Surendra Vikram Singh Rathore, J. - (1.) By means of this application under Section 482 Cr.P.C., the applicant has made prayer to quash the charge sheet no. - 182 of 2010 arising out of Case Crime No. -338 of 2010 under Section 401 I.P.C., P.S. G.R.P. Charbagh, Lucknow and entire proceedings pending in the Court of Chief Judicial Magistrate, Northern Railway, Lucknow.
(2.) In brief the facts giving arise to the present application are that on 9.7.2010 at about 22:15 hours, the police force of G.R.P. Charbagh received a secret information that a gang of thieves is present behind the Hanuman Temple, then police party reached there and after hearing their conversation they were confirmed that it was a gang of thieves and thereafter police party apprehended three persons on the spot and on interrogation these persons disclosed that by administering narcotic powder, they used to commit theft of the belongings of the passengers of trains. The apprehended accused persons were searched by the police in accordance with law and thereafter the present applicant was found in possession of the narcotic powder and the other accused Rajesh Chandra Joshi was also found in possession of narcotic powder and also one unlicensed knife. Three cases under different sections were registered against the accused persons. Case Crime No. -338 of 2010 under Section 401 I.P.C. was registered against the accused persons in which after investigation the police has submitted charge sheet which is under challenge in the instant application. The other cases were under Sections 8/21/22 N.D.P.S. Act and another under Section 4/25 Arms Act.
(3.) Submission of the learned Counsel for the applicant is that even if the allegations made against the accused persons are taken to be true on its face value even then no offence under Section 401 I.P.C. can be said to have been made out against the applicant. In support of his contention he has placed reliance on the pronouncement of Hon'ble Bombay High Court in the case of Criminal Appeal No. -516 of 2011 Emperor v. Tukaram Malhari, 1912, Cr./L.J.R. page 539 wherein the Hon'ble Apex Court has held as under:- "Under Section 401 of the Penal Code, it has to be determined whether a party of accused persons constitute a gang of persons associated for the purpose of habitual theft, evidence that each individual of the party is a convicted thief is relevant evidence for the purposes of that question. ";