Bombay High Court
The State Of Maharashtra vs Nizamuddin Kutubuddin Ansari on 20 August, 2015
Bench: A.M. Thipsay
15.APEALNo.3951998(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO.395 OF 1998
The State of Maharashtra,
(At the instance of Railway
Protection Force, Railway
Station, Nasik Road) ... Appellant
V/s.
Nizamuddin Kutubuddin Ansari
Age.48, Occupation Business
R/o.Mumtaz Park, Flat No.5,
Nasik ... Respondent
.....
Mrs.M.R.Tidke, APP for the Appellant.
Ms.Vrishali Raje i/b. Mr.P.N.Joshi, Advocate for the Respondent.
....
CORAM : ABHAY M. THIPSAY J.
DATED : 20TH AUGUST 2015
ORAL JUDGMENT :
1. The respondent, along with four others,was prosecuted
on the allegation of having committed an offence punishable
under section 3(a) of the Railway Property (Unlawful Possession)
Act, 1966 (hereinafter referred to as "the RPUP Act") on the basis
of a complaint lodged by one B.S.Kardan - Sub-Inspector in the
Railway Protection Force. The other accused pleaded guilty to the
charge that was framed after recording evidence and were
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convicted and sentenced on the basis of their plea of guilty. The
present respondent, who was the accused No.2 in the said case,
pleaded not guilty, and, as such, was tried by the Judicial
Magistrate First Class (Railways), Manmad. The Magistrate, after
holding a trial, found him guilty and sentenced him to suffer
Simple Imprisonment till rising of the Court and to pay a fine of
Rs.5,000/-, in default to suffer Rigorous Imprisonment for one
year.
2.
The respondent appealed to the Court of Sessions from
the Judgment and order of his conviction and sentence imposed
upon him. The learned Additional Sessions Judge, Nashik, who
heard the appeal, set aside the Judgment and Order delivered by
the Magistrate, and acquitted the respondent.
3. Being aggrieved by the said order of acquittal, passed
by the Additional Sessions Judge, Nashik in appeal, not the
complainant, but the State of Maharashtra has filed the present
appeal challenging the order of acquittal and praying that the
respondent be convicted.
4. The maintainability of this appeal was doubted by
reason of it having been filed by the State of Maharashtra instead
of the Inspector of the Railway Protection Force, or the Central
Government, and, therefore, the Additional Public Prosecutor was
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asked to satisfy this Court about it. The Additional Public
Prosecutor has not been able to satisfy me that the present appeal,
filed by the 'State of Maharashtra' against the acquittal, is
maintainable.
5. There are two aspects that lead to the doubt about the
maintainability of this appeal. The case against the respondent
arose on the basis of a complaint filed by a Sub-Inspector of the
Railway Protection Force. The Railway Protection Force is
empowered to investigate/inquire into the offences punishable
under the RPUP Act. Sub-Section (2) of Section 378 of the Code
of Criminal Procedure, which deals with 'appeal in case of
acquittal', leaves no manner of doubt and when an order of
acquittal is passed in a case in which the offence has been
investigated into by an Agency empowered to make investigation
into such offence under any Central Act other than the Code, then
it would be Central Government, who can direct the Public
Prosecutor to present an appeal against such an order of acquittal.
Thus, if the appeal is held to be filed on the basis of Sub-
Section(2) of Section 378 of the Code, then it would be the
Central Government who can direct filing of such an appeal. In
the instant case, admittedly, the appeal has been filed by the
Public Prosecutor not on the direction of the 'Central Government',
but on the direction of the 'State of Maharashtra'.
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6. The second factor creating a doubt about the
maintainability of the present appeal is the provisions of Sub-
Section (4) of Section 378 of the Code, which deals with an order
of acquittal in a case instituted upon a complaint. The present
case was instituted on the complaint filed by B.S.Kardan Sub-
Inspector of Railway Protection Force. It was being tried as per
the procedure for trial of warrant cases instituted otherwise than
on a police report and, therefore, that it was a case 'instituted
upon complaint' cannot be doubted at all. Sub-Section (3) of
Section 378 provides that in such a case, the complainant can,
with the special leave of this Court, file an appeal from the order
of acquittal. In this case, the complainant i.e. B.S.Kardan, or his
representative i.e. any other member of the Railway Protection
Force has not come forward for filing the present appeal. The
appeal, as aforesaid, has been filed by the State of Maharashtra,
which is not in accordance with the scheme of the provisions of
Section 378 of the Code.
7. After carefully considering the matter, I am of the
opinion that irrespective of whether the provisions of Sub-Section
(2) or of Sub-Section (4) of Section 378 would apply to this case,
and in either case, the State of Maharashtra was not entitled to file
an appeal against the acquittal in this case. This is more so, when
neither the original complainant nor the Central Government have
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been joined as party-respondent to the present appeal. The
appeal, as filed, is, therefore, not maintainable.
8. However, since the appeal had been admitted as the
relevant provisions had not been pointed out to the Court at the
time of admission, I have considered the appeal also on merits. I
have heard Mrs.M.R.Tidke, the learned Additional Public
Prosecutor for the Appellant. I have heard Ms.Vrishali Raje, the
learned counsel for the Respondent.
9.
The case of the complainant was that the complainant
- B.S.Kardan, Sub-Inspector of the Railway Protection Force
received secret information that railway wooden sleepers had been
brought to Kachh Wooden Saw Mill, Nashik. Kardan then along
with staff went to the Saw Mill and found that the railway wooden
sleepers were being cut. Kardan called two panchas and made
enquiry with the owner of the Saw Mill i.e. accused No.1 -
Shivajibhai Patel, who was unable to show any receipt in respect
of the possession of the said sleepers. There were 39 wooden
sleepers having some marks indicating the same to be 'railway
property'. The accused No.1 Shivajibhai disclosed that he had
purchased the said sleepers at the rate of Rs.60/- per sleeper from
Nizamuddin (accused No.2) - the respondent herein - who had
brought the same in a truck at about 9.00 a.m. on that day. The
case is that the respondent was to come to the Saw Mill to receive
the payment from the accused No.1 and when he came, he was
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also apprehended. Based on the statements made by the accused
persons, three others were also arrested and prosecuted.
10. The respondent was not found to be in unlawful
possession of the property said to be 'railway property'. He was
not seen by any witness at any time in possession of the said
property. He came to be implicated on the basis of the statement
allegedly made by the accused No.1. The evidence against the
respondent consisted only of his own confessional statement, and
the confessional statements of the co-accused said to have been
recorded by Sub-Inspector Kardan, After going through the record
of the case and the Judgment delivered by the Magistrate, as also
by the Additional Sessions Judge, with the assistance of the
learned counsel for the respondent, it is clear that except the
confessional statements, there was no other evidence against the
respondent.
11. The learned Magistrate had believed the confession of
the respondent and had based his conviction thereon. The learned
Additional Sessions Judge, however, was of the view that the
confessional statement of the respondent recorded by Sub-
Inspector Kardan could not be safely relied on. The Additional
Sessions Judge referred to the evidence of panch Pandurang Kale
(PW6), according to whom, the confessional statement of the
respondent (Exh.15) was not recorded by Sub-Inspector Kardan at
all. This witness had indeed stated in his evidence that Sub-
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Inspector Kardan was not present, when the same was being
recorded. Based on the doubt, which arose from the evidence of
this witness, the learned Additional Sessions Judge reversed the
Order of conviction and acquitted the respondent.
12. I have carefully considered the matter.
13. That, an officer from Railway Protection Force not
being police officer, the confessional statement made by a person
before such officer would not be hit by the provisions of Section
25 of the Evidence Act cannot be doubted. As such, it can be
received in evidence. Before receiving such a confession in
evidence, it should, however, appear to the Court that the
confession is not caused by any inducement, threat or promise, as
has been referred to in Section 24 of the Evidence Act. Section 24
of the Evidence Act lays down that a confession made by an
accused person is irrelevant in a criminal proceeding, if the making
of the confession appears to the Court to have been caused by any
inducement, threat or promise, having reference to the charge
against the accused person, proceeding from a person in authority
and sufficient, in the opinion of the Court, to give the accused
person grounds, which would appear to him reasonable, for
supposing that by making it he would gain any advantage or avoid
any evil of a temporal nature in reference to the proceedings
against him. The word, 'appears' used in this Section is significant.
The appropriate meaning of the word 'appears' is 'seems'. It
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imports a lesser degree of satisfaction than required for 'proof'. It
is well settled that it would be for the prosecution to affirmatively
establish that the confession on which reliance is being placed had
not been caused by inducement, threats or promise. A positive
rule of criminal law is that no statement by an accused is
admissible in evidence against him unless it is shown by the
prosecution to have been a voluntary statement in the sense that it
has not been obtained from him either by fear or hope of
advantage exercised or held out by a person in authority. Though
the officers from the Railway Protection Force are held not to be
'police officers', still, they do have powers to arrest and detain a
person, on the accusation of such person having committed an
offence punishable under the provisions of R.P.U.P. Act.
Therefore, the voluntariness of a confession made before such an
officer, would need to be ascertained before the same is received
in evidence and acted upon by a Court of Law.
14. I have examined the confessional statement of the
respondent (Exh.15). I do not find that any of the usual
precautions to ensure the voluntary nature of the confession were
taken by the officer recording confession of the respondent. The
respondent was not asked why he was making the confession, the
reply to which would have gone a long way in ascertaining the
voluntariness or otherwise of the confession. I do not find that it
was explained to the respondent that he was not bound to make
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confession and that if he would make one, the same may be used
as evidence against him. Neither the record of the confessional
statement (Exh.15), nor the evidence of Sub-Inspector - Kardan
shows that any such warning was given to the respondent.
15. It is not the policy of the law to encourage proof of the
guilt of a person solely by his own confessional statement. In this
case, except his own confessional statement and that of the co-
accused, there was no other evidence against the respondent.
16.
It also needs to be noted that, in spite of the fact that
the RPUP Act provides for a minimum sentence, all the accused
persons, who pleaded guilty, were dealt with leniently by
awarding a sentence only of Simple Imprisonment till the rising of
the Court and of fine. Considering this, along with other relevant
aspects, the confessions having been caused by any inducement, or
promise, cannot be ruled out.
17. In any case, the doubt felt by the Additional Sessions
Judge, 'whether the statement which was said to have been made by
the respondent was indeed and in fact made by him', cannot be said
to be unreasonable, in view of the testimony of Pandurang Kale
(PW6). No evidence to corroborate the facts appearing in the
confessional statements was collected; and, at any rate, no such
evidence was produced during the trial.
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18. When such was the position, and when except the
confessional statements of co-accused, which were also recorded
without taking precautions to ensure the voluntariness thereof and
without administering any caution to them, there was no other
material against the respondent, the order of the acquittal passed
by the learned Additional Sessions Judge cannot be said to be
suffering from any error or illegality.
19. The view of the matter as taken by the learned
Additional Sessions Judge - in any case - is, a possible view. No
interference with the impugned Judgment and Order is, therefore,
warranted.
20. The appeal is dismissed.
(ABHAY M. THIPSAY J.)
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