Abdul Rashid and Ors. vs.

Nausher Ali
By
Ashutosh Vasistha
-
April 29, 2019
0
241

In the Calcutta High Court

Case No.

Cr. Revision No.: 1570 of 1978

Equivalent Citation:

1979 Cr.L.J. 1158

Appellants

Abdul Rashid and Ors.

Respondent

Nausher Ali

Decided on

10th April, 1979

Bench

Justice Monoj Kumar Mukherjee

Background

Upon a suit filed by respondent, in the present case Nausher Ali, the learned Sub-divisional Judicial
Magistrate, Arambagh took cognizance of the offence punishable under §§ 395 and 397 of Indian Penal
Code (I.P.C.) against 11 petitioners. On being satisfied from the statements of witness, the learned
Magistrate was of view that there is a prime facie case against the accused.

Aggrieved by the impugned order of the lower court, petitioners moved to the High court for quashing
the proceedings going on in the present case and prayed the Honorable Court to provide adequate relief
against the order of subordinate court which has not followed the justified procedure.

Statute and provisions involved:

• Section 390, 395, 397 of I.P.C.

• Section 202 of the Criminal procedure Code, 1973 (Cr.P.C.)

Issues Dealt:
1. Whether the material on record make out prima facie case under Sections 395/397 of I.P.C. against
petitioners or not?

2. Whether the learned Magistrate is justifiable in taking such cognizance or not?

Facts

On 5th June, 1978 the petitioners formed an unlawful assembly in the land of complainant armed with
deadly weapons and they started tilling crops of the complainant. When the complainant started
protesting and resisting their actions, Abdul Rehman threatened him saying that if he would inform
anybody, he would kill the complainant. Whenever complainant tried to forbid him from doing such
acts on his land, the accused persons started abusing him and used filthy language against him.

The unlawful assembly regularly threatened the complainant to kill him and to destroy his house with
fire or to do other mischief in case he informs anyone regarding this activity. However, the victim filed
a suit against 11 petitioners, for trespass and robbery in the Sessions Court of Arambagh. The Sessions
judge found prime facie case against the accused and order for the proceedings accordingly.

Contentions of both the parties:

Petitioners

Counsel on behalf of petitioners: S.G. Poddar

The learned counsel appearing for petitioner contended that the material on record does not form a
prime facie case against the petitioners. It was contended that in order to transform an offence of theft
into robbery, one has to prove certain essentials of § 390 that accused while committing theft should
also attempt for injury or instill fear of injury on victim or any person thereof.

The petitioner argued that in the present case there was neither an attempt to cause injury nor instilling
of fear on the victim. Hence the establishment of prime facie case of robbery by the lower court is not
according to the principles of law, so the order must be set aside.
Respondents

Counsel on behalf of respondent: S.A. Khan

It was contended by respondents that Abdul Rashid and 10 others accompanying him were possessing
deadly weapon at the time when they were entering complainant’s premises which in itself is a proof
that the intentions of unlawful assembly were not correct and they had several times warned the
complainant of killing him if he continues his protest.

They also argued that Abdul Rashid and 10 others accompanying him used to abuse him and threaten
him of destroying his house with fire and kill him if he was to inform anybody regarding this activity.
These kinds of warning are enough to instill fear of injury which forms basis of robbery and hence the
order made by Sessions Judge is fully justifiable.

Judgment:

It was held by the High Court of Calcutta that none of the allegations raised by complainant were
capable enough to prove prima facie case against petitioners. It was also mentioned by Honorable
Justice M.K. Mukherjee that complainant was not able to prove the presence of threat by the acts of
petitioners in order to take cognizance against under § 390 of I.P.C.

It was also established in this case that use of violence will not be able to transform offence of theft to
robbery unless such violence is used for meeting the ends specified in § 390 i.e. to cause harm,
wrongful restraint, and fear of death or instant hurt. If the complainant is able to prove voluntary use
of force to meet above mentioned ends, then a theft can be transformed into robbery.

Overview of the Judgment:

The Honorable Judge must have considered the fact that in the present case Abdul Rehman and 10
others were possessing deadly weapons with them, and they were constantly warning complainant that
if does any kind of protest then they will fire his house or will kill him. I believe that these kinds of
heinous warnings are enough for an ordinary man to instill fear of injury or death in his mind. Also the
fact that along with Abdul Rehman and 10 other person were accompanying with weapons him is an
enough to prove that an attempt can be easily made by the accused.
Concepts Highlighted in the Case

In the present case it was highlighted that in order to transform an offence of theft into robbery one has
to prove that there was voluntary use of violence and it was made in order to hurt, kill, or instill fear
of injury in the mind of victim. Mere execution of force is not enough to transform unless it is made to
achieve ends specified in section 390 of I.P.C.

Conclusion

It can be concluded that in order to transform the offence of theft to robbery one has to prove that there
was a voluntary execution of violence and the execution was made in such a way that it was capable
enough to meet the essentials of § 390 of I.P.C. i.e. attempt to hurt, kill, or instill fill of injury or death
in the mind of victim.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje