Possession of Stolen Mobile would not amount to commission of offence u/s 411 IPC by Rakesh Kumar Singh

LatestLaws.in Possession of stolen mobile cannot amount to offence u/s 411 IPC: by Rakesh Kumar Singh

We know that police is normally arresting a person found with stolen mobile and chargesheeting him for an offence punishable under Section-411 of IPC. his offence is non-bailable in nature and therefore! such person remains in "ail for se#eral days$months depending depending upon the fact as to in which court%s court%s "urisdiction his case falls.

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he he pres presen entt pape paperr disc discus usse sess if the the act acti# i#ity ity of of poli police ce on on this this cou count nt is "us "usti tifi fied ed or or not not or the the

same infringes the fundamental right of liberty granted by the Constitution of India. In this paper! paper! to arri#e at a clear conclusion we will take help of rele#ant pro#isions from CrPC! IPC! Information echnology 'ct! (eneral Clauses 'ct.

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*efo *efore re proc procee eedi ding ng any any furthe furtherr! we need need to discus discusss Sectio Sectionn-++ ++* * of Inform Informat atio ion n ec echn hnol olog ogy y

'ct which reads as under,

++*. Punishment for dishonestly recei#ing stolen computer resource or communica communication tion de#ice. de#ice. Whoe#er Whoe#er dishones dishonestly tly recei#ed recei#ed or retains retains any stolen computer resource or communication de#ice knowing or ha#ing reas reason on to belie lie#e the the sam same to be sto stolen len compu ompute terr res resourc ourcee or communication de#ice! shall be punished with imprisonment of either description for a term which may etend to three years or with fine which may etend to rupees one lakh or with both/.

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Info Inform rmat atio ion n ec echn hnol olog ogy y 'ct 'ct has has not not defi define ned d as to what what is sto stole len n comp comput uter er reso resour urce ce or

communication de#ice/. *eing a central 'ct! the (eneral Clauses 'ct has to be seen for definition and it terms of Section-) Section-)0)+! 0)+! computer computer resource resource or communica communication tion de#ice/ has to be treated as nothing nothing but a mo#able mo#able property property.. Conse2ue Conse2uently ntly!! stolen stolen computer computer resource resource or communica communication tion de#ice/ mentioned in Section-++* is but a stolen property/. his term has not been defined by Information echnology 'ct. We ha#e to take help of CrPC. Section-4 and 3 of CrPC read as under,

4. rial of offences under the Indian Penal Code and other laws.- 0 1 'll offences under the Indian Penal Code 043 of 1+5 shall be in#estigated! in2uired into! tried! and otherwise dealt with according to the pro#isions hereinafter contained.

LatestLaws.in 0& 'll offences under any other law shall be in#estigated! in2uired into! tried! and otherwise dealt with according to the same pro#isions! but sub"e sub"ect ct to any any enactm enactment ent for the time being being in force force regula regulatin ting g the manner manner of place place of in#est in#estiga igatin ting! g! in2uiri in2uiring ng into! into! trying trying or otherw otherwise ise dealing with such offences/. offences/.

3. Sa#ing.- 6othing contained in this Code shall! in the absence of a specific pro#ision to the contrary! affect any special or local law for the time being in force! or any special "urisdiction or power conferred! or any special form of procedure prescribed! by any other law for the time being in force/.

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In ter terms ms of of Sect Sectio ionn-4 4 7 3 of of CrPC CrPC!! we kno know w that that the the mat matte terr rela relate ted d to oth other er law lawss has has to be be

dealt with in terms of CrPC unless such law pro#ides to the contrary. he Information echnology 'ct though pro#ides for some guidance but the same is for #ery limited purposes. 's such! we ha#e to look into the pro#isions of CrPC for se#eral other purposes e#en in respect of I 'ct. he term stolen property/ is not defined in CrPC but Section-&0y of CrPC reads as under,

&0y words and epressions used herein and not defined but defined in the Indian Indian Penal Penal Code Code 043 of 1+5 1+5 ha#e ha#e the meanin meanings gs respec respecti# ti#ely ely assigned to them in that Code/.

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We ha#e ha#e there therefo fore re to look look into into IPC! IPC! 1+5 1+5 to asce ascert rtai ain n the mean meanin ing g of stole stolen n prop proper erty ty..

Section-415 IPC reads as under,

415. 415. Stolen Stolen prope property rty..- Proper Property ty!! the posses possessio sion n where whereof of has has been been transferred by theft! or by etortion! or by robbery! and property which has has been been crimin criminall ally y misapp misapprop ropria riated ted or in respec respectt of which which crimin criminal al breach of trust has been committed! is designated as stolen property/! whether the transfer has been made! or the misappropriation or breach of trust has been committed! within or without India. *ut! if such property subse2uently subse2uently comes into the possession of a person legally entitled to the possession thereof! it then ceases to be stolen property/.

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It is cle cleaar that that if the the the the pro property erty ha has come come in in the po posse ssessio sion of any anyone one in any any of the the

aforesaid manner! manner! the same shall be treated as stolen property. property. IPC further punishes any person who dishonestly recei#es or retains any stolen property. It is pro#ided in Section-411 which reads as under,

411 411.. 9ishon 9ishonest estly ly recei# recei#ing ing stolen stolen proper property ty..- Whoe#e Whoe#err dishon dishonest estly ly recei#es or retains any stolen property! knowing or ha#ing reason to beli belie# e#ee the the same same to be stol stolen en prop proper erty ty!! shall hall be puni punish shed ed with with imprisonment of either description for a term which may etend to three years! or with fine! or with both/.

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he he afore aforesa said id is re2u re2uir ired ed to be com compa pare red d with with Secti Section on-+ -++* +* of Info Inform rmat atio ion n ec echn hnol olog ogy y 'ct. 'ct.

his pro#ision has been 2uoted earlier in this paper but f or ready reference it is again reproduced as under,

++*. Punishment for dishonestly recei#ing stolen computer resource or communica communication tion de#ice. de#ice. Whoe#er Whoe#er dishones dishonestly tly recei#ed recei#ed or retains retains any stolen computer resource or communication de#ice knowing or ha#ing reas reason on to belie lie#e the the sam same to be sto stolen len compu ompute terr res resourc ourcee or communication de#ice! shall be punished with imprisonment of either description for a term which may etend to three years or with fine which may etend to rupees one lakh or with both/.

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' bare bare look look at both both the pro#is pro#ision ionss goes goes to sho shows ws that that they they are are simil similarl arly y worde worded d and and the the only only

difference is in respect of fine! the IPC has not limited the 2uantum of fine but the I 'ct has limited it to ;s. 1 lakh. ' normal normal person after going through the epression fine/ employed in both the pro#isions will say that a sum of ;s.1 lakh is on higher side and therefore! Section-++* pro#ides for more se#ere punishment as compared to Section-411 IPC. ' close scrutiny howe#er goes to show otherwise. Section-411 Section-411 IPC has only said that offender shall be liable to be punished with fine. It howe#er nowhere says as to what 2uantum. It is Section-+) IPC which throws some light on the issue and the same reads as under,

+). 'mount of fine.- Where no sum is epressed to which a fine may etend! the amount of fine to which the offender is liable is unlimited! but shall not be ecessi#e/.

LatestLaws.in

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Section-++* of I 'ct where 2uantum has been limited to a sum of ;s.1 lakh. 's such! it has to be accepted that harsher punishment is pro#ided in Section-411 Section-411 IPC as compared to Section-++* of the I 'ct.

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Sectio Section-4 n-41 11 IPC appl applies ies to all all kind kind of prope property rty and and theref therefore ore it shou should ld be trea treated ted as as a genera generall

pro#ision. Whereas Section-++* of I 'ct applies to a #ery particular kind of property and is therefore a special pro#ision in respect of punishment regarding possession of such specific stolen property.

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=ne of of the prop propert erties ies is is the stol stolen en commu communic nicati ation on de#ic de#icee posse possess ssion ion whe whereo reoff is punish punishab able le

under Section-++*. his term communication de#ice/ is defined in Section-&010ha of I 'ct as under,

&010ha &010ha communica communication tion de#ice de#ice means means cell phones! phones! personal personal digital digital assi assist stan ance ce or comb combin inat atio ion n of both both or any any othe otherr de#i de#ice ce used used to communicate! send or transmit any tet! #ideo! audio or image/.

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6ow 6ow! a mobi mobile le phon phonee 0as 0as call called ed popu popula larl rly y will will cert certai ainl nly y fall fall withi within n the the ambi ambitt of cell cell

phones/ or other de#ice used to communicate/ and will therefore be a communication de#ice. Conse2 Conse2uen uently tly!! if a person person dishon dishones estly tly recei# recei#es es or retain retainss any stolen stolen mobil mobilee phone phone with with the knowledge$reasonable belief about such mobile phone being a stolen one! he shall be punishable under Section-++* of I 'ct.

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Simi Simila larly rly!! such such perso person n woul would d also also be liable liable for punis punishm hmen entt unde underr Sect Sectio ionn-41 411 1 IPC. IPC. he he

2uestion then arises as to whether such person would be liable under both the pro#isions. =ne may argue that as seen abo#e! Section-411 IPC is general pro#ision applying to all kind of stolen property whereas Section-++* of I 'ct is a special pro#ision applying only to a particular kind of stolen property and therefore! the same will o#erride the Section-411 in respect of a mobile phone. =ne may further gets support for this assumption from Section-1 of I 'ct which reads as under,

1. 'ct to ha#e o#erriding effect. he pro#isions of this 'ct shall ha#e effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Pro#ided that nothing contained in

LatestLaws.in this 'ct shall restrict any person from eercising any right conferred under the Copyright 'ct! 1:38 014 of 1:38 or the Patents 'ct! 1:85 0): of 1:85/.

Section-3 of IPC also supports the abo#e and reads as under,

3. Certain laws not to be affected by this 'ct.- 6othing in this 'ct shall affect the pro#isions of any 'ct for punishing mutiny and desertion of officers! soldiers! sailors or airmen in the ser#ice of the (o#ernment of India or the pro#isions of any special or local law/.

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here can hardly be any doubt that the I 'ct is special enactment in respect of

technological de#ices and therefore will ha#e to be treated as special law. In terms of Section-3 of IPC! the pro#isions of IPC cannot affect the pro#isions of any special law. law.

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;eadin ;eading g Sectio Section-3 n-3 IPC IPC and Secti Sectionon-1 1 I 'ct simul simultan taneou eously sly!! we ha#e ha#e to accep acceptt that offen offence ce

in respect of possession$retention of stolen mobile has been specifically car#ed out from the general offence punishable under Section-411 IPC and therefore! such offence shall only be punishable under Section-++* of I 'ct.

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=ne =ne may poin pointt out the Sect Sectio ionn-88 88 and and may argu arguee that that punis punishm hmen entt pro#i pro#ide ded d under under I 'ct 'ct

does not impact other punishment in any other law. Section-88 reads as under,

88. Compensation! penalties or confiscation not to interfere with other punishment. 6o compensation awarded! penalty imposed or confiscation made made unde underr this this 'ct 'ct shal shalll pre# pre#en entt the the awar award d of comp compen ensa sati tion on or imposition of any other penalty or punishment under any other law for the time being in force/.

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he afores aforesaid aid pro# pro#isi ision on in in Sectio Section-8 n-88 8 is the the result result of of an amen amendme dment. nt. he unam unamend ended ed 88 88 was was

not ha#ing the word penalty/ while talking about other law. It was as under,

88. Penalties or confiscation not to interfere with other punishments. 6o penalty imposed or confiscation made under this 'ct shall pre#ent the

LatestLaws.in imposition of any other punishment to which the person affected thereby is liable under any other law for the time being in force/.

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What What become becomess immedi immediate ately ly clear clear is that that the the Sectio Section-8 n-88 8 has used used thre threee terms terms comp compen ensat sation ion//

penalty/ confiscation/ in respect of I 'ct. It does not talk about the punishment under I 'ct. Compensation and confiscation ha#e nothing to do with the punishment. It appears that penalty/ also is not a punishment under I 'ct. he >egislati#e intention is #ery clear to indicate that there is a differ differenc encee betwe between en penal penalty/ ty/ and punis punishme hment/ nt/.. In respec respectt of other other law! law! Sectio Section-8 n-88 8 has specifically used both the terms i.e. penalty/ and punishment/. his clarifies that in the opinion of the >egislature! both the terms i.e. penalty/ and punishment/ are different. It also becomes clear from Section-4+ which pro#ides for a separate statutory regime for ad"udication on compensation and penalty. penalty. 's such! Section-88 cannot be of any help while dealing with Section-++*.

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In some some of the the punis punishi hing ng sect sectio ions ns the the term term pena penalt lty/ y/ has has also also been been used. used. =ne =ne may tend tend to

argue that there is therefore no difference between penalty and punishment. he proposition may sound attracti#e but does not stand scrutiny. Some punishing sections though ha#e used penalty/ the same has been used only in the marginal notes and not in the body of the sections. *ody of e#en those sections still shows the epression punish/. Penalty pro#isions clearly shows that in the concerned sections related to penalty! the term penalty/ has been used in the body also. =n an o#eral o#eralll analys analysis! is! it become becomess clear clear that that when when the Sectio Section-8 n-88 8 talks talks about about penal penalty/ ty/ it basic basicall ally y indicates towards section-4+ which pro#ides for ad"udicatory process regarding penalty and nothing else. ?or the purpose of Section-88! penalty and punishment are clearly two different terms.

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It is at this this stag stagee that that we ha#e ha#e to go go throug through h Sectio Section-& n-&+ + of (ener (eneral al Claus Clauses es 'ct! 'ct! 1:8 1:8 which which

talks about offences under two enactments and reads as under,

&+. Pro#isions as to offences punishable under two or more enactments Where an act or omission constitutes an offence under two or more enact enactme ments nts!! then then the offen offender der shall shall be liable liable to be prose prosecut cuted ed and punished under either or any of those enactments! but shall not be liable to be punished twice for the same offence/.

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It is clea clearr that that Sectio Section-& n-&+ + gi#es gi#es a choi choice ce of of prosec prosecuti ution on and and punish punishme ment. nt. 's is is well well known! known!

one can make a choice only when there are atleast two things in eistence for being chosen. If only

LatestLaws.in one thing remains in eistence! there cannot be any 2uestion for choice and as such! Section-&+ will not apply at all.

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her heree are certa certain in enact enactme ment ntss whic which h thou though gh creat creates es spec specifi ificc offenc offences es but pro#i pro#ide de that that the the

pro#isions thereof shall not be in derogation of other laws! or shall be in addition to other laws! or shall not affect punishment in other laws! or they are without pre"udice to other laws etc. It is for those kind of enactments that the Section-&+ was meant to be applicable. =ne of such enactments

Institute ute of Charte Chartere red d may may be seen seen in the the "udg "udgme ment nt of @on% @on%bl blee Supr Suprem emee Cour Courtt in the Instit Accountants Accountants of India s !imal !imal Kumar Surana  dated 51.1&.&515 where it dealt with an argument that a person cannot be prosecuted both for offences under Chartered 'ccountants 'ct! 1:4: and IPC! 1+5 and re"ected the contention. It is howe#er significant to note that it has hea#ily relied upon the epression  "ithout #re$udice to any other #roceedings "hich may be taken against

him/ appearing in the Chartered 'ccountants 'ct! 1:4: for coming to that conclusion. he Court had also clarified that the person will not be punished twice in terms of Section-&+ of general clauses 'ct. Same is not the case for offences under Information echnology 'ct. 's such! this  "udgment cannot cannot be of any help in respect of the issue issue at hand.

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We need need to note note some some more more pro# pro#isi isions ons of of the I I 'ct. 'ct. Secti Sectionon-88* 88* and 8 read read as as under under,,

88* 88*.. =ffe =ffenc nces es with with thre threee year yearss impr impris ison onme ment nt to be bail bailab able le..6otwithstanding anything contained in the Code of Criminal Procedure! 1:8) 0& of 1:84! the offence punishable with imprisonment of three years and abo#e shall be cogniAable and the offence punishable with imprisonment of three years shall be bailable/.

8. Power to in#estigate offences.B6otwithstanding anything contained in the Code of Criminal Procedure! 1:8) 0& of 1:84! a police officer not below the rank of Inspector shall in#estigate any offence under this 'ct/.

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Inte Intere rest stin ingl gly y! in terms terms of Secti Section on-88 -88* * the the offe offenc ncee puni punish shab able le under under Sect Sectio ion-+ n-++* +* clearl clearly y

becomes a bailable offence. ?urther! Section-8 restricts the in#estigation and clarifies that officer below the rank of Inspector shall not in#estigate any offence.

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stolen mobile or stolen computer can infringe the fundamental right of liberty granted by the

LatestLaws.in Constitution by in#oking Section-411 IPC. It is clear that by in#oking Section-411 IPC what the police is doing is to retain the person so accused of the offence in the "ail as this offence is nonbailable. Police agency cannot be treated as empowered to make an acti#ity non-bailable whereas the Parliament by enacting one special legislation has pro#ided it as bailable. >iberty of any indi#idual is paramount.

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Seen Seen in the prop proper er conte contet t of indi# indi#idu idual al libert liberty y and o#er o#errid riding ing effe effect ct of I 'ct! 'ct! it is clear clear that that

whene#er the police agency wants to allege any person with the fact that he had recei#ed or retained with knowledge any stolen mobile or stolen computer! it has necessarily to in#oke Section-++* of I 'ct and not Section-411 IPC and thereupon! the police is also liable to release such person on bail under Section-4)+ CrPC being a bailable offence unless of course! some other non-bailable offence is a#ailable in the case against such person.

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