TMI Blog1958 (10) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... of an ashramam known as Srinivasa Asharamam near Dusi village. P. W. 1 had purchased the press from one Pappala China Kamadasu examined as P. W. 4 under Ex. P-l dated 21-11-1955, which is a registered agreement for the sale of the press, for ₹ 4,000/-. Out of this sale consideration, ₹ 3,500/- was paid at the time of execution of Ex. P-1 and, subsequently, the balance of ₹ 500/- was paid on 10-1-1956, as evidenced by Ex. P-2. Prior to the sale of the press to P. W. 1, the press was registered in the name of P. W. 4 who was declared the keeper and proprietor of the press under Section 4 of the Press and Registration of Books Act (Act XXV of 1867). 4. Some time prior to 25-3-1956, the date of the offence, the complainant, p. W. 1, had left for Kurnool after locking the room in which the press was located. On the night of 25-3-1956, the case for the prosecution is, that accused 1 and 3, taking advantage of the absence of P. W. 1 from the village, broke open the lock of the room and with the assistance of some cart-men removed the press, in portions, by bullock-carts to the house of the first accused in the village of Korlakota. This is said to have happened ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of books or papers, who shall not have made and subscribed the following declaration before the Magistrate within whose local jurisdiction such press may be: I, A. B., declare that I have a press for printing at ... And this last blank shall be filled up with a true and precise description of the place where such press may be situate . Section 5 of the Act also requires to be noticed and is as follows: No newspaper shall be published in the States except in conformity with the rules hereinafter laid down: (1) Every copy of every such newspaper shall contain the name of the person who is the editor thereof printed clearly on such copy as the name of the editor of that newspaper; (2) The printer and the publisher of every such newspaper shall appear in person or by agent authorised in this behalf in accordance with rules made under Section 20, before a District, Presidency or Sub Divisional Magistrate within whose local jurisdiction such newspaper shall be printed or published, or such printer or publisher resides, and snail make and subscribe, in duplicate, the following declaration: I. A. B., declare that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also prescribe incidental penalties in respect of the keeper of a press and are in the following terms: 14. Any person who shall in making any declaration under the authority of this Act, make a statement, which is false, and which he either knows or believes to be fake or does not believe to be true, shall on conviction before a Magistrate, be punished by fine not exceeding two thousand rupees, and imprisonment for a term not exceeding six months. 15. Whoever, shall edit, print or publish any newspaper without conforming to the rules hereinbefore laid down, or whoever shall edit, print or publish, or shall cause to be edited, printed or published, any newspaper, knowing that the said rules have not been observed with respect to that newspaper, shall, on conviction before a Magistrate, be punished, with fine not exceeding two thousand rupees or imprisonment for a term not exceeding six months or Doth. It may be seen from the above provisions that the law requires that a keeper of a press should make a declaration before the competent Magistrate which should be authenticated by the Magistrate and deposit one copy of the declaration with the latter and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to such taking is said to commit theft.' Section 379 is the punishment section, which provides for a punishment of three years imprisonment or fine or both. Section 380 I. P. C. relates to an aggravated form of theft, that is, theft in a dwelling house and a higher punishment namely, of seven years imprisonment and fine is prescribed. It runs thus: Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. It may be seen from the above sections that the following ingredients of the offence have got to be established before the offence could be said to have been brought home to the accused persons charged in this case: 1. The movable property must have been taken out of the possession of a person. 2. Such taking should have been without that person's consent. 3. In order to the taking of the property, the property in question should have been moved and such moving should have been done intendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . C. and hence all the ingredients that are necessary to be proved for establishing the offence under Section 380 I. P. C. are shown to be present in this case. It is contended by the learned counsel for the accused 1 and 3 that the act of the accused in removing the press from out of the custody of the complainant was done under a bona fide claim to the press as the rightful owners and as such the accused could not be held to have committed any offence in this case. There is, in my opinion, no merit in this contention. At the outset, it must be noticed that the removal could not have been bona fide as under law the accused could not lawfully keep the press in their possession at the time of its removal having regard to the provisions of the Press and Registration of Books Act extracted above. Further, to a charge of theft, the plea that the property was removed under a bona fide claim of right would not avail. For example, a person who bona fide believes that the fountain pen on his neighbor's desk is his has no right in law to trespass into the neighbour's house snatch away the pen without the latter's consent. The offence or theft is essentially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at whatever sentence the appellate court awards, must be deemed to be the sentence which the Judl. Second Class Magistrate himself should have awarded in the first instance and this punishment is delimited by the provision of Section 32 Cr. P. C. It would not therefore be open to the High Court to award a sentence higher than the sentence which the Judicial Second Class Magistrate himself could have awarded under law; for. to hold otherwise, would imply that the Judl. Second Class Magistrate had awarded a sentence beyond the limits imposed on him by law. Such a sentence would not be a sentence according to law within the meaning of Section 423 Cr. P. C. This conclusion is further strengthened by a reference to Section 439(3) Cr. P. C. which is as follows: Where the sentence dealt with under this Section has been passed by a Magistrate acting otherwise than under Section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Presidency Magistrate or a Magistrate of the first class. This section limits the powers of the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not instituted on a police report, the procedure envisaged under Section 251-A has no application and the procedure followed by the Magistrate in acquitting accused 2 and 4 under Section 251-A (11) is not in conformity with law. The correct procedure that should have been followed by the Magistrate in this case is what is contained in Sections 252 to 259 Cr. P. C. IF the Magistrate felt that the prosecution had not proved the case against accused 2 and 4 he should have acquitted them under Section 258(1) Cr. P. C. but as no miscarriage of justice has resulted by reason of this irregularity, I consider that the same is curable under Section 537 Cr. P. C. and therefore calls for no interference in the matter. . 17. It is also noticed that the learned Judl. Second Class Magistrate awarded a sentence of imprisonment till the rising of the Court, obviously because Section 380 I. P. C. made it obligatory to award both imprisonment and fine. Apart from the fact that the sentence is unjustifiably lenient, the sentence of imprisonment till the rising of the Court is unknown to law, for the sentence of imprisonment involves the suffering of it outside the custody of the Court. On ..... X X X X Extracts X X X X X X X X Extracts X X X X
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