STATE OF MAHARASHTRA versus VISHWANATH TUKARAM UMALE & ORS.

Citation: [1980] 1 S.C.R. 190 · Decided: 02-08-1979 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Appeal(s) allowed

Judgment (excerpt)

190 
A 
STATE OF MAHARASHTRA 
v. 
VISHWANATH TUKARAM UMALE & ORS. 
August 2, 1979 
B 
(R. S. SARKARIA, P. N. SHINGHAL AND 0. ClIINNAPPA REDDY, JJ.] 
c 
D 
E 
Railway Property (Unlawful Possession) 
Act, 
1966-S. 
3-Conviction 
under-"Possession of property need not be a subsisting possession."-Suf]icient 
if accused proved to "have been in possession" of property at any point of time. 
Indian Penal Code-S. 379-Transfer of possession of the property however 
tran,sient, lln essential ingredient of an offence of theft. 
Section 3 of the Railway Property (Unlawful Possession) Act, 1966 
pro-
vides penalty for unlawful possession of railway property, the essential require.-
ments being (1) the property in question should be railway property 
(2) 
it 
should reasonably be suspected of having been stolen or unlawfully obtained 
and ( 3) it should be found or proved that the accused was or had been in 
possession of that property. The prosecution alleged that accused 
l, 2, 
5 
(respondents) and the other absconding accused had stolen tyres and 
tub~$ 
fron1 a railway wagon in transit, that accused 1 sold them to accused 3, who 
removed them in his motor Jorry. 
The prosecution further alleged 
that 
accused 3 produced some tyres from bis lorry but sold the remaining tyres to 
accused 4. 
They were later seized from his 
posseision. The 
prosecution, 
therefore, contended that accused 1, 2, 5 and the absconding 
accused were 
proved to "have been found in unlawful possession of railway property", while 
accu~ed 3 and 4 were found in .. unlawful possession thereof" within the mean-
ing of section 3 of the Act. 
The trial magistrate refused to frame a charge under section 3 against any 
of the accused but framed charges under sections 379, 461 and 411 of IPC 
against all the accused. The State's revision application was rejected by the 
Additional Sessions Judge. 
The 1-Iigh Court held that it was not necessary to 
F 
frame the charge under s. 3 of the Act against accused 1, 2, 5 and the abscond-
ing accused but it however, directed that a charge under that section might be 
framed as an alternative charge only against the accused 3 and 4. 
G 
H 
The prosecution evidence had not been recorded. On the questicin whether 
on the allegations made by the prosecution there was justification for framing 
a charge under s. 3 of the Act against the accused 1. 2? S and the absconding 
accused, 
HELD : 1. The question before the Court was whether it could be said 
that the accused were found or were proved to have been in possession of the 
railway property. It was perm:ssible for the prosecution to establish, either 
that the accused were "found" to be in possession of the railway property, or 
that they were proved "to have been" in possession 
thereof. As 
accused 
1, 2, 5 and the absconding accused were not "found" in possession of the rail~ 
way property, it was permissible for the prosecution to allege and prove that 
they had been in possession of that property in order to attract the application 
of sec. 3. 
f193E·F] 
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f 
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• 
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.; 
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MAHARASHTRA V. V. T. UMALE (Shinghal, J.) 
191 
2. In view of the categorical allegations against accused 3 to 4 the High 
A 
Court was right in directing that they should be charged for an offence under 
s. 3 of the Act, 
[193H] 
3. The allegation against accused l, 2, 5 and absconding accused was that 
they had removed the tyres by breaking open the wagon. It is an essential 
ingredient of the offence of "theft" that the movable property which was the 
subject matter of the theft should have been "moved" out of the possession of 
B 
any person without his consent. This could be possible only if the 
person 
moving the property had taken it out of the possession of the person concerned 
and transferred it to his own possession for the purpose of taking it dishonestly. 
Therefore, transfer of possession of the property, however transient is an essen-
tial ingredient of an offence of theft. The allegation against accused 1, 2, 5 
and the absconding accused was therefore to the effect that they "had been 
·in possession" of the railway property in question, and that was sufficient to 
C 
attract the application of s, 3 of the Act. 
[194 B·D, Fl 
4. The High Court erred in taking the· view that it was necessary for the 
purpose of bringing a case under s. 3 to prove that the accused were. found 
to be in possession of the railway property at the time of its seizure, and that 
it \vould n

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