State (Through Inspector Rpf) vs Ravi Kant
2009 Latest Caselaw 4564 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment Reserved on: 5thNovember, 2009
                     Judgment Delivered on: 10th November, 2009

+                             CRL.REV.P.137/2003

        STATE (THROUGH INSPECTOR RPF)           ..... Petitioner
                      Through: Mr.Manoj Ohri, APP for State
                               SI R.K.Yadav, RPF O/Post
                               Tughlakabad
                 versus

        RAVI KANT                                     ..... Respondent
                              Through:   Mr.Rajesh Mahajan, Adv.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to see
        the judgment?

     2. To be referred to the Reporter or not?                Yes

     3. Whether the judgment should be reported in the
        Digest?                                               Yes

INDERMEET KAUR, J.

1. On 12.11.2002, the Additional Sessions Judge had

discharged the petitioner Ravi Kant in a complaint which had been

filed against 13 persons including the present petitioner under

Section 3 of the Railway Property (Unlawful Possession) Act 1966

(hereinafter referred to as „the said Act‟). The court had held that

there is no prima facie evidence against the petitioner in the

absence of which the issuance of the process for summoning the

petitioner by the Trial Court was a bad order and was accordingly

set aside. The Trial Court had summoned the petitioner on this

complaint vide its order dated 24.12.2001.

2. Briefly stated the facts are that on 2.7.2001, the Vigilance

department of the Railway Board received an information that

railway servants of electric loco shed Tuglakabad of Western

Railway will make excess delivery of M/s Turning/boring in

connivance with the party purchaser. Acting upon this information

Mahesh Kumar Inspector investigation, Vigilance Railway Board,

Sh.Vishok Gupta, Chief Vigilance Inspector Northern Railway,

Sh.Mahesh Chandra Gupta, Senior Vigilance Inspector Northern

Railway came to the RPF Post of Tuglakabad. They were

accompanied with HC RPF Dharam Vir Meena; they reached

Jeewan Dharam Kanta, Madan Pur Kuadar. At about 6 PM, three

trucks loaded when turning and boring arrived at the said dharam

kanta for weightment; these trucks left at about 6.35 PM;

Dharamvir Singh and Vishok Gupta followed them and stopped at a

distance of half a kilometer. In the meanwhile Mahesh Kumar and

Mahesh Chander Gutpa arrived at the Jeewan dharam kanta and

demanded the documents regarding the turning and boring loaded

in the trucks. The present petitioner i.e. Ravi Kant who was the

Assistant Controller of Stores (W.R.) Tuglakabad (ACOS) was

standing at the spot along with Raghubar Dayal, Divisional Store

Keeper, G.N.Gupta, Stock Verifier, R.L.Gupta, SI/RFP and Kadir of

M/s Saboo Ruby Traders. Sale delivery issue note and the

weightment slips of the dharam kanta were produced. These

documents were seized by the vigilance team; they reflected that

6070 kgs. of turning and boring had been loaded in the three

trucks; on the weightment of the material these trucks were found

to be loaded with 5465 kgs. of excess turning and boring. The

aforestated material was seized.

3. These allegations had become the subject matter of the

complaint dated 24.12.2001 on which the summons had been

issued on the same day. Petitioner had been arrayed as accused

No.12 in the complaint.

4. The court of the Additional Sessions Judge had held that

there is no dispute to the fact that the petitioner was present at the

spot i.e. at the dharam kanta when the weightment of the disputed

material had been effected. However, mere presence of the

petitioner would not have been sufficient to make out the

ingredients of an offence under Section 3 of the said Act. The

explanation given by the petitioner that his presence was required

at the spot only to countersign the sale issue note which he had not

signed and which was an admitted position, was for the reason

that the petitioner had come to know that the trucks had been

apprehended and this had reflected the bonafides on the part of

the petitioner as it was on this ground that he had refused to

countersign this sale issue note; had he been in connivance with

the other co-accused he would have signed the sale issue note.

Ingredients of Section 3 of the said Act not having been made out

the petitioner had been discharged.

5. The State has impugned this order. It is pointed out that the

averments in the charge-sheet make out an offence under Section

3 of the said Act; the petitioner was in possession of that property

which was suspected to be stolen/unlawfully obtained; it was also a

railway property; ingredients of Section 3 of the said Act were

prima facie made out for this proposition that the word "is" as is

contained in Section 3 of the said Act may also be read as "was"

i.e. in the past tense; reliance has been placed upon Om Prakash

vs. State of U.P. AIR 2008 SC 1112. It is submitted that the

impugned order of the Additional Sessions Judge had unjustifiably

set aside the summoning which was passed by the Magistrate; the

court was yet to go into the question as to whether the provision of

Section 114 of the IPC are attracted or not; ingredients of

abetement of the offence as contained in Section 114 of the IPC

qua the petitioner were made out; it was for this reason that he

had been roped in.

6. Arguments have been heard and the record has been

perused.

7. Railway property has been defined in Section 2 (d) of the Act

and which reads as follows:

Section 2(d) "railway property" includes any goods, money or valuable security or animal, belonging to, or in the charge or possession of, a railway administration.

8. Section 3 deals with the penalty for unlawful possession of

railway property. The same reads as follows:

Section 3. 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 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.

9. In State of Maharashtra v. Viswanath Tukaram :

1979CriLJ1193 , it was held that the following ingredients are

necessary to bring in the application of Section 3:

"(i) The property in question should be railway property;

(ii) It should be reasonably 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."

10. The question which arises for decision is as to whether on a

prima facie reading of the complaint, the ingredients of the section

3 are made out; it was under this provision of law that the

complaint has been filed.

11. Averments made in the complaint have been perused. The

name of the present petitioner who has been arrayed at No.12

finds mention at three places i.e. in the complaint at running page

no. 4, 7 and 9. These averments are only to the effect that the

petitioner Ravi Kant was present at Dharamkanta; there is no

averment that he abetted the offence i.e. he had allowed the

excess of 5465 kgs. of railway property to be taken out illegally.

12. Presence of the petitioner at the Dharmakanta would not by

itself be sufficient to hold that he was guilty prima facie unless it is

substantiated by the material on record. The material on record

besides the complaint are the documents which have been filed

along with the complaint which includes the Stores Depots-

Receipts and Custody of Stores Rules contained in Chapter XII and

appended to this Act. Under Rule 1201 the Depot Officer is

responsible to the Controller of Stores. The present petitioner has

been described as ACOS i.e. Assistant Controller of Stores. Under

Rule 2417 the depot officer was to supervise the auction and would

be responsible for the conduct of the auction. Under Rule 2426 the

material sold shall be weighed and counted before the delivery and

be supervised by four persons which does not include the Assistant

Controller of Stores i.e. the present petitioner. The loading of the

sold materials under Rule 2433 has to be done under the

supervision of the Depot Officer or his assistant.

13. A perusal of these Rules shows that the presence of the

petitioner at the time of the weightment of the disputed material

was not a part of his duty; he being the Assistant Controller of

Stores was not even required to be present at the time of the

weightment. The Circular dated 17.2.1975 of the Western Railway

i.e. Stores Instruction No.23 RB 01 WR 03 relied upon by the Trial

Court also states that the sale issue note is to be signed by the

Controlling Officer ensure a post scrutiny of the document at the

gazetted levels. Admittedly this sale issue note had not been

countersigned by the petitioner. The explanation of the petitioner

accepted by the trial court was to the effect that he was present at

the spot to countersign the sale issue note but when he learnt

about the apprehension of the goods when he was at the

Dharamkanta itself he refused to sign the sale issue note. This

explanation appeared to be satisfactory. It appears that there was

a negligence on the part of the subordinate officers of the

petitioner for which the petitioner cannot be held liable.

14. The ingredients of Section 3 of the said Act are not attracted;

the question of the applicability of Section 114 of the IPC i.e. the

abetement of the offence would also not arise in the absence of

their being no such averment from which such an inference could

have been drawn. Even otherwise, criminal law is not based on

inferences and surmises; ingredients of the offence even at the

first stage have to be prima facie established.

15. The judgment reported in Purna Chandra Sen Gupta and

Ors. Vs. Superintendent & Remembrancer of Legal Affairs, W.B.

1993 (3) Crimes 598 (SC) relied upon the counsel for the

petitioner, was an appeal against final conviction; the appellants

were Rakshaks in charge of the protection of railway property;

charge-sheet against them had been filed under Section 3 (a) of

the Act and Section 114 of the IPC; they had been held guilty as

there was clear evidence after trial to establish that there has been

a dereliction of duty which amounted to an abetement under

Section 114 of the IPC.

16. Complaint in this case is only under Section 3 of the said Act.

Facts of this case are distinct; the duties of the Assistant Controller

of Stores as enumerated in the Rules discussed supra do not prima

facie qualify for a dereliction of duty on the part of the petitioner;

there is also not a whisper of this in the complaint. The second

judgment relied upon by the counsel for the State of Om Prakash

(supra) was an appeal against conviction where the appellant was

admittedly the contractor and it was at his behest that the articles

had been unloaded; said facts are also distinguishable.

17. Order of the trial court calls for no interference. It had

correctly been appreciated that there is not an iota of evidence to

summon the petitioner. Revision petition is without any merit; it is

dismissed.

(INDERMEET KAUR) JUDGE 10th November, 2009 rb