# Anil @ Bablu Srivastava v. State of U.P

- **Citation:** (2011) 3 ILRA 1086
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-21
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-bablu-srivastava-v-state-of-u-p-42043
- **Pages:** 6

## Headnote

A.G.A.

Criminal Appeal-conviction of 10 years
rigorous imprisonment with fine of Rs.
50,000/-for
offence
U/S
412-from
discussion of evidence and considering
the roll of appellant maximum offence
under
Section
411
proved-which
provides maximum punishment of 3
years
rigorous
imprisonment-which
appellant already under gone more than
7 years-due to mistake on part of Trail
Court-Appeal allowed-comviction of 3
years with fine of Rs. 10,000/-modified.

Held: Para 16

In my opinion, only the change under
section 411 I.P.C. is proved beyond all
reasonable
doubts
against
the
appellants, therefore, they are liable to
be
convicted
and
sentenced
under
section 411 I.P.C. in place of section 412
I.P.C.

## Text

1086 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
promotion afresh as per provisions of
law as was in force upto the recruitment
year 2003-04 with utmost expedition.

53. With the aforesaid observations
and directions all the writ petitions
stands disposed of finally
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.09.2011

BEFORE
THE HON'BLE SHRI KANT TRIPATHI,J.

Criminal Appeal u/s 374 Cr.P.C. No. -
4962 of 2006

Anil @ Bablu Srivastava
 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri M.P. Singh Gaur
Sri Gajraj Singh Pal

Counsel for the Respondents:
A.G.A.

Criminal Appeal-conviction of 10 years
rigorous imprisonment with fine of Rs.
50,000/-for
offence
U/S
412-from
discussion of evidence and considering
the roll of appellant maximum offence
under
Section
411
proved-which
provides maximum punishment of 3
years
rigorous
imprisonment-which
appellant already under gone more than
7 years-due to mistake on part of Trail
Court-Appeal allowed-comviction of 3
years with fine of Rs. 10,000/-modified.

Held: Para 16

In my opinion, only the change under
section 411 I.P.C. is proved beyond all
reasonable
doubts
against
the
appellants, therefore, they are liable to
be
convicted
and
sentenced
under
section 411 I.P.C. in place of section 412
I.P.C.

(Delivered by Hon'ble Shri Kant Tripathi,J. )

1. Heard Mr. Gaj Raj Singh Pal for
the appellants Anil @ Bablu Srivastava
and Mohd. Jama @ Salim and learned
AGA for the State and perused the record.

2. These two appeals relate to the
same incident, hence they are disposed of
by this common order.

3. The appellants Anil @ Bablu
Srivastava and Mohd. Jama @ Salim have
preferred
these
appeals
against
the
judgment and order dated 30.06.2006
rendered by Sri D. K. Srivastava, the then
Additional Sessions Judge / Special Judge
(Dacoity Affected Area), Court No. 3,
Budaun in Special Sessions Trials No. 2
of 2003 and 118 of 2003, whereby the
learned Special Judge has convicted and
sentenced each of the appellants under
section 412 I.P.C. to undergo rigorous
imprisonment of ten years and to pay a
fine of Rs. 50,000/- and in default of
payment of fine to undergo additional
imprisonment of three years.

4. The prosecution story leading to
this appeal in nutshell is that on
19.04.2002 Mr. Pramod Kumar Agrawal,
Assistant Administrative Officer, Life
Insurance Corporation of India, branch
Budaun, went to the Oriental Bank of
Commerce, branch Indrachowk, Budaun
on his car to deposit Rs. 3,69,073/- along
with the Life Insurance Corporation of
India's officials Saligram and Ram
Prakash. The aforesaid amount had been
kept in a locked iron box. He reached the
bank at about 1.15 P.M. When he came
out of the car, one miscreant shot at the
3 All] Anil @ Bablu Srivastava V. State of U.P.
1087
aforesaid official Saligram and snatched
away the entire cash amount of Rs.
3,69,073/-. The miscreant after snatching
away the cash amount moved towards an
already started motorcycle lying near the
car under the control of another person
who had been waiting for the miscreant
who robbed the case box, and, thereafter,
both of them fled away on that
motorcycle towards Indrachowk. There
were two other miscreants on a different
motorcyle, who also fled away following
the first motorcyclists. It further appears
that
all
the
miscreants
had
prior
information regarding the aforesaid cash
amount and had arrived in the bank in
advance to commit the robbery. The
Assistant Administrative Officer, Mr.
Pramod Kumar Agrawal, lodged the
F.I.R. Ext.Ka-1. on the same day at about
14.15 hrs. at the Police Station-Civil
Lines, Budaun, on which basis the police
registered the case vide crime no. 339 of
2002 under sections 394/397 I.P.C. and
proceeded to hold the investigation. The
appellants Anil @ Bablu Srivastava and
Mohd. Jama @ Salim were arrested by
the police of police station-Rajepur,
District-Farrukhabad in another case and
on their arrest, they informed the police of
police station-Rajepur that they were
involved in committing the aforesaid
robbery.

5. On 24.07.2002, PW-7, Omveer
Singh, the Investigating Officer received
information regarding the arrests and the
confessional statements of the appellants
and then he went Farrukhabad and
recorded their statements on 24.07.2002 .
The
Investigating
Officer
took
the
appellants
on
police
remand
on
13.08.2002 and recovered Rs. 14,000/- on
their pointing and after concluding the
investigation found a prima facie case
against the appellants and accordingly
filed a charge-sheet against them.

6. The co-accused persons, namely,
Ahmad Raja and Fareedul have already
been acquitted, therefore, it is not
necessary to refer to the facts relating to
the said co-accused persons.

7. The learned trial court framed the
charges under sections 394, 397 and 412
I.P.C. against the appellants who denied
the charges and claimed to be tried.

8. The prosecution examined as
many as seven witnesses to prove the
aforesaid charges. PW-1, Pramod Kumar
Agrawal is the complainant, who has
proved the F.I.R. Ext. Ka-1 and the story
of the robbery. PW-2, Saligram and PW3, Ram Prakash, who were Life Insurance
Corporation of India's officials, have also
supported
the
prosecution
story
of
robbery.
PW-4,
Fateh
Singh,
Subinspector, and PW-7, Omveer Singh, the
Investigating Officer, who made the
recovery at the instance of the appellants,
have proved the recovery of the cash
amount of Rs. 14,000/-. PW-5 Jamil
Ahmad has proved the chick report and
other formal papers. PW-6 Yashveer
Singh and PW-7, Omveer Singh had
investigated the matter, who have proved
the charge-sheet and other formal papers.

9. The learned trial court examined
the appellants under section 313 I.P.C.
They denied the charges and stated that
they have been falsely implicated on
account of a political rivalry.

10. The learned trial court has held
that the charges under sections 394/397
were not proved beyond all reasonable
doubts
against
the
appellants
and
1088 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
accordingly acquitted them of the charges
under sections 394/397 I.P.C. The learned
trial court, however, believed the story
relating to the recovery of Rs. 14,000/- at
the instance of both the appellants and
found that they had the recovered money
in their possession knowing well that the
same was a robbed property, therefore,
according to the learned trial court the
charge under section 412 I.P.C. was
proved beyond all reasonable doubts
against the appellants. The learned trial
court
accordingly
convicted
and
sentenced them as aforesaid.

11. Mr. Gaj Raj Singh Pal, learned
counsel for the appellants submitted that
he would not press the appeal on merit as
he has nothing to contend against the
finding of the learned trial court that the
recovery of Rs. 14,000/- was made not
only the basis of the informations
furnished by the appellants to the police
but also on their pointing and the same
was the money which had been robbed in
the manner alleged by the prosecution.

12. Mr. Gaj Raj Singh Pal further
submitted that according to the allegations
made in the F.I.R., it was an incident of
robbery, therefore, the conviction of the
appellants under section 412 I.P.C. was
not proper. According to the learned
counsel only the offence under section
411 I.P.C. was made out but the learned
trial court ignored this material aspect of
the matter and wrongly arrived at the
conclusion that the offence under section
412 I.P.C. was made out.

13. In view of the fact that the
learned counsel for the appellants did not
dispute the factum of recovery at the
instance of the appellants, the recovery,
which has been fully proved by PW-4,
Fateh Singh and PW-7, Omveer Singh,
appears to be believable. PW-4, Fateh
Singh, was posted as a Sub-Inspector at
the Police Station-Civil Lines, DistrictBudaun at the time of recovery. PW-7,
Omveer Singh, was the Station Officer,
Police
Station-Civil
Lines,
DistrictBudaun and had also investigated the
matter.
These
two
witnesses
have
categorically deposed that on 24.07.2002
they received an information regarding
arrests of the appellants by the police of
Police
Station
Rajepur,
DistrictFarrukhabad and also regarding their
confessional statements that they had
been involved in committing the aforesaid
robbery. On receiving this information,
PW-7,
Omveer
Singh
went
to
Farrukhabad jail on 24.07.2002 itself and
recorded the confessional statements of
the appellants and on the basis of their
statements took both of them on remand
to police custody and again interrogated
them, who made the statements that they
had kept the robbed box containing Rs.
14,000/- in the field of appellant Mohd.
Jama @ Salim situating in village
Khaspura, Police Station Kunwar Gaon.
Thereafter, both the appellants took PW4, Fateh Singh and PW-7, Omveer Singh
to the field of the appellant Mohd. Jama
@ Salim and got recovered a tin box
containing cash amount of Rs. 14,000/-
which had been embedded in the earth.
There were 44 currency notes of the
denomination of Rs. 100/-, 92 currency
notes of the denomination of Rs. 50/- and
four packets each of 100 currency notes
of Rs. 10/- denomination. Each packets of
the
currency
notes
of
Rs.
10/-
denomination had seal of the Life
Insurance
Corporation.
PW-4,
Fateh
Singh and PW-7, Omveer Singh sealed
the recovered articles on the spot and
prepared the recovery memo Ext. Ka-2
3 All] Anil @ Bablu Srivastava V. State of U.P.
1089
and obtained signatures of the appellants
thereon. It may also mentioned that the
prosecution
produced
the
recovered
currency notes and the tin box in the court
during the trial, which were proved by the
aforesaid witnesses and are on record as
material Ext. 1 to 8. The learned counsel
for the appellants have cross examined the
witnesses PW-4, Fateh Singh and PW-7,
Omveer Singh at length but nothing
material could be brought on record to
discredit their testimonies. In my opinion,
the learned trial court has rightly believed
the prosecution case that the robbed
currency notes of Rs. 14,000/- were
recovered on the basis of the disclosure
made by the appellants to the police and
also on their pointing, therefore, the
prosecution has succeeded in proving that
the appellants were found in possession of
the currency notes of Rs. 14,000/- which
had been robbed in the aforesaid incident.
It is, thus, abundantly clear that the place
of concealment of the tin box containing
the aforesaid cash amount of Rs. 14,000/-
was peculiarly within the knowledge of
the appellants, therefore, they must be
held to be in conscious and exclusive
possession of the robbed amount of Rs.
14,000/- along with the tin box. Where
the place of concealment of robbed or
stolen property is peculiarly within the
knowledge of the accused and that
property is recovered as a result of the
information given by the accused or on
his producing the property from the place
of concealment, the only conclusion that
can be inferred from such circumstance is
that the accused was in conscious and
exclusive possession of the property.
Another important aspect of the matter is
that the packets of the currency notes of
the denomination of Rs. 10/- recovered as
aforesaid had seal of the Life Insurance
Corporation, therefore, it can be also
inferred
that
the
appellants
had
knowledge or reason to believe that the
currency notes were stolen properties. To
this extent the finding of the learned trial
court which is based on relevant materials
and has also not been disputed by the
learned counsel for the appellants, seems
to be perfectly correct and is accordingly
affirmed.

14. The contention of the learned
counsel for the appellants that the offence
under section 412 I.P.C. was not made out
has sufficient merit. Section 412 I.P.C.
provides
for
the
punishment
of
dishonestly receiving any property stolen
in the commission of a dacoity. Therefore,
for constituting the offence under section
412 I.P.C. one of the essential elements to
be proved by the prosecution is that the
property recovered from the possession of
the accused had been stolen in a dacoity.
If no offence of dacoity has been
committed with regard to the recovered
property, the question of convicting the
accused under section 412 I.P.C. does not
arise. In order to establish the charge
under section 412 I.P.C. the other element
to be proved by the prosecution is the
knowledge of the accused that the
recovered property was stolen in a
dacoity. In other words, if the accused
while possessing a property being the
subject matter of a dacoity, did not know,
nor had any reason to believe, that the
property was stolen in a dacoity, his
conviction under section 412 I.P.C.
cannot be upheld. On the other hand,
section 411 I.P.C. provides for the
punishment of dishonestly receiving or
retaining stolen property. Section 410
I.P.C. defines "stolen property" according
to which, the property whose possession
is transferred by the robbery is also stolen
property, therefore, if any robbery is
1090 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
committed in respect of any property and
any person dishonestly receives or retains
that property knowing or having reason to
believe the same to be stolen, he will be
guilty of the offence under section 411
I.P.C. and not under section 412 I.P.C.

15. The present case needs to be
examined in the back drop of the
aforesaid
principle.
Admittedly,
the
miscreants who had snatched away the
box containing Rs. 3,69,073/- were only
four in number and there is no allegations
or evidence that the number of the
accused persons were five or more. To
constitute the offence of dacoity, the
number of accused must be five or more.
If the number of the accused is less than
five, the offence will be robbery and not
the dacoity. In other words, an offence of
robbery becomes the offence of dacoity
when it is committed by five or more
persons conjointly. Since, in the present
case, only four persons are alleged to have
committed the robbery, therefore, it was
not a case of the commission of the
offence of dacoity. In this view of the
matter, the learned trial court has
committed material illegality in arriving
at the conclusion that the offence under
section 412 I.P.C. was made out. To this
extent the finding of the learned court
below, being perverse and illegal, cannot
be upheld.

16. In my opinion, only the change
under section 411 I.P.C. is proved beyond
all
reasonable
doubts
against
the
appellants, therefore, they are liable to be
convicted and sentenced under section
411 I.P.C. in place of section 412 I.P.C.

17. The maximum sentence of
imprisonment provided for the section
411 I.P.C. is of three years only,
therefore, the sentence of ten years
rigorous imprisonment and a fine of Rs.
50,000/- and in default of payment of fine
additional rigorous imprisonment of three
years
passed
against
each
of
the
appellants cannot be uphled. The learned
counsel for the appellants informed that
the appellants are in custody in the
present
matter
from
April,
2002,
therefore, they are in prison since last
more than seven years and five month
against the maximum sentence of three
years only due to the glaring error
attributable on the part of the learned
Special Judge. In this view of the matter,
the further detention of the appellants in
custody seems to be wholly unjust.

18. Both the appeals are therefore
partly allowed. Each of the appellants
Anil @ Babloo Srivastava and Mohd.
Jama @ Salim is convicted and sentenced
under section 411 I.P.C. in place of
section 412 I.P.C. to undergo rigorous
imprisonment of three years and also to
pay a fine of rupees ten thousand and in
default of payment of fine to undergo
additional rigorous imprisonment of one
year. The sentence passed by the learned
trial court stands modified accordingly. If
the appellants have already served out the
sentence passed by this Court, they shall
be set at liberty forthwith if not already in
custody in some other case.

19. The period during which the
appellants remained in custody as under
trials shall be given due adjustment under
section
428
of
Code
of
Criminal
Procedure while calculating the period of
sentence.

20. Let a copy of this judgment
along with the lower court record be
3 All] Jag Prasad V. Deputy District Magistrate and others
1091
transmitted forthwith to the learned trial
court for immediate compliance.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.09.2011

BEFORE
THE HON'BLE UMA NATH SINGH, J.
THE HON'BLE ANIL KUMAR, J.

Writ Petition No.8763 (MB) of 2011

Jag Prasad

 ...Petitioner
Versus
Deputy District Magistrate and others

 ... Opp. Parties

Constitution of India, Article 226-order
passed by Sub Divisional Magistrate-for
enforcement of order passed by D.D.C.-
held without jurisdiction-a state or its
officer can not be allowed to effect the
right of citizen-unless such act supported
by statutory provision.

Held: Para 5

On
due
consideration
of
rival
submissions, we are of the view that the
Sub Divisional Magistrate could not have
passed the impugned order as it is not
evident from the records that there was
the institution of any proceeding by way
of complaint under Sections 144, 145 or
146 Cr.P.C. which was pending with him.
Moreover, it also does not appear that
there was any law and order problem
which could have necessitated passing of
such
an
order
as
impugned
and
moreover, such orders should always be
based on the report submitted by the
Police Officer, which is conspicuous by
absence in this case.
Case law discussed:
All CJ 2002, 1110 (State of West Bengal vs.
Vishnunarayan & Associates (P) Ltd.); 1995
(13) LCD 519; 2001 (Suppl.) R.D. 68

(Delivered by Hon'ble Uma Nath Singh,J.)

1. Heard Shri M.A.Siddiqui, learned
counsel for petitioner, learned Chief
Standing Counsel for opposite parties 1 to 3,
Shri Balram Yadav, learned counsel
appearing for opposite party no.4 and
perused the pleadings of writ petition.

2. Learned counsel for petitioner
submitted that towards the implementation
of order passed by Deputy Director of
Consolidation in a proceeding under
Section 48 of U.P. Consolidation of
Holdings Act (For short 'The Consolidation
Act'), the Sub Divisional Magistrate
concerned has passed the impugned order
which is not sustainable as it is not
supported by any authority of law, in
particular, under Sections 145,146,147 and
148 of the Code of Criminal Procedure.

3. On the other hand, learned counsel
for private opposite party no.4 contended
that the Sub Divisional Magistrate being the
Executive Magistrate is also an executing
authority, therefore, he has ample powers to
ensure the compliance of any order passed
in civil litigation by exercising the powers
under Cr.P.C. Moreover since, the Sub
Divisional Magistrate has also the powers to
maintain law and order, on having received
a complaint towards the enforcement of
order passed in a civil litigation, he can see
as to whether there is a law and order
problem, and may even also verify the
status of possession of property. Thus the
order like the one impugned herein, has
been correctly passed.

4. In support of his submission,
learned counsel for private respondents
referred to a judgment of learned Single
Judge of this Court reported in 1995 (13)
LCD 519 (Harpal vs. State of U.P. &