1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1402 of 2009 Date of Decision: 26-5-2009 Balwinder Singh ....Petitioner VERSUS State of Punjab ....Respondent Present: Mr. Satnam Singh Gill, Advocate, for the petitioner. S.S. SARON, J. This revision petition has been filed against the order dated 20-5-2009, passed by the learned Additional Sessions Judge, Patiala, whereby, the appeal of the petitioner against his conviction and sentence for the offence under Section 411 of the Indian Penal Code (I.P.C. - for short) passed by the learned Sub Divisional Judicial Magistrate, Rajpura on 20-1-2006 has been dismissed. The prosecution case is that on 16-3-2000, A.S.I. Sukhdev Singh, was present at Sirhind by-pass, Rajpura, alongwith other police officials in connection with patrolling duty. A secret information was received by A.S.I. Sukhdev Singh that Balwinder Singh (petitioner) is in the habit of stealing vehicles and he was roaming around in Rajpura Town for selling car No.CHE- 7237. If, a barricade was set up at Sirhind by-pass, Rajpura, then the aforesaid car could be recovered from the petitioner. Information was considered to be trustworthy. Accordingly, S.P.O. Gurmeet Singh was sent to the police station for registration of a case (F.I.R.) for the offences under Sections 379 and 411 I.P.C.. The F.I.R. was accordingly registered. On 18-3-2000, A.S.I. Sukhdev Singh, alongwith other police officials was present at Sirhind by-pass, Rajpura, 2 when Maruti Car No.CHE-7237 came and was stopped by the police party. The driver gave his name as Balwinder Singh (petitioner) son of Jit Singh. He disclosed that he had stolen the car from Sector 22-D, Chandigarh. The original number of the car was CHE-1231 and he had changed the number in the registration copy also. He also disclosed that he had concealed the original documents in a room from where, he could get them recovered. As per his statement, the documents as disclosed were recovered and taken in possession. The Maruti car that was apprehended was also taken in possession by the police. The accused-petitioner was arrested. A.S.I. Sukhdev Singh prepared the site plan. After completion of investigation, challan was filed. The petitioner was charge-sheeted for the offences under Sections 411, 465 and 468 I.P.C. The prosecution in order to prove its case examined as many as five witnesses, besides submitted documents in evidence. The statement of petitioner was recorded under Section 313 of the Code of Criminal Procedure. ('Cr.P.C' – for short) and the evidence appearing against him was put to him. The petitioner in his defence examined his wife Smt. Dimple (D.W-1). The learned trial Court after considering the evidence and the material on record, found the petitioner guilty for the offence punishable under Section 411 I.P.C. The petitioner was, however, acquitted of the charges for the offences punishable under Sections 465 and 468 I.P.C.. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- and in default of payment of fine, to further undero rigorous imprisonment for 15 days, for the offence punishable under Section 411 I.P.C.. The petitioner aggreived against the order of the Sub Divisional Judicial Magistrate, Rajpura, filed an appeal, which has been dismissed by the learned Additional Sessions Judge Patiala by the impugned order dated 20-5-2009. The said order is impugned in the present petition. The learned Counsel for the petitioner has submitted that the offence under Section 411 I.P.C. is not made out against the petitioner because as per 3 the definition of 'stolen property' in terms of Section 410 I.P.C., only the property that has been received dishontely would come within the purview of 'stolen property'. It is contended that it was not proved that the petitioner knew that the car which is alleged to have been recovered from him was stolen property. It is also submitted that there is delay of 20 days in registering the FIR. He further submits that as the theft was committed in Chandigarh, the case was required to be inquired by Chandigarh Police and second F.I.R. could not have been registered at Rajpura. After giving my thoughtful consideration to the contentions of the learned Counsel for the petitioner, I find that there is no merit in the said contentions as raised by the learned Counsel for the petitioner. It may be noticed that the Car CHE- 7237 was stolen from Sector 22-D, Chandigarh. P.W.-4 Ranjit Kumar, who is the owner of the said car, appeared in the witness box and stated that he is running a shop by the name of 'Kumar Opticals', Sector 22-D, Chandigarh. On 2-2-2000, he parked his car in the parking area of Sector 22-D, Chandigarh, from where it was stolen by someone. He came to know about the theft of his car at about 8.30 P.M. on 2-2-2000. Accordingly, FIR with the Police Post, Sector 22-D, Chandigarh was registered on 2-2-2000. Later on, he came to know about the recovery of the car by the police at By-pass Rajpura on 18-3-2000. Therefore, it has come on record that the car that has been recovered from the petitioner was a stolen car and it belonged to Ranjit Kumar (P.W.-4). The F.I.R. registered at Rajpura is on the basis of secret information regarding the petitioner driving around with a stolen car, however, without the knowledge as to from where it was stolen. Therefore, it is not a case of registration of second F.I.R. In any case, there was no knowledge of registration of F.I.R. at Chandigarh. Besides, it cannot also be said that there has been delay in the registration of F.I.R. Besides, A.S.I. Sukhdev Singh, Investigating Officer, appeared as P.W.-5, who proved the 4 documents i.e. the disclosure statement of accused (Ex.PB), recovery memo of the car (Ex.PC), registration certificate (Ex.P1) and copy of FIR. The learned trial Court referred to the provisions of Section 114 of the Indian Evidence Act and particularly illustration (a), which is to the effect that the Court may presume that the man, who is in the possession of stolen goods soon after it was stolen, is either the thief or has received the goods knowing them to be stolen, unless he can accounts for their possession. It was noticed that the petitioner had simply taken the defence of false implication and he examined his wife Smt. Dimple (D.W.1) It is stated by her that on 16-3-2000, she alongwith her husband, Balwinder Singh came to Rajpura to see her cousin brother. They came on a rickshaw to the Bus Stand, Rajpura, where the police post is situated and they had a quarrel with the rickshaw puller over the excess payment demanded by him. There was an altercation in front of the Police Post, Rajpura. The police took her husband to the police post and slapped him. The police asked her to go to her house and they would leave her husband after some time. According to her, a false case had been registered. The prosecution case is that the car in question was stolen from Sector 22-D, Chandigarh, which has been recovered from the petitioner. At the time of effecting the recovery, the petitioner had disclosed that he had stolen the car. Section 410 of the I.P.C. defines 'stolen property'. The same reads as under:- " Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as stolen property, whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property." 5 In the present case, the car that has been transferred to the petitioner was stolen. Therefore, it is stolen property. Section 411 the I.P.C. provides that "whoever dishonestly receives or retains any stolen property knowingly or having reason to believe, the same to be stolen property, shall be punished with imprisonment of either discription, which may extend to three years or with fine or with both." In the present case, the petitioner has retained the stolen property, which he knew to be stolen. The car that was recovered from the petitioner was stolen from Sector 22-D, Chandigarh. Ranjit Kumar (P.W.4) has identified his car and had claimed the same. It had also been brought to the Court. Therefore, the contention of learned Counsel that the petitioner cannot be said to be knowning that the car was stolen property is misconceived, as he had retained the stolen property, which had been transferred to him on account of the theft, that had been committed with regard to the said car. Besides illustration (a) to Section 114 of the Indian Evidence Act has been rightly relied upon by the learned trial Court. The contention that the FIR was registered at Chandigarh and, therefore, the case was liable to be inquired into only at Chandigarh is also inconsequential. As already noticed, the FIR was registered at Rajpura on the basis of secret information regarding the petitioner being habitual in dealing with stolen cars and driving around in one of them. There was no information or knowledge as to from where the car was stolen. Therefore, the F.I.R. was registered at Rajpura and the stolen car was also recovered from there. As such, the case was investigated and tried at Rajpura. In the trial of the case, no prejudice is shown to have been caused to the petitioner. Even otherwise, Section 465 Cr.P.C. envisages that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings 6 under this Code, or any error; or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. In the present case, the theft of the car had occurred at Chandigarh but the petitioner was found to be retaining the stolen property at Rajpura. Therefore, there is no irregularity or error in the conviction of the petitioner for the offence under Section 411 I.P.C. that has been recorded. The petitioner has been validly convicted by the Court of competent jurisdiction. Even if, there is any irregularity, the same has not been shown, to have occasioned a failure of justice to the petitioner as he had admittedly been found in possession of the stolen property. In the aforesaid circumstances, there is no merit in the petition and the same is accordingly dismissed. The learned Counsel for the petitioner has then contended that the petitioner is a first offender and no case is pending against him. It is, therefore, prayed that this Court may take a lenient view with respect to the sentence imposed upon the petitioner. After giving my thoughtful consideration to the matter, it may be noticed that the petitioner was in possession of the car that has been recovered from him. The question whether he is the first offender in the circumstances of the present case, would be inconsequential. However, ends of justice would be met, if the sentence of imprisonment is reduced from one year to six months R.I. Accordingly, while maintaining conviction, the sentence of imprisonment shall stand reduce to six months R.I., while keeping the sentence of fine intact. The revision petition stands disposed of accordingly. (S.S. SARON) JUDGE 26-5-2009 gaurav/amit