Full Judgment
CRR No.216/2013 Criminal Revision No.216/2013 12.3.2013 Shri A.D.Mishra, counsel for the applicants.
Shri G.S.Thakur, Panel Lawyer for the State/ respondent.
As prayed, heard the learned counsel for the parties finally.
The applicants have challenged the order dated 3.1.2013 passed by the learned Third Additional Sessions Judge, Sagar in S.T.No.386/2012, whereby the charges of offence punishable under section 392 read with section 34 of IPC were framed against the applicants.
The prosecution's case, in short, is that, initially the applicant Amit went to the complainant and asked for a cigarette.
Thereafter, he brought the cigarette from the applicant Shailu and the applicant Amit consumed the cigarette alongwith the complainant to divert his attention from his bag and thereafter, the third accused snatched the bag and went away.
Thereafter, the complainant promised to the applicants that if they will get his bag back then, the complainant shall give a prize of Rs.1,000/-, if his bag is returned.
The applicant informed that the bag of the complainant was lying at a particular place.
When the complainant opened the bag, his mobile was missing.
However, the complainant had CRR No.216/2013 lodged an FIR and a charge-sheet was filed and trial was proceeded.
After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, at present, it cannot be said that there was no connivance of the applicants with the person, who took the bag.
However, it is apparent from the story narrated by the complainant in the FIR that the bag was lying near the complainant and it was taken by the accused Rahul and therefore, in taking that bag or after that incident, no assault or criminal force was used by any of the accused persons and therefore, according to the definition of robbery under section 390 of IPC, the overt-acts of the applicants do not fall within the purview of robbery.
It remains within the purview of section 379 of IPC.
The learned Additional Sessions Judge has framed the charges of offence punishable under section 392 read with section 34 of IPC, whereas the charges of offence punishable under section 379 read with section 34 of IPC would be framed against the applicants.
The learned Additional Sessions Judge has committed an error of law in framing of such charges and therefore, it is fit case, in which CRR No.216/2013 an interference is required from the side of this Court, by way of a revision.
Consequently, the present revision filed by the applicants is hereby partly allowed.
The order dated 3.1.2013 relating to framing of charges of offence punishable under section 392 read with section 34 of IPC is hereby set aside.
The applicants are discharged from the charges of offence punishable under section 392 read with section 34 of IPC but, the trial Court is directed to proceed under section 228 of the Cr.P.C., so that the charges of offence punishable under section 379 read with section 34 of IPC shall be framed against the applicants.
A copy of the order be sent to the trial Court for information and compliance.
(N.K.GUPTA) JUDGE Pushpendra