Namdeo S/O Narayan Pagote And Another vs The Union Of India Through Rpf ...
2026 Latest Caselaw 2320 Bom

Bombay High Court

Namdeo S/O Narayan Pagote And Another vs The Union Of India Through Rpf ... on 7 March, 2026

2026:BHC-NAG:3850



                                                                        65 revn no.220.17.odt..odt
                                                          1


                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     NAGPUR BENCH, NAGPUR.

                         CRIMINAL REVISION APPLICATION NO. 220 OF 2017

                    1.      Namdeo s/o Narayan Pagote
                            Aged about 70 years,
                            Occupation:- Retired.
                            R/o Vasant Nagar, Dist. Nagpur                                    APPLICANTS
                    2.      Pradeep s/o Kisan Gajbhiye,
                            Aged about 57 years, Occ. Service,
                            R/o Jagjivan Nagar, Dist. Nagpur

                                                      // V E R S U S //

                    1.      The Union of India,
                            Through RPF Inspector,                                       NON-APPLICANT
                            Railway Protection Force, Itwari,
                            Nagpur
                    -----------------------------------------------------------------------------------
                    Mr. S.S. Jaiswal, Advocate a/w Mr. Ritesh Kalra, Advocate
                    and Mr. R.S. Kalangiwale, Advocate for the applicants.
                    Ms. Neeraja Choubey, Advocate for non-applicant.

                    -----------------------------------------------------------------------------------


                    CORAM : URMILA JOSHI PHALKE, J.

                     JUDGMENT RESERVED ON:- 26.02.2026
                    JUDGMENT PRONOUNCED ON:- 07.03.2026

                    ORAL JUDGMENT :

1. Heard.

2. ADMIT. Taken up for final disposal with the

consent of learned counsel for the parties.

65 revn no.220.17.odt..odt

3. The revision application is filed by the

applicants who are the original accused for setting aside the

judgment and order passed by the Judicial Magistrate First

Class, Railway Court, Nagpur in Regular Criminal Case

No.313/1991 by which they were convicted for the offence

punishable under Section 3(a) of Railway Property

(Unlawful Possession) Act, 1966 and sentenced to suffer

rigorous imprisonment for three months each and to pay

fine of Rs.2000/- each and in default of payment of fine he

further suffers simple imprisonment for three days and same

was confirmed in Criminal Appeal No.180/2016 by

judgment dated 27.12.2017.

4. Brief facts which are necessary for the disposal

of the criminal revision application are as under:-

On 03.12.1990, CBI Inspector M.M. Singh

received an information that one Dilip Sudame co-accused is

possessing the railway property. Therefore, he along with

staff conducted search of scrap shop of said co-accused and

found 980 KG Ferro Manganese, 8CST-9 Plates, 1, Tie-bar 65 revn no.220.17.odt..odt

which was railway property possessed by him unauthorized.

During inquiry with him it reveals to him that present

applicants who are accused Nos.9 and 11 are the RPF

constables and he purchased the said railway property from

them. After seizure and arrest of co-accused CBI Inspector

has handed over the seized material on Supratnama to

Deputy Station Superintendent, Bhandara Shri Gajanan

Deshmukh who lodged report of the incident with RPF post,

Itwari, Nagpur. During the inquiry conducted by the

complainant co-accused have confessed that they loaded

ferro manganese from a wagon which was stationary in

Railway Station Bhandara, in a Metador which was brought

by accused Nos.7 and 8 on the say of present applicants

accused Nos.9 and 11 along with accused No.10. The

accused No.2, in his statement stated that he has assisted

present applicants and accused No.10 in loading ferro

manganese in Matador. Co-accused who are accused Nos.7

and 8 also confessed in the statement recorded by

complainant that the railway property i.e. ferro manganese

was loaded in the said Metador on the say of present

applicants and co-accused No.10 with the help of other 65 revn no.220.17.odt..odt

accused. The complainant has seized the property in

question from the custody of Deputy Station

Superintendent, Bhandara and draw the sample which was

examined from the expert and it was matched with the

seized property ferro manganese. The wagon was got

weighed at Railway Station Itwari. The muster roll

disclosing the fact that present applicants who are RPR

constable were deputed on duty of protection of said wagon.

After completion of the inquiry, it was found that present

applicants are involved in committing offence punishable

under Section 3(a) of the Act and accordingly, on the basis

of report the crime was registered against the present

applicants.

5. During trial accused Nos.1, 2 and 7 i.e. Dilip

Sudame, Rajababu Tulshiram Bansod and Manohar Wasnik

pleaded guilty and they are convicted. Before framing of

charge evidence of the complainant as witnesses was

recorded. Thereafter charge was framed vide Exh.178

against accused No.3 Amit Arun Joshi, accused No.5- Sevak

Tulshiram Thote, accused No.6 Diwalu Baliram Waghmare, 65 revn no.220.17.odt..odt

accused No.8-Omkar Mangal Gajbhiye, accused No.9-

Namdeo Narayan Pagote (applicant No.1) accused No.11-

Pradip Kisan Gajbhiye and accused No.12-Siddarth Dashrath

Bagle. During pendency of trial accused No.4-Babarao

Muka Sahare and accused No.10- Jaiprakash Khanna

reported to be dead.

6. After recording the evidence of the witnesses

the trial Court held them guilty and convicted them as

aforesaid. Being aggrieved and dissatisfied with the same

present applicants preferred an appeal bearing No.180/2016

which came to be dismissed. Hence, present revision

application is preferred by the applicants.

7. Heard learned counsel for the applicants who

submitted that the impugned judgment and order of

dismissal by the learned Additional Sessions Judge-9,

Nagpur is erroneous as learned Judge has not considered

the consequence of material contradictions and omissions

brought on record. Learned Appellate Court has also failed

to consider that many of the confessional statements of the 65 revn no.220.17.odt..odt

accused did not bear the signature of the witnesses time and

place. This material aspect has totally neglected by the

learned Additional Sessions Judge, Nagpur. Learned Sessions

Judge has also ignored the fact that confessional statement

of the co-accused is not admissible against the present

applicants. Learned counsel for the applicants placed

reliance on the decision of the Balkishan A. Devidayal Vs.

State of Maharashtra reported in (1980) 4 SCC 600,

Kashmira Singh vs. State of Madhya Pradesh reported in

(1952) 1 SCC 275, Sidharth and others vs. State of Bihar

reported in (2005) 12 SCC 545 and Mohd. Naushad vs.

State (Government of NCT of Delhi) reported in (2024) 12

SCC 494. In view of that present revision application

deserves to be allowed.

8. Per contra learned APP supported both the

judgments of the trial Court as well as First Appellate Court

and submitted that considering the scope of the revision as

this Court cannot re appreciate the evidence in revision.

The interference is called for when the judgment of the trial

Court or the first Appellate Court is on the basis of no 65 revn no.220.17.odt..odt

evidence or evidence which even if believed in entirety

cannot prove the guilty of the accused. Here the trial Court

as well as the First Appellate Court has considered the entire

aspect and evidence and thereafter recorded the conviction.

Hence no interference is called for.

9. The allegation against present applicants is that

they were serving as Railway Police Constables and while

on duty they have committed the theft of the railway

property and sold it to the co-accused. In order to prove the

guilt of the accused prosecution has examined in all 15

witnesses and also relied on the documentary evidence.

Witness PW-3 Vidyadhar Pinjarkar who was examined vide

Exh.206, who was working as Senior Siding Clerk, MEH

Chandrapur has deposed that total 25 wagons proceeding

from Chandrapur to Durgapur were loaded with ferro

manganese. PW-8 Surendra Lahotre also deposed that at

about 8.00 a.m. DSEY train had arrived at Chandrapur

Railway Sation and its entry was taken in wagon exchange

book about its arrival and entry of 25 loaded wagon out of

27 wagons were taken. He has proved these entries vide 65 revn no.220.17.odt..odt

Exh.229. PW-3 has admitted in his cross-examination that

ferro manganese is also available in Tumsar. The said

admission was highlighted and emphasises by the learned

counsel for the applicants and submitted that PW-3 has not

received any complaint from SCL, Durgapur about shortage

of ferro manganese. The material evidence adduced by PW-

12 Ramesh Meshram vide Exh.238, who deposed that on

14.11.1990 he had been to Bhandara for examination of

wagon and he has inspected said wagons for it's repair. He

repaired the wagon and the label affixed on the wagon was

displaying ferro manganese in it. In his cross-examination

the omission that he has not stated the said fact in his

submission that there was label on said wagon was brought

on record by the defence. But it is not an material omission.

Another witness PW-17 was working as Deputy Station

Superintendent Bhandara has corroborated the evidence of

other witnesses by testifying that a train proceeding from

Chandrapur was carrying manganese and wagon

No.86860CR was detached from the said train and

document to that effect is the certificate Exh.149. Thus,

material evidence is brought on record by this witness who 65 revn no.220.17.odt..odt

has proved muster roll at Exh.140 which shows that present

applicants were deputed at Goods shed to protect the goods

till 19.11.1990. This witness also proved that complainant

has seized piece of ferro manganese from him for chemical

analysis.

10. The prosecution has also examined PW-Sarau

Bharia vide Exh.232 who deposed that on 04.02.1991 he

was working at Railway Weighing Bridge, Itwari and

contents of weight certificate Exh.141 are true.

11. Enquiry Officer S.S. Ingle was examined vide

Exh.40, who deposed that accused No.1 Dilip Sudame

disclosed to him that ferro manganese was sold to him by

present applicants and deceased accused No.10-Jaiprakash

Khanna. His evidence further shows that said accused No.1

Dilip Sudame could not produce any document legally

authorized him to possess the said material. This Inquiry

officer has recorded statements of the witnesses and

confessional statement of accused Nos.3, 4, 5 and 6 who

confessed that they loaded ferro manganese from a wagon 65 revn no.220.17.odt..odt

which was stationary at Railway Station Bhandara in a

Metador brought by accused Nos.7-Manohar Wasnik and

accused No.8 Omkar Gajbhiye who also confessed that it

was accused No.3-Amit Joshi, accused No.4- Babarao

Sahare, Accused No.5 Sevak Thote and accused No.6

Diwalu Waghmare were involved in loading ferro

manganese in said Metador on the say of present

applicants. Thus, the evidence discussed above discloses that

DSEY train had arrived at Chandrapur at about 8.00 a.m.

having total 27 wagons out of it was loaded with ferro

manganese which were proceeding from Chandrapur to

Durgapur. The wagon loaded with ferro manganese was

standing stationary at Bhandara Railway Station till

19.11.1990. On 14.11.1990 the wagon No.86860CR was

inspected and repaired by PW No.12 Ramesh which was

detached from the train and thereafter weighed at Railway

Weighing Bridge, Itwari. Despite lengthy cross-examination

nothing is elucidated to disbelieve version of complainant

witnesses to extend that the wagon was standing stationary

in the Bhandara Railway Station was loaded with ferro

manganese and it was in possession and in charge of 65 revn no.220.17.odt..odt

Railway authorities. Exh.144 and 139 reveal that on

4.02.1991 the wagon CR No.86860 was having net weight

of 516 quintal. Exh.145 is consignment slip which reveals

that CR No.86860-556 was carrying loose ferro manganese

and its sender name was Maharashtra Elecktrosmelt

Limited. Consignment was sent to the Superintendent Raw

Material Department Durgapur, Steel Plant Durgapur.

11. On perusal of the confessional statement of the

accused No.3, 5, 6 and 8 which are respectively at Exh. 129,

130, 133 and 135. These confessional statement disclose

the involvement of the present applicants in the alleged

offence.

12. Before entering into the merits of the present

case it is necessary to see the relevant provisions of the

Railway Property Unlawful Possession Act. The definition of

Railway Property Act is defined in clause -(d) of Section 2 of

said 1966 Act.

14. The section 3 deals with the offence of having possession of the Railway Property Act. Section 3 provides that :-

65 revn no.220.17.odt..odt

"Whoever 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 two years and such fine shall not be less than two 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.

Thus, if any person is found or proved to be in possession of any "railway property", which is reasonably suspected of having been stolen or unlawfully obtained, the burden shall shift on to that person, to prove his innocence, 65 revn no.220.17.odt..odt

that is to say, to establish that he came into possession of the "railway property" lawfully.

Section 4 provides punishment for persons wilfully conniving at an offence under the provisions of this Act.

Section 5 says :-

"Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence under this Act shall not be cognizable".

13. It may be noted that in spite of provision in the

Code of Criminal Procedure to the contrary, offences under

this Act have been made non cognizable and, as such,

cannot be investigated by a police officer under the Code. It

follows that the initiation of prosecution for an offence

inquired into under this Act can only be on the basis of a

complaint by an officer of RPF and not on the report of a

police officer under Section 173(4) of the Criminal

Procedure Code, 1898.

Section 6 gives powers to any superior officer or member of the Force to arrest without an order from a magistrate and without a warrant, any person who has been concerned, in an offence punishable under this Act, or against whom a reasonable suspicion existed of his having been so concerned.

65 revn no.220.17.odt..odt

Section 7 of the Act provides that the procedure for investigation of a cognizable offence has to be followed by the officer before whom the accused person is produced.

Section 8 of the 1966 Act provides for an inquiry to be made against the arrested persons. According to it, when any person is arrested by an officer of the Force for an offence punishable under this Act or is forwarded to him under Section 7, he shall proceed to inquire into the charge against such person. It is to be noted that such power of inquiry, has been conferred on an officer of the Force, although he is not an officer incharge of a police station as envisaged by Section 173 of the Code of Criminal Procedure, 1898. Sub-section (2) of this section confers on the officer of the Force "the same powers" for the purpose of the inquiry under sub-section (1) and subject to the same provisions "as the officer incharge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898 when investigating a cognizable case." Then there is a proviso which says:

"Provided that-

(a) if the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magis-

trate having jurisdiction in the case, or forward him in custody to such Magistrate;

(b) if it appears to the officer of the Force that there is not sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the officer of the Force may direct, to appear, if and when so re- quired, before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior."

65 revn no.220.17.odt..odt

Section 9 gives powers to an officer of the Force to summon persons to give evidence and produce documents, or any other thing in any inquiry for any of the purposes of this Act. Sub-sections (3) and (4) provide:

"(3) All persons, so summoned, shall be bound to attend either in person or by an authorised agent as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required:

Provided that the exemption under Sections 132 and 133 of the Code of Civil Procedure, 1908, shall be applicable to requisitions for attendance under this section."

"(4) Every such inquiry as aforesaid shall be deemed to be a 'judicial proceeding' within the meaning of section 193 and Section 228 of the In-

dian Penal Code."

Section 10 enables an officer of the Force, having reason for the requisite belief to apply for a search warrant to the Magistrate.

Section 11 provides that searches and arrests shall be in accordance with the provisions of the Code.

Section 14 makes it clear that the provisions of the Act shall override all other laws. This means that if there is anything in the 1966 Act which is incon- sistent with the Code, then on that point, the 1966 Act will prevail and the application of the Code pro tanto will be excluded. The most important example of such exclusion, as already noticed, is to be found in Section 5 of the 1966 Act which makes as offence under this Act non-cognizable, notwithstanding anything in the Code. This clearly shows that the provisions of the Code cannot 65 revn no.220.17.odt..odt

proprio vigore apply to an enquiry conducted un- der Section 8(1) of the 1966 Act by an officer of the Force.

13. The power and duty of an officer of the RPF

conducting an inquiry under the 1966 Act, differs from a

police investigation under the Code, is this. Sub-section (3)

of Section 161 of the Code says that the police officer may

reduce into writing any statement made to him in the course

of investigation. Section 162(1), which is to be read in

continuation of Section 161 of the Code, prohibits the

obtaining of signature of the person on his statement

recorded by the investigating officer. But no such prohibition

attaches to statements recorded in the course of an inquiry

under the 1966 Act; rather, from the obligation to state the

truth under pain of prosecution enjoined by Section 9(3)

and (4), it follows as a corollary, that the officer conducting

the inquiry may obtain signature of the person who made

the statement.

14. The primary duty of the member of officer of

RPF is to safeguard and protect railway property. Only such 65 revn no.220.17.odt..odt

powers of arrest and enquiry have been conferred by 1996

Act by members of the RPF as necessary and incidental to

the efficient and effective discharge of basic duty of watch

and guard. Unlike police officer who has general power

under the power to investigate or cognizable cases the

power of RPF to make an is restricted to offences under the

1966 Act.

15. After going through the relevant provisions

1966 Act and Code of Criminal Procedure it is abundantly

clear that an officer of the RPF conducting an enquiry under

Section 8(1) of the 1966 Act has does not possess several

important attributes of an officer in charge of police station

conducting an investigation under chapter XIV of the code.

The character of the 'inquiry' is different from that an

investigation the Code. The official status and powers of an

officer of the Force in the matter of inquiry under the 1966

Act differ in material aspects from those of a police officer

conducting an investigation under the said Code. Thus, it is

clear that an officer of the RPF conducting an inquiry under

Section 8(1) of the 1966 Act has not been invested with all 65 revn no.220.17.odt..odt

the powers of an officer in charge of a police station making

an investigation under Chapter XIV of the Code.

Particularly, he has no power to initiate prosecution by filing

a charge-sheet before the magistrate concerned, under

Section 173 of the Code, which has been held to be the

clinching attribute of an investigating "police officer". Thus

an officer of the R.P.F. could not therefore be deemed to

be a "police officer" within the meaning of Section 25 of

the Evidence Act, and therefore, any confessional or

incriminating statement recorded by him in the course of an

inquiry under Section 8(1) of the 1966 Act, cannot be

excluded from evidence under the said section.

16. This aspect is considered by the Hon'ble Apex

Court in the case of Balkishan A. Devidayal vs. State of

Maharashtra referred supra wherein Apex Court held that

the primary test to determine whether an officer under a

special Act is a "police officer" for the purpose of Section 25,

Evidence Act is whether that officer has been invested with

all the powers exercisable by an officer in charge of police

station under Chapter XIV of the Cr.P.C, 1898, qua 65 revn no.220.17.odt..odt

investigation of offences under that Act, including the power

to initiate prosecution by submitting a report(charge-sheet)

under Section 173 of the Code. It is not enough to show

that he exercises some or even many of the powers police

officer conducting an investigation under the Code.

17. It is further held by Hon'ble Apex Court that it

may be recalled that the primary test evolved in Badku Jyoti

Savant case reported in 1966 3 SCR 698 by constitution

Bench is:-

Whether the officer concerned under the special Act,

has been invested with all the powers exercisable by an

officer- in-charge of a Police Station under Chapter XIV of

the Code, qua investigation of offences under that Act,

including the power to initiate prosecution by submitting a

report (chargesheet) under Section 173 of the Code. In

order to bring him within the purview of a 'police officer' for

the purpose of Section 25 Evidence Act, it is not enough to

show that he exercises some or even many of the powers of

a police officer conducting an investigation under the said

Code.

65 revn no.220.17.odt..odt

18. Thus, Hon'ble Apex Court has clarified that an

officer of the RPF conducting an inquiry under Section 8(1)

of the 1966 Act has not been invested with all the powers of

an officer in charge of a police station making an

investigation under Chapter XIV of the Code. Particularly,

he has no power to initiate prosecution by filing a charge-

sheet before the Magistrate concerned under Section 173 of

the Code and thus, he could not be deemed to be a police

officer within the meaning of Section 25 of the Evidence Act

and therefore, any confessional or incriminating statement

recorded by him in the course of an inquiry under Section

8(1) of the 1966 Act, cannot be excluded from evidence

under the said section.

19. Here entire case is based on confessional

statement of the accused Nos.3, 5, 6 and 8 which are at

Exh.129, 130, 133 and 135. Said confessional statements

are recorded by Inquiry Officer who is the RPF Officer. Trial

Court as well as First Appellate Court have accepted the said

confessions on the premise that RPF authorities are not

Police Officers and confessional statement can be considered

as there is no impediment as accused being tried jointly.

65 revn no.220.17.odt..odt

However, learned trial Court and the First Appellate Court

ignored the rules 14 and 15 of the Manual of Railway Laws

(procedure for inquiry under the R.P. Act) and Sections 164

and 281 Cr.P.C. Rule 15 require that, if the accused wishes to

make a confessional statement, it should be recorded in

presence of two independent respectable witnesses and the

accused should produce before a Magistrate of competent

jurisdiction with the confession recorded by that Magistrate

as required by Cr.P.C.

20. Here there is no evidence or it is not the case

of prosecution that accused were produced before

Magistrate and had their confessions recorded by the

Magistrate as mandated, such statement cannot be sufficient

as a basis for convicting the present applicants. In this

behalf, it is necessary to note the provisions of procedure of

inquiry into offence under Railway Properties (Unlawful

Possession) Act, 1966.

21. Rules 14 and 15 of Manual of Railway Laws are

reproduced as under:-

65 revn no.220.17.odt..odt

"14. Record of oral examination and statements of witness.- 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.

15. If the accused wants to make a confessional statement, the same should be recorded in the presence of two respectable and independent witness/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.

(sections 164 and 281 of the Code of Criminal Procedure)."

22. In view of above said provision the

prosecution has not come with the case that accused

were produced before Magistrate of the competent

jurisdiction and confession be recorded by the said

Magistrate. Moreover prosecution evidence nowhere

shows that said confessional statements of the accused 65 revn no.220.17.odt..odt

are recorded in presence of two respectful and

independent witnesses and therefore, the same cannot

be said to be sufficient to form basis for the conviction

of the accused. The judgment of the trial Court as well

as First Appellate Court show that co-accused i.e.

accused Nos.3, 5, 6 and 8 made confessional

statements showing the involvement of the present

applicants. Besides that the prosecution placed reliance

on the oral evidence of the complainant witness which

is supported by documentary evidence Exh.140,

muster entry which shows that at the time of incident

accused Nos.9,10 and 11 was working as RPF constable

and deputed at Bhandara Railway Station and was duty

bound to protect Railway Property. It is not disputed by

the accused also that on the day of incident at

Bhandara Railway Station they were deputed on duty.

It is also not disputed that there was theft of railway

property from the stationary wagon. However, there is

no evidence on record to show that it was present

applicants who have handed over the said ferro

manganese to the co-accused and the co-accused have 65 revn no.220.17.odt..odt

sold the same. As per prosecution case accused Nos.3,

4, 5 and 6 have confessed that they loaded ferro

manganese from wagon which was stationary in

Railway Station Bhandara which was brought by the

accused Nos.7 and 8 on the say of present applicants

and deceased accused No.10. Accused No.2 in his

statement stated that he has assisted accused Nos.9, 10

and 11 and present applicants and deceased accused

No.10 loaded in said wagon. Accused Nos.7 and 8 also

confessed in the statement recorded by the

complainant that railway property ferro manganese

was loaded in the said Metador on the say of the

present applicants and deceased accused with the help

of accused Nos.3, 4, 5 and 6. Admittedly complainant

drew the samples from seized property and get it

examined from expert which was matched with the

seized property ferro manganese. The wagon was got

weight at Railway Station, Itwari. Muster roll disclosing

the fact that accused Nos.9, 10 and 11 i.e. present

applicants and deceased accused are the RPF

constables were deputed on duty of protection of said 65 revn no.220.17.odt..odt

wagon. After completion of the investigation the

inquiry officer came to the conclusion that involvement

of the present applicants is in the handing over of the

railway property to the other co-accused. Thus, except

the evidence that present applicants were deputed on

duty for protection of the wagon rest of the evidence

on which prosecution relied upon is the confessional

statement of the co-accused.

23. Admittedly, there is no evidence to show

that said confessional statement was recorded by

inquiry officer in presence of two respectable and

independent witnesses and the requirement is also that

said independent witnesses should also require to affix

their signature there upon. Admittedly, the said

confessional statements are not recorded in presence of

two independent witnesses. The accused were also not

produced before Magistrate of a competent jurisdiction

to record their confession in view of Rule 15 of the

Railway Properties (Unlawful Possession) Act, 1966

and Rules thereby. Therefore, even if it is assumed that

present applicants were deputed on duty and other co-

65 revn no.220.17.odt..odt

accused have made confessional statement before RPF

Authority, that fact would not be sufficient to convict

the present applicants as there is no direct evidence

against present applicants to show that they have

handed over said ferro manganese to the co-accused.

Besides the confessional statement merely on the

strength of confessional statement, they cannot be held

guilty.

24. The law is settled as far as revisional

powers are concerned. The scope of interference by

this Court in revisional jurisdiction under Section 397

of the Criminal Procedure Code, is limited. In its

revisional jurisdiction, this Court, is not expected to sit

as a Court of Appeal and re-appreciate the evidence.

However, when the findings of the Court below, appear

to have been recorded, on the basis of no evidence, or

evidence which even if believed in entirety, cannot

prove the guilt of the accused for the offences charged,

this Court, would be justified, in exercising its

jurisdiction, under Section 397 of the Code of Criminal

Procedure.

65 revn no.220.17.odt..odt

25. Thus, the evidence of the RPF officers as

prosecution witness sufficiently shows that there is non

compliance of Rule 15 of the Railway Properties

(Unlawful Possession) Act, 1966 and Rules thereby and

the confessional is not recorded in presence of the

independent witnesses and the accused are also not

produced before Magistrate to record the confessions.

In view of non-compliance and violation of the

provisions i.e. Rules 14 and Rules 15 as well as non

compliance of Sections 164 and 281 of the Code of

Criminal Procedure. The judgment and order passed

by the learned trial Court as well as First Appellate

Court was not justified in concluding that the case of

the prosecution is proved and thereby convicting the

present applicants.

26. It is observed by Hon'ble Apex Court in the

case of Kashmira Singh vs State of Madhya Pradesh

(supra) relied upon by the learned counsel for the

applicants that the co-accused's confession has played

an important part in implicating the appellant-accused,

and the question at once arises, how far and in what 65 revn no.220.17.odt..odt

way the confession of a co-accused person can be used

against an accused? It is evident that it is not evidence

in the ordinary sense of the term. It does not indeed

come, within the definition of "evidence" contained in

Section 3 of the Evidence Act. It is not required to be

given on oath, nor in the presence of the accused, and

it cannot be tested by cross-examination. It is obviously

evidence of a very weak type. It is a much weaker type

of evidence than the evidence of an approver, which is

not subject to any of those infirmities. Such a

confession cannot be made the foundation of a

conviction and can only be used in "support of other

evidence". Even after accepting the legal position that

RPF officer is not a Police Officer and therefore,

confession recorded by him is not hit by Section 25 of

the Indian Evidence Act then also question remains that

as there is no compliance of Rule 15 while recording

the confession then such type of the evidence which is

produced before the Court could not suffice as a basis

for convicting the present applicants.

65 revn no.220.17.odt..odt

27. In this view of the matter, it is difficult to

say that the view taken by the learned Magistrate as

well as First Appellate Court is legal and proper. This

would cover under the requirement that within the

scope of Section 397 of the Criminal Procedure Code

the scope of revision for interference is when the

findings of the courts below even if believed in entirety

cannot be proved guilt of the accused for the offence

charge. As already observed by me that except the

evidence of the confessional statement of the co

accused there is absolutely no other evidence to

connect the present applicants even if the said

confessional statements are accepted it is not within the

purview of Rule 15 of the Railway Properties (Unlawful

Possession) Act 1966 and therefore, such type of

evidence would not be sufficient to convict the present

applicants. In view of that revision application

deserves to be allowed.

28. Accordingly, I proceed to pass the following

order:-

65 revn no.220.17.odt..odt

(i) Criminal Revision Application is allowed.

(ii) Conviction and order of sentence passed by Judicial Magistrate First Class, Railway Court convicting the present applicants of the offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and thereby sentencing to undergo Rigorous imprisonment for three months each and to pay fine of Rs.2,000/- each and in default of payment of fine to suffer Simple imprisonment for three days by the judgment dated 30.07.2016 and confirmed by the Additional Sessions Judge-9 Nagpur in Criminal Appeal No.180/2016 by judgment dated 27.12.2017 is hereby quashed and set aside.

(iii) The applicants are acquitted for the offence punishable under Section 3(a) of the Railway Property (Unlawful Possession ) Act, 1966.

(iv) The amount of fine if deposited by the present applicants be refunded to them after appeal period is over.

Criminal Revision Application is disposed of.

(URMILA JOSHI PHALKE, J.)

manisha

Signed by: Mrs. Manisha Shewale Designation: PA To Honourable Judge Date: 09/03/2026 10:47:40