Bombay High Court

Bombay High Court

Vithal Yedu Khalse vs The State Of Maharashtra on 17 February, 1982
Bench: M Pendse
ORDER
1. The facts of this case would show the utter carelessness prevalent at Barshi police station. The prosecution
case is that the accused committed theft of a handcuff from Barshi police station while the officer and the
constables were present at the station. The accused claimed that on March 21, 1979 he went to Barshi police
station at about 8.30 p.m. to lodge a complaint in respect of some incident. The accused claims that the
constables at the police station were sleeping and when he tried to awake them they got offended and
threatened him to leave the police station. The accused feeling aggrieved took up a handcuff which was
hanging over the table of the police officer and proceeded towards Solapur to produce it before the
Superintendent of Police and point out how the constables at the Barshi police station are behaving.
2. The accused proceeded from Barshi to Solapur and at Solapur came across Head Constable Sardar who was
on duty at Panjarapol. The constable inquired from the accused as to how he was in possession of the handcuff
and he accused immediately told him that he wants to produce it before the Superintendent of Police as an
evidence to establish that the police station at Barshi is not properly managed and the constables are sleeping
while on duty. The accused was taken to the police station by Sardar and thereafter was sent back to Barshi
and Barshi police station launched the prosecution. The defence of the accused was that he had no intention to
commit the theft of the handcuff which was of the value of Rs. 9/- only but he desired to produce it before the
Superintendent to establish his contention that the constables were not attending to the duties and sleeping at
the police station. The trial magistrate did not accept the defence and convicted the petitioner under Section
380 of the Penal Code and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.
300/- in default rigorous imprisonment for one month. The accused carried an appeal before the Sessions
Court, Solapur, but the learned IVth Additional Sessions Judge, Solapur dismissed the appeal holding that the
conviction was justified. The Sessions Judge reduced the substantive sentence to one already undergone and
reduced the amount of fine to Rs. 100/- in default rigorous imprisonment for 15 days. The order of the
Sessions Judge is under challenge.
3. Shri Mengane, the learned counsel appearing in support of the petition, submitted that on the findings
recorded by the Sessions Judge, it is impossible to hold that the accused has committed an offence under
Section 16(i)(a) of the Penal Code. I find considerable merit in this submission. The Sessions Judge did
observe in para 8 of the judgment that the fact that the accused went to Solapur shows that he really intended
to go to the office of the Superintendent and disclose his grievance against the constables at barshi police
station. After recording this finding, the lower appellate Court observed that the accused should not have
picked up the handcuff and proceeded towards Solapur but could have lodged the complaint without
producing the handcuff as a piece of evidence. In my judgment, this approach is not correct. The accused
seems to be very poor man and was not able even to secure the bail while his appeal was pending in the
Sessions Court. It is not uncommon that a person coming from a lower strata and economically weak is not
paid any heed at the police station and even if such person has complained to the superiors, it is doubtful
whether his grievance would have received any attention. To substantiate his contention that the police
constables at Barshi ignored his and were sleeping while on duty the accused felt that he should pick up the
handcuff and produce it before the Superintendent and in my judgment, once the Sessions Judge found that
the claim of the accused was bona fide, then it is impossible to conclude that he had committed the offence of
theft. The main ingredient of the offence is that the article should be taken dishonestly out of the possession
with a view to cause wrongful loss to other person. The accused had no intention whatsoever to cause any
wrongful loss to the police, but in fact desired to present it as a piece of evidence to the Superintendent of
Police. In these circumstances, it is impossible to conclude that the accused was guilty of the offence of theft,
and his conviction recorded by the two Courts below is wholly unsustainable.
Vithal Yedu Khalse vs The State Of Maharashtra on 17 February, 1982
Indian Kanoon - http://indiankanoon.org/doc/753550/ 1
4. Accordingly, the petition succeeds and the rule is made absolute and the order of conviction recorded by the
Judicial Magistrate, First Class, Barshi on August 21, 1980 and confirmed by IV Additional Sessions Judge,
Solapur on March 26, 1981 is set aside and the accused is acquitted. Fine, if paid, shall be refunded. Rule
made absolute.
Vithal Yedu Khalse vs The State Of Maharashtra on 17 February, 1982
Indian Kanoon - http://indiankanoon.org/doc/753550/ 2