Source: Madras High Court 

Why in News? 

Recently, the Madras High Court in the matter of Jebaraj @ Jeyaraj v. The State of Tamil Nadu  has held that in non-cognizable and bailable offences it is required to take the prior permission of the magistrate to file a complaint. 

What was the Background of the Jebaraj @ Jeyaraj v The State of Tamil Nadu  Case? 

• In October 2024, a local vulcanizing shop owner experienced the theft of three lorry tyres valued at approximately Rs. 3,000.  
• After reviewing CCTV footage from the shop, the owner identified Jebaraj, the petitioner, as the person who had taken the tyres. 
• The shop owner subsequently filed a police complaint, which led to the registration of a First Information Report (FIR) against the petitioner under Section 303(2) of the Bharatiya Nyaya Sanhita 2023, (BNS).  
• The specifics of the case revolved around the value of the stolen property.  
• With the tyres being worth Rs. 3,000 - which is less than Rs. 5,000 - the theft technically qualified as a minor offense under the new legal framework.  
• The petitioner sought an application for anticipatory bail, and quashing of FIR before the Madras High Court 

What were the Court’s Observations? 

• The Madras High Court made the following observations: 
  • The offense involved theft of old tyres worth Rs. 3,000, which falls under Section 303(2) of BNS. 
  • The court noted that for theft of property valued less than Rs. 5,000 and for a first-time offender, the punishment is community service. 
  • The court observed that for such a low-value theft, the offense is: 
    • Non-cognizable  
    • Bailable 
    • Requires prior Magistrate's order for FIR registration under Section 174 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). 
  • The court found that the FIR was illegally registered without obtaining appropriate orders from the Magistrate with jurisdiction to try such a case. 
  • While technically the anticipatory bail petition was not maintainable (since the offense is bailable), the court chose to exercise its powers under Section 482 of the Code of Criminal Procedure, 1973 (CrPC). 
• The Madras High Court quashed the FIR against the petitioner effectively nullifying the criminal proceeding due to procedural irregularities in its registration. 

What is Section 303 of BNS?

• This section is covered under Chapter XVII which states the provisions for offences against the property. 
• Section 303 of BNS clearly states the provisions for Theft as: 
  • Subsection (1) states that 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. 
  • The subsection is accompanied with the following explanations as: 
    • 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 earth.  
    • A moving effected by the same act which affects the severance may be a theft. 
    • 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.  
    • 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.  
    • The consent mentioned in this section 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. 
  • It is further explained with several illustrations some of them are: 
    • Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z’s possession. It could not therefore be taken out of Z’s possession, and A has not committed theft, though he may have committed criminal breach of trust. 
    • A delivers his watch to Z, a jeweler, to be regulated. Z carries it to his shop. A, not owing to the jeweler any debt for which the jeweler might lawfully detain the watch as a security, enters the shop openly, takes his watch by force out of Z’s hand, and carries it away. Here A, though he may have committed criminal trespass and assault, has not committed theft, in as much as what he did was not done dishonestly. 
    • A asks charity from Z’s wife. She gives A money, food and clothes, which A knows to belong to Z, her husband. Here it is probable that A may conceive that Z’s wife is authorized to give away alms. If this was A’s impression, A has not committed theft.  
    • A is the paramour of Z’s wife. She gives a valuable property, which A knows to belong to her husband Z, and to be such property as she has no authority from Z to give. If A takes the property dishonestly, he commits theft.  
    • A, in good faith, believing property belonging to Z to be A’s own property, takes that property out of Z’s possession. Here, as A does not take dishonestly, he does not commit theft. 
  • Subsection (2) states that whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both and in case of second or subsequent conviction of any person under this section, he shall be punished with rigorous imprisonment for a term which shall not be less than one year but which may extend to five years and with fine. 
  • This subsection further has a proviso clause which states that: 
    • In cases of theft where the value of the stolen property is less than five thousand rupees, and a person is convicted for the first time, shall upon return of the value of property or restoration of the stolen property, shall be punished with community service.