committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.- Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. -: 8 :- revn-329/11 Explanation.- The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.” 11. Perusal of section 390 of IPC makes it abundantly clear that for committing robbery, the doer of the theft must voluntarily cause or attempt to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint. Explanation (d) to section 390 is pertinent in the present case, which reads as follows : “(d) A obtains property from Z by saying - “Your child is in the hands of my gang, and will be put to death unless you send us ten thousand rupees.” This is extortion, and punishable as such; but it is not robbery, unless Z is put in fear of the instant death of his child.” 12. In the present case we are not concerned with the extortion. The proper reading of section 390 makes it clear that in order to charge a person with the offence of “robbery”, the said person in order to committing of the theft, or committing the theft, or in carrying away or -: 9 :- revn-329/11 attempting to carry away property obtained by the theft, must voluntarily cause or attempt to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. It is not the case of the Complainant that the petitioners have caused or attempted to cause death or hurt or wrongful restraint. If the person while committing the theft or attempting to commit theft or carrying away the property obtained by theft causes or attempts to cause to any person fear of instant death or of instant hurt or of instant wrongful restraint, the offence of robbery is made out against such person. . In the case in hand, according to the prosecution story, on 6th June 2009 at 6.30 p.m. the petitioner nos. 2 & 3 had gone to the shop of Complainant and directed him to remove his shop and to vacate the residential premises. They threatened the Complainant if he fails to obey them, they will bring JCB machine and will demolish the shop and house. The incident in question is claimed to have been occurred between 2.00 a.m. to 3.00 a.m., i.e., in the early morning on 10th June 2009. The present petitioners alongwith two others -: 10 :- revn-329/11 and their 25 to 30 associates alleged to have demolished the Complainant’s shop and residence and took away Rs. 20,000/- from the drawer of table. It is not the case of the prosecution nor it is remotely suggested that the Complainant was present at the scene of offence. The Complainant came to know about the incident on the next day at 7.00 a.m. when he had gone to open his shop. Thus, there was no question of putting the complainant in the fear of instant death or instant hurt or instant wrongful restraint. The prosecution story, even if taken at its face value, does not disclose the commission of offence punishable under section 395 of IPC. Therefore, in my opinion, the petitioners could not have been charged for the offence punishable under section 395 of IPC. 13. Taking overall view of the matter, I am of the view that the learned Sessions Judge, ought to have allowed the petitioners’ application at Exhibit-26 and deleted the charge of offence punishable under section 395 of IPC. The impugned order cannot be sustained and therefore same is quashed and set aside. The petitioners’ application at -: 11 :- revn-329/11 Exhibit-26 is allowed. Rule is made absolute in above terms. The learned Sessions shall take further action as per the provisions of section 228 of the Code. (RANJIT MORE, J.)