Syed Shajahan, Kadapa Dt., vs The State Of Ap. Rep Pp And 7 Otrs.,
2021 Latest Caselaw 4521 AP

     THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

          CRIMINAL REVISION CASE No.1003 of 2015

ORDER:

This criminal revision case is filed under Section 397 &

401 of Code of Criminal Procedure, 1973 (for short ―Cr.P.C‖)

assailing the judgment dated.16.09.2014 in Criminal Appeal

No.19 of 2014 on the file of VI Additional Sessions Judge, Gooty,

allowing the appeal in part, confirming the conviction recorded

against petitioner/A-4 in C.C.No.134 of 2012 on the file of

Special Judicial Magistrate of First Class for Railways, Guntakal

for the offence under Section 3(a) of the Railway Property

(Unlawful Possession) Act, 1966 (for short "RPUP Act") and

altering the sentence imposed against him to undergo simple

imprisonment for one year and to pay fine of Rs.5,000/- in

default to undergo SI for 3 months to that of fine of Rs.5,000/-

only.

2. The case of the prosecution is that on 19.02.2012 at about

16:30 hours, the complainant along with his staff had

apprehended A-1 near station board, Gangayapalli Railway

Station when he was carrying one sickle. On enquiry A-1 stated

that he is doing wood business and purchased some babool

trees at Gangayappli railway station yard behind the station

building from A.2 and A.3 for Rs.5,500/- and paid Rs.3,400/- as

advance to them and he already had cut the said babool trees

about 11 tones and taken to his home by one tractor bearing

No.AP04 W 7883 by engaging labourers, who are A.6 to A.10 for

cutting and loading. Further, A.1 stated that out of 11 tones of

babool trees, he sold out 10 tones to some unknown persons

and one ton of babool tree pieces are in front of his house and

A.1 had voluntarily produced cash of Rs.13,600/- towards sale

proceeds of 8 tones and remaining 2 tones amount of

Rs.3,400/- was already paid to A.2 and A.3 and later A.1

identified A.2 & A.3 at Kamalapuram Adda Road and they

accepted their version and they paid Rs.700/- each voluntarily

and later on the same day all of them proceeded to APSRTC Bus

stand, Kadapa, where A.2 and A.3 identified A.4 who in turn

admitted that he received cash of Rs.2,000/- from A.2 & A.3

being sale proceeds of babool trees and produced the said cash

and on 25.03.2012 complainant along with staff, noticed crime

tractor bearing no. AP 04 W 7882 which is involved in this crime

and later the complainant seized the said tractor. After

completion of investigation, charge sheet is filed.

3. On appearance, charges under Section 3(a) of RPUP Act

was framed, read over and explained to the accused, to which

the accused pleaded not guilty and claimed to be tried.

4. To substantiate its case, prosecution examined P.Ws.1 to

7 and got marked Exs.P-1 to P-56 and M.Os.1 and 2. After

closure of prosecution evidence, accused were examined under

Section 313 Cr.P.C. with regard to incriminating material

available against them, in the evidence of the prosecution

witnesses, to which they denied. No oral evidence or

documentary was adduced on behalf of the accused.

5. Relying upon the evidence let in by prosecution, the trial

Court convicted the accused for the charge referred to above.

Challenging the same, the petitioner/A-4 preferred Crl.A.No.19

of 2014 on the file of VI Additional Sessions Judge, Gooty and

the same was partly allowed on 16.09.2014 confirming the

conviction and altering the sentence awarded by the trial Court,

as indicated above. Challenging the same, present appeal has

been filed.

6. Heard Sri G.Venkata Reddy, learned counsel for petitioner

and the learned Assistant Public Prosecutor for respondent-

State.

7. Learned counsel for the petitioner submits that taking

cognizance of offence under Section 3(a) of RPUP Act and

framing the charge under said offence cannot be sustained, as

the Amendment Act, 2012 has come to force from 15.08.2012

whereas the alleged offence took place on 19.02.2012. He

submits that property referred in the complaint is not a Railway

Property and there is no proof of evidence produced before the

Court to establish that the money seized is sale proceeds of

Railway Property as defined in clause 2(d) of RPUP Act, as there

were no marks of the Railways on any of the seized articles. He

submits that the Courts below committed irregularity in

appreciating the evidence brought on record and the conviction

and sentence is based only on extra-judicial confessions even

though same were not supported by any independent witnesses.

8. Learned counsel for the petitioner submits that the Courts

below erroneously convicted and sentenced the petitioner merely

basing on confessional statements even though same were

recorded contrary to Clause 14 and 14(1) of the procedure

required to be followed for conducting enquiries into offences

under the RPUP Act. He submits that search conducted by the

investigating officer is contrary to section 10 of RPUP Act as an

Officer of the RPF cannot enter, search and effect seizure of any

property without a search warrant from a Magistrate. He further

submits that much weight cannot be given to the evidence of

P.W.7, investigating officer, when the same is not supported by

the other independent witnesses.

9. Per contra, learned Assistant Public Prosecutor submits

that the prosecution successfully established the guilt of the

accused beyond all reasonable doubt by examining P.W.s.1 to 7

and exhibiting Exs.P-1 toP-56 and M.O.s.1 and 2 and there is

no illegality or irregularity in the conviction and sentence

imposed against the petitioner, which warrants interference of

this Court.

10. Now the point that fell for consideration is -

Whether the petitioner/A-4 has made out any ground to interfere with the conviction and sentence imposed against him?

11. The jurisdiction of the Court under Section 397 can be

exercised so as to examine the correctness, legality or

proprietary of an order passed by the trial court or the inferior

court, as the case may be. Though the section does not

specifically use the expression ‗prevent abuse of process of any

court or otherwise to secure the ends of justice', the jurisdiction

under Section 397 is a very limited one. The legality, proprietary

or correctness of an order passed by a court is the very

foundation of exercise of jurisdiction under Section 397 but

ultimately it also requires justice to be done. The jurisdiction

could be exercised where there is palpable error, non-

compliance with the provisions of law, the decision is completely

erroneous or where the judicial discretion is exercised

arbitrarily.

12. Now it has to be seen whether there is any illegality or

irregularity committed by the Courts below in appreciating the

evidence on record. On careful scrutiny of evidence on record, it

is evident that P.Ws.3, 4 and 6 who are independent witnesses

did not support the case of prosecution and they were declared

as hostile. Now the evidence of P.Ws.1, 5 and 7, who are official

witnesses remains to be considered.

13. P.W.1 the then Sub-Inspector of Police, R.P.F, Kadapa

categorically deposed about the apprehension of accused and

seizure of babool tree pieces under the cover of mediators report.

He further deposed about registration of crime and remitting the

sale proceeds of Rs.17,000/- at Railway Booking Office, Kadapa.

In his cross examination, P.W.1 deposed that he prepared the

mahajarnama in English. He further stated that A-1 to A-3 and

the mediators i.e. P.Ws.2 and 3 do not know English. He also

stated that he does not know Telugu both speaking and writing.

14. The evidence of P.W.5, who is as Section Engineer, Kadapa

is with regard to observing some stems after cutting babool trees

on the back side of Gangayapalli Railway Station and thereafter

on the request of police, he noticed branches of thorny trees and

found that the stems and the branches are in similar manner

and he attested the scene observation report. In his cross

examination, he deposed that now and then they remove thorny

bushes on either side of the track for free movement trains and

they also remove throny bushes in all station premises to avoid

inconvenience to passengers by engaging labours.

15. P.W.7, working as RPF constable, Kadapa deposed about

the investigation conducted by Sub Inspector of Police, arrest of

accused, recording the confessional statement of accused and

seizure of material objects. In his cross examination, P.W.7

deposed that they did not call the local inhabitants of the house

of A.1 to act as mediators and one mediator is from Kadapa and

another mediator from Gangayapalli. He deposed that distance

between Gangayapallli and Kadapa about 29 KMs and they did

not issue any written notices to the persons who acted as

mediators they did not prepare any scene observation report at

the scene of offence. He further deposed that investigating

officer did not enquire in his presence whether the trees cut off

belongs to Railway and he does not know whether A.4 permitted

A.1 by rating to cutoff the firewood trees.

16. It is appropriate to refer to Section 3(a) of RPUP Act, which

reads thus:

―3. Penalty for theft, dishonest misappropriation or unlawful possession of railway property-- Whoever commits theft, or dishonestly misappropriates or is found, or is proved] to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable--

(a) for the first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees;

(b) for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees.‖

17. While appreciating the essential requirements for proving

the offence under Section 3 of RPUP Act, the Hon'ble Supreme

Court in State Of Maharashtra Vs. Vishwanath Tukuram

Umale & Ors1, held thus:

(i) the property in question should be railway property,

(ii) it should reasonably be suspected of having been stolen or unlawfully obtained, and

(iii) it should be found or proved that the accused was or had been in possession of that property.

18. The Hon'ble Supreme Court in a judgment in between

Balkishan A. Devidayal Vs. State of Maharastra2, held that a

confession made by an accused before the R.P.F. Officer in the

1979 CrlLJ 1193 SC

AIR 1982 SC 379

presence of mediators is inadmissible in evidence as the R.P.F

personnel are not police officers within the meaning of Section

25 of the Indian Evidence Act. Hence, the confession made in

front of the R.P.F Officer in the presence of the witnesses is held

to be inadmissible.

19. The first thing to be determined in this case is that

whether the seized materials are railway property or not. Section

2(d) of the RPUP Act defines ―Railway property‖ includes any

goods, money or valuable security or animal, belonging to, or in

the charge or possession of a railway administration. For

determining the same, the only evidence of P.Ws.1, 5 and 7 is

available in record. But none of them have produced any

registers maintained by the Railway Department to show that

the subject property belongs to the Railway Property. However

they have stated that the subject property of babool trees which

were in the premises of Railway department were cut down.

Further P.W.5 stated that now and then they used to remove

thorny bushes on either side of the track and also in the station

premises to avoid inconvenience to passengers by engaging

labours. P.W.5 further stated in his cross examination that

thorny trees are grown on their own and neither they are

planted nor raised by anybody and they did not maintain any

stock registers pertains to thorny trees and generally they

conduct clean and green programme to remove thorny trees as

per the instruction of the higher officials. So on careful scrutiny

of the evidence of P.Ws.1, 5 and 7, it can be safely held that they

do not maintain any record with regard to thorny trees. It is also

clear from the evidence of P.Ws.1 and 5 that both of them failed

to depose about the presence of other when they conducted

scene observation report, which gives rise to a doubt about

preparation of scene observation report and both the Courts

below failed to observe the said omission. The Courts below

failed to notice the glaring omissions and contradictions in the

evidence of P.Ws.1 and 5.

20. Coming to the evidence of P.W.7, he has stated in his

cross examination that they did not call the local inhabitants of

the house of A.1 to act as mediators. One mediator is from

Kadapa and another mediator is from Gangayapalli, the distance

between Gangayapallli and Kadapa about 29 KMs, they did not

issue any written notices to the persons who acted as mediators,

they did not prepare any scene observation report at the scene

of offence and the investigating officer did not enquire about

whether the cut off trees belong to Railway in his presence and

he does not know whether A.4 permitted A.1 by rating to cutoff

the firewood trees. Nothing incriminating is there in the evidence

of P.W.7 to establish the guilt of the accused.

21. In the light of glaring inconsistencies and contradictions it

is not safe to place reliance on the evidence of P.Ws.1, 5 and 7 to

hold that the prosecution bring home the guilt of the accused

beyond all reasonable doubt. Further, in view of the inconsistent

evidence, Ex.P.21 certificate issued by P.W.5 to say that babool

tree pieces seized in the house of A.1 are similar to that of the

babool tree pieces found at the scene of offence cannot be

believed.

22. Secondly, it has to be seen whether the petitioner was

found in possession of the railway property. For determining the

same, again the only evidence of P.Ws.1, 5 and 7 is available.

Admittedly the property of babool trees are not seized either

from the possession of petitioner or from the premises belong to

the petitioner, but the case of prosecution is that A.2 & A.3

made confessional statements before P.W.1 in the presence of

P.Ws.2 and 3 that they sold the subject property of babool trees

with the permission of petitioner for Rs.5,500/- to A.1 and A.1

paid Rs.3,400/- from which the A.2 & A.3 kept Rs.700/- each

and paid Rs.2,000/- to petitioner. Further P.W.1 seized

Rs.700/- each from A.2 & A.3 and Rs.2,000/- from petitioner

under the cover of Exs.P2 and Ex.P3 Panchanama and the

prosecution claimed that the said seized amounts derived from

the sale proceeds of the babool trees. However, except the

confession of A.2 and A.3 there is no corroborative evidence to

substantiate the same as the independent witnesses i.e. P.Ws.2

and 3 did not support the case of the prosecution and they were

declared as hostile. Further, it is the case of petitioner that their

statements were obtained by coercion while they were in the

custody of RPF Officers and same is also observed by the trial

Court in its Judgment, but it has failed to give any weight to the

same. Since the independent witnesses did not support the

case of the prosecution and it is the case of the petitioner that

confessional statements were obtained by coercion when they

were in the custody of RPF officers, the same cannot be basis to

hold that the amount of Rs.2,000/- which was seized from the

petitioner is derived out of sale proceeds of babool trees, which

is the railway property and it can be reasonably suspected of

having been stolen or unlawfully obtained.

23. On careful scrutiny of evidence on record, it is clear that

P.Ws.1, 5 and 7 are the Railway Protection Force officials and

not independent witnesses. Moreover, P.W.1 has not followed

procedure contemplated under the RPUP Act, while recording

the confessional statements. Hence, this Court is of the view

that there is force in the contention of learned counsel for

petitioner.

24. In this regard it would be advantageous to go through the

provisions regarding the enquiry into offences under RPUP Act,

whereunder, procedure contemplated under Clauses 14 and

14(1) has to be followed for conducting enquiries into offences

under the Railway Property (Unlawful Possession) Act, which

reads thus:

―14. The Enquiry Officer shall then examine orally (interrogate) the person so summoned, concerning the facts and circumstances of the case and record any statement made to him by such person, which will form a part of the case record.

14(i) If the accused wants to make a confessional statement, the same should be recorded in the presence of two respectable and independent witnesses who should also be required to affix their signatures thereon. He should also be produced before a Magistrate of competent jurisdiction and the confession shall be recorded by such Magistrate as

required by the provisions of the Code of Criminal Procedure, 1973 (Section 164 and 281).‖

25. A bare reading of above referred Clauses, it is clear that

the Enquiry Officer is required to interrogate the accused with

the facts and circumstances of the case and then record the

statement made by the accused. Similarly, if the accused wants

to make a confessional statement, it should be recorded in the

presence of two respectable and independent witnesses, who

should also be required to affix their signatures thereon. The

accused should be produced before the Magistrate of competent

jurisdiction and the confession should be recorded by such

Magistrate, as required by the provisions of Sections 164 and

281 of the Code of Criminal Procedure.

26. In the instant case, even assuming that Railway Protection

Force authority has recorded the confessional statement of the

accused, the same not been recorded as contemplated under the

Clauses 14 and 14(1) of RPUP Act. Both the Courts below failed

to look into the provisions in its proper perspective and thereby

rendered the conviction and sentence against the petitioner

erroneously.

27. Learned counsel for petitioner has placed reliance upon the

judgment of Aurangabad High Court in Criminal Appeal No.362

of 2000 (The State of Maharashtra through Chief Security

Commissioner, Secundarabad v. Balaji S/o Manikrao Jadhav

and others) and connected matters, decided on 11-01-2016 to

substantiate his contention. Wherein the confessional statement

of accused was disbelieved as the Clauses 14 and 14(1) were not

followed by the enquiry authority.

28. As far as search and seizure of property is concerned,

P.W.1 conducted the search and seized the property contrary to

Section 10 of RPUP Act. It is apposite to refer to Section 10 of

RPUP Act, which reads thus:

Section 10: Issue of search warrant:

(1) If an officer of the Force has reason to believe that any place is used for the deposit or sale of railway property which has been stolen or unlawfully obtained, he shall make an application to the magistrate, having jurisdiction over the area in which that place is situate, for issue of a search warrant.

(2) The magistrate to whom an application is made under sub-section (1) may, after such inquiry as he thinks necessary, by his warrant authorize any officer of the Force--

(a) to enter with such assistance as may be required, such place;

(b) to search the same in the manner specified in the warrant;

(c) to take possession of any railway property therein found which he reasonably suspects to be stolen or unlawfully obtained; and

(d) to convey such railway property before a Magistrate, or to guard the same on the spot until the offender is taken before a magistrate, or otherwise to dispose thereof in some place of safety.

29. From the above provision, it is clear that the RPF officer,

who wants to conduct search, may have to obtain search

warrant. In the present case also P.W.1 without obtaining any

search warrant, conducted the search and seized the property

and it is not even the case of the prosecution that they could not

obtain the search warrant. Further apart from the bare

testimony of PW-1, Pw.7 absolutely there is no iota of evidence

on record and the panchas (PW-2, PW-3, PW-4 And PW-6) who

were examined on this aspect have not supported the case of the

prosecution and they were declared hostile and even on this

count also the prosecution fails to follow the procedure

contemplated under the Act and failed to prove their case

beyond reasonable doubt.

30. In the instance case, it is not disputed that the Railway

Protection Force officer was entitled to make an enquiry under

the RPUP Act and the officer under the said Act is not a Police

officer for the purposes of Section 25 of the Indian Evidence Act

and the confessional statement recorded by him is inadmissible

in evidence. Further, confessional statements are not supported

by any independent witnesses.

31. In the above facts and circumstances of the case, this

Court is of the view that, the Courts below failed to appreciate

the evidence on record in right perspective and erroneously

convicted the petitioner/A.4. Hence, the conviction and sentence

passed against the petitioner/A-4 is liable to be set aside.

32. In the result, the criminal revision case is allowed and

conviction and sentence passed in Crl.A.No.19 of 2014 dated

16.09.2014 on the file of VI Additional Sessions Judge, Gooty

confirming the conviction and modifying the sentence awarded

in C.C.No.134 of 2012 dated 13.02.2014 on the file of Special

Judicial Magistrate of First Class for Railways, Guntakal is set

aside. Fine amount paid the petitioner/A-4 shall be returned to

him after expiry of appeal time.

As a sequel, all the pending miscellaneous petitions, shall

stand closed.

___________________________ LALITHA KANNEGANTI, J

5th November, 2021

PVD

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

Allowed

CRIMINAL REVISION CASE No.1003 of 2015

5th November, 2021

PVD