Case: State Of Maharashtra Vs. Vishwanath Tukuram Umale &amp; Ors

2. It was alleged that seven tyres and seven tubes were booked from Wadi Bunder goods shed of the Central Railway on March 20, 1971, in wagon No. WR 35775. The seven tyres were stolen by accused 1, 2, 5 and the absconding accused, from the Down Yard of the Bhusawal railway station while in tranist, and were kept in the hut of Ragho Motiram Birhade. Accused 1 sold seven tyers to accused 3 for Rs. 2700/-, and accused 3 removed them in his motor-lorry to Savda. He produced four tyres from his lorry, but three tyres were found to have been sold to accused 4 and were seized from his possession. It was therefore specifically alleged that accused 1, 2, 5 and the absconding accused were proved to "have been found in unlawful possession" of the railway property while accused 3 and 4 were found in unlawful possession thereof within the meaning of Section 3 of the Act. The trial Magistrate however refused to frame a charge under that section against any of the accused and framed charge for the commission of offences under Ss. 379, 461 and 411 I.P.C. against all the accused. The State felt aggrieved and applied for a revision of that order, but it was upheld by the Additional Sessions Judge, Jalgaon, as mentioned above. We have made a mention of the view which was taken when the matter went up to the High Court in revision.

Reasoning: It is not in dispute before us that the property in question was railway property within the meaning of Sec. 2(d) of the Act. It is also not in dispute before us that it was reasonably suspected of having been stolen or unlawfully obtained. It is not disputed therefore that two of the three essential requirements of Section 3 were shown to exist at the time when the question of framing the charge came up for considerationIt was therefore permissible for the prosecution to establish, either that the accused were "found" to be in possession of the railway property, or that they were proved "to have been" in possession thereof. As accused 1, 2, 5 and the absconding accused were not "found" in possession of the railway property, it was permissible for the prosecution to allege and prove that they had been in possession of that property, in order to attract the application of Section 3That was in fact the reason why they were charged for the commission of offences under Sections 379, 461 and 411 I.P.C. It is however an essential ingredient of the offence of "theft" that the movable property which was the subject matter of the theft should have been "moved" out of the possession of any person without his consent. As is obvious, that could be possible only if the person moving the property had taken it out of the possession of the person concerned and transferred it to his own possession in order to move it for the purpose of taking it dishonestly. It follows that transfer of possesson of the property, however transient, is an essential ingredient of an offence of theftIt was clearly alleged in this case that accused 1, 2, 5 and the absconding accused committed theft of the seven tyres by removing them from the wagon in the Down Yard of railway station Bhusawal. So when it was alleged that the accused were responsible for the removal of those tyres, if was thereby alleged that they had been in possession of those tyres for some period of time, even if it is assumed that they parted with them later on and left it for accused 1 to sell them to accused 3. The allegation against accused 1, 2, 5 and the absconding accused was therefore to the effect that they "had been in possession" of the railway property in question, and that was sufficient to attract the application of Section 3 of the Act. The High Court erred in taking the view that it was necessary, for the purpose of bringing a case under that section, to prove that the accused were found to be in possession of the railway property at the time of its seizure, and that it would not be attracted in the case of an allegation that the railway property was the subject-matter of dacoity or theft by the accused. The High Court in fact went to the extent of upholding the argument that Section 3 of the Act was meant to meet a situation "analogous to the one for meeting of which Section 124 of the Bombay Police Act has been enacted." That section relates to possession of property of which no satisfactory account is given by its holder. It is therefore the failure to account for the actual possession of the property found in the possession of the accused which constitutes an offence under Section 124 of the Bombay Police Act. Unlike Section 3 of the Act, that section does not go to the extent of penalising the accused where he is proved to "have been in possession" of that property. It is true that the gravamen of the offence under Section 3 of the Act is the "possession" of the property, but it need not necessarily be a subsisting possession, and it is sufficient if the accused was proved to "have been in possession" of that property at any point of time.