UMESHWAR PANDEY,J. - (1.) HEARD learned Counsel for the petitioner and the learned A.G.A.
(2.) THE petitioner by means of this petition has sought to quash the charge -sheet submitted by Kubersthan Police Station of District Kushinagar in Case Crime No. 34 of 2005 under Sections 379 and 411 I.P.C. and also the proceedings arising therefrom in Criminal Case No. 451 of 2005 pending before the A.C.J.M., Kasia District Kushinagar. It has been submitted by the learned Counsel that this nothing but a frivolous case in which the police has submitted charge - sheet in a matter of theft upon its own report. A Jeep with Registration No. UPI -169 is said to have been recovered from a place in front of the petitioner's house by the police and on that basis only the matter was taken to be a recovery of suspected theft property under Section 411 I.P.C. The learned Counsel further contends that the matter was investigated and no person has come to claim the ownership of the recovered Jeep. The petitioner never claimed his title over the vehicle. Therefore, the property has never been claimed by any one claiming to be its owner and there is no allegation of theft against the petitioner. There was hardly any material on which the police could have submitted the charge -sheet in this case. The learned Counsel has also given reference to the evidence of two witnesses recorded by the police during investigation. They are Shailendra Mishra and Indrajeet Mishra. Their statements have been filed as Annexures -5 and 6 to the affidavit.
(3.) IN order to constitute the offence of theft it is imperative on the part of the prosecution to establish that the movable property has been taken away dishonestly out of the possession of any person without his consent. The definition of theft as given in Section 378 I.P.C. is quoted below: Section 378. - Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Explanation 1. - A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earthy. Explanation 2. - A moving effected by the same act which effects the severance may be a theft. Explanation 3. - A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. Explanation 4. - A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal. Explanation 5. - The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied. ;