P L D 1963 Dacca 719 (PLP)

This case is not very much to the point inasmuch as the question was as to whether when on the same facts accused was once acquitted of the charge under section 379, he could be tried again for dacoity.

14. Next decision cited is that of Emperor v. Sheo Charan (I L R 45 All. 485), a Division Bench decision of 1923 in which it was held that a person found in possession of stolen property identified as belonging to different owners cannot be convicted of several offences of receiving in respect of property identified by each owner, unless there is evidence to prove that they were received by him at different times.

15. This case seems to be a case of quashing a pending proceeding though it is not clear from the petty judgment of two pages.

16. The next decision cited is that of King‑Emperor v. Bishun Singh (I L R (1924) 3 Pat. 503), which is again a Division Bench decision of which the facts and decisions are as under: --‑ "In the house belonging to L and B, two brothers, three items of stolen property were discovered, namely, a quantity of unused postage stamps, some carpets and some buckets and padlocks. The police sent up the accused under three charge sheets. There was no evidence to show that the stamps and carpets had been received by the brothers on different dates. The latter were tried under section 411, Penal Code, on a charge of dishonestly retaining the carpets, L being acquitted and B convicted. Proceedings against L and B were also instituted under section 411, in respect of dishonest retention of the stamps. The accused pleaded that as the stamps had been discovered at their house on the same date and at the same place as the carpets only one offence in respect of these two items of property had been committed and that as they had already been tried in respect of the carpets they could not be tried in respect of the stamps. The trial Court accepted this plea and acquitted the accused‑-- Held, on appeal by the Crown, that the accused had been properly acquitted."

17. He has next cited the decision in Sambasivam v. The Public Prosecutor, Federation of Malaya (54 C W N 695), a Privy Council decision in which it was held inter alia that the effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not only that the person acquitted cannot be tried again for the same offence but that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.

18. The maxim "res judacata proveritate accipitur" is no less applicable to criminal than to civil proceedings. This was really a decision on the effect of acquittal on retrial when the charges were inter‑connected and as such not quite to the point.

19. Mr. Amirul Islam Choudhury, learned counsel appearing for the State has relied on the decision in Dadlonnul and others v. Emperor (27 Cr. L J 1256) a decision of two Judges in which it was held as follows :‑ "Where property is stolen at different dates, the presumption is that the property passed from the hands of thief to the receiver of the stolen property at different dates and the burden is shifted from the Crown to the accused to prove that it passed to him at one and the same time. In the absence of such proof, a subsequent trial in respect of different items of property stolen on a different date is not barred by the provisions of section 403, Cr. P. C. by reason of a prior acquittal with regard to another item of property."

20. The cases as cited above by the learned Advocate for the petitioner with the exception of the Sind case cited by the learned counsel for the State seems to lay down that on a charge of receiving stolen property recovered on the same date from the possession of the accused, no matter how various those articles, how different are the owners, there could be one and only one trial that the acquittal or conviction in one case acts as a bar, to the subsequent trial ; that the onus is on the prosecution to show that the stolen properties were received on different dates and not all together on the same date. In other words, seizure and recovery on the same date will act as a bar to subsequent trial unless it is proved by the prosecution that the articles were received on different dates by the accused.

21. The Sind decision, that of 27 Criminal Law Journal, 1256, raises the presumption against the accused when property is stolen at different dates. The presumption in such a case would be that accused received the properties on different dates and the burden is shifted to the accused to prove that it passed to him at one and the same time.

22. This decision has not found approval, it seems, with the other High Courts.

23. In the case before us we find that in the previous cast, namely, No. 421 in which the accused was acquitted the com plainant is dated 6th April 1960, by Fazlur Rahman submitted on 9th April 1960. Theft was stated to be of Hercules cycle, paddy and pair of old shoes on the night of 2nd April 1960. Cycle only was recovered on 21st April 1960 from the possession of the accused. The charge‑sheet was submitted on 22nd May 1960 and the charge is dated 27th June 1960. The petitioner was the only accused.

24. In the case sought to be quashed, that is No. 410 of 1960, the complainant is a different person, Efazuddin and the complainant is dated 4th April 1960, two days earlier than the other one, though filed on the same date as in the other one, namely, 9th April 1960.

25. The theft is stated to have taken place on 3rd April 1960 and the subject‑matter of theft according to complaint was cycle, gramophone records, Singer machine and other articles: Those were recovered on the same date viz., 21‑4‑

60. Charge sheet was submitted in this case on 29th April 1960 and the charge is dated 25‑7‑

60. Further in the present case as many as eight persons including the petitioner were made accused on the charge under section 411 of the Pakistan Penal Code and the articles have been alleged to be of different persons though mostly of Suklal Agarwala P. W. 4 in the case.

26. Recovery by the police in both cases, it appears, was on (he same date although the theft were of different dates and the articles belonging to different persons. The charge in both cases was that be dishonestly retained on 21‑4‑60.

27. It is possible that in course of the same date 21st April 1960, the police made two drives, but that is not clear from the evidence. The evidence in the two cases only states that police recovered on 21st April 1960. The mere fact that there were two thefts, one on 2nd April 1960 and the other on 3rd April 1960 and these in different houses, does not necessarily prove that petitioner received them on different dates.

28. In the light of the decisions advanced by the defence the onus is heavily on the prosecution to prove that the receiving was on different dates, a task which I should say has not been fulfilled by the prosecution and indeed very difficult to achieve.

29. The charge in both the cases, however, is directly that of the accused, dishonestly retaining stolen properties and the word received is not there. Further the present proceedings being against several other accused also, the question of quashing the whole proceeding does not arise.

30. Retaining an article of stolen property being a continuing offence, the acquittal of the present petitioner in the other case has not created a bar to the present proceedings in respect of a greater number of articles belonging to a different person.

31. My present view is supported by the decision in Yamanappa Joteppa v. Emperor (48 Cr. L J 873), a Division Bench decision of the Bombay High Court in which it was held that retaining stolen property is a continuing offence and if an accused is previously acquitted of an offence of retaining articles of stolen property, subsequent prosecution under section 412 in respect of greater number of articles is not barred though they might have been received at the same time as those in question in the previous trial.

32. No decision has been cited at the bar to show that this distinction between "retaining and "receiving" is not well‑founded.

33. It may be mentioned here as pointed out by the learned counsel for the State that none of the cases cited on behalf of the defence except perhaps faintly the decision in I L R 45 All. 485 relates to quashing a pending subsequent trial.

34. Further the charge‑sheet and the charge in the other case shows that on 21st April 1960 only one Hercules cycle was recovered from the possession of the petitioner while the charge sheet and the charge of the present pending case shows that the Singer machine and gramophone records were recovered from the petitioner on 21st April 1960 same day indicating that there were two occasions of search in course of the same day and in one of the occasions only the Hercules cycle was found in possession of the petitioner and on the other occasion the Singer machine and the gramophone records were so found. This is, however, not very clear from the evidence as stated before. In any view of the case, therefore, the petition is bound to fail. The Rule is, therefore, discharged and the stay order is vacated. K. B. A. Rule discharged.