Madras High Court
The State Rep. By vs D.Sethu on 3 September, 2021
Crl.A(MD) No.56 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A (MD)No.56 of 2016
The State Rep. by
The Public Prosecutor,
Hight Court of Madras,
(RPF.Karaikudi
Crime No.3/2003) : Appellant
Vs.
1.D.Sethu
2.G.Babu : Respondents
PRAYER: The Criminal Appeal is filed under Section 378 of the Code
of Criminal Procedure, to allow the appeal and set aside the judgment of
acquittal of the respondents/accused (A-1 & A-2) passed by the Court of
the Sessions Judge, Sivagangai in C.A.No.23/2011 dated 30.10.2014.
For Appellant : Mr.E.Antony Sahaya Prabahar
Government Advocate (crl.side)
For Respondents : Mr.S.Poorna Chandran
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Crl.A(MD) No.56 of 2016
JUDGMENT
Aggrieved over the order of acquittal dated 30.10.2014 made in
Crl.A No.23 of 2011 on the file of the learned Sessions Judge,
Sivagangai, the appellant, who is the respondent in the said appeal,
preferred this criminal appeal and prayed to set aside the judgment dated
30.10.2014.
2.For the easy reference hereinafter the appellant is called as
complainant and the respondents 1 and 2 are called as accused Nos. 1
and 2.
3. The case of the prosecution in brief is as follows:-
(i)During the relevant point of time, PW1-Philips Jayakumar was
working as Inspector of Police, Railway Protection Force, Virudhunagar.
On 20.10.2003, he received the information that the first accused
unlawfully possessed the property which belongs to the railway.
Immediately, after receipt of the said information, he obtained the search
warrant and on the same day around 2.30 pm in the presence of first
accused, who is the owner of the Sawmill, he conducted the search in a
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Crl.A(MD) No.56 of 2016
shop situated at No.22, Railway Main Road, Karaikudi. During enquiry,
the first accused made a statement as on 18.10.2003 around 4.00 pm by
using the Mini lorry bearing Registration No.TN 72 B 1456, the accused
Nos.3 to 7 had handed over the said wooden pieces and requested to cut
the said wooden pieces.
(ii) In respect to the possession, the first accused did not having
any valid authorisation. Hence, PW1 prepared a search list and in the
presence of PW2-Samayadurai and one Kalyanasundaram, he recovered
the wooden pieces M.O.1 to M.O.19. Further, he has recorded the
confession statement from the first accused under Ex.P2 and after
recording the confession statement, he arrested the first accused, brought
him to the Karaikudi Railway Protection Force outpost and registered the
case against the accused in Crime No.3 of 2003 under Section
3(a) of Railway Properties (Unlawful Possession ) Act (hereinafter
referred as “the Act”). The copy of the occurrence report was marked as
Ex.P3. On 21.10.2003, he produced the accused along with recovered
wooden sleepers before the Court, which is having the jurisdiction.
(iii) In continuation of investigation, on 22.10.2003 around 7.00
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Crl.A(MD) No.56 of 2016
am in Karaikudi main road, he recovered the Minilorry bearing
registration No. TN-B-1456 under a cover of mahazar Ex.P4. He also
arrested the driver of the lorry, who is arrayed as second accused in this
case. Before the trial Court, the said lorry was marked as M.O.20. In the
meantime, on 19.10.2003, PW5-Ramanath, who is the Senior Engineer
submitted the report stating that the wooden sleeper fitted in the railway
track in Km 506/11-12 was stolen away. In this regard, he issued the
certificate under Ex.P11. After obtaining the said certificate, PW1
examined the witnesses, recorded their statements and received the
certificate that the first accused herein running the sawmill.
(iv) In the meantime, the other accused (A3 to A7) were obtained
the Anticipatory bail and while at the time they were complying with the
condition imposed by the Court, they had given confession statement
before PW1 and the same has been recorded in the presence of PW4-
Karunanithi. The value of the property recovered during investigation is
Rs.3,000. Ultimately, after concluding the investigation, he filed the
final report under Ex.P5.
4.After taking cognizance, in order to find out the prima facie case,
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Crl.A(MD) No.56 of 2016
the learned trial Judge, recorded the chief examination from PW1 to
PW4. In turn, after satisfying with the prima facie case, the learned trial
Judge framed the charges under Section 3(a) of the Act. All the accused
denied the charges and opted for trial. Hence, in order to give
opportunity to the accused, all the witnesses who are all gave evidence
previous to framing the charge, were appeared before the trial Court for
the purpose of cross-examination. Additionally, three more witnesses
have been examined as PW5 to PW7 and 12 documents were exhibited
as Ex.P1 to Ex.P12, besides, 20 material objects (M.O.1 to M.O.20).
5.After recording the evidence as above from the prosecution
witnesses in respect to the incriminating materials available from the
evidences given by the prosecution witnesses, all the accused were
examined under Section 313 Cr.P.C, wherein they denied the evidences
given by the prosecution witnesses as false. However, they did not
choose to examine any witness nor mark any documents on their side.
6.Having considered all the materials placed before him and on
considering the arguments advanced by the learned counsel appearing on
either side, the learned trial Judge came to the conclusion that the
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Crl.A(MD) No.56 of 2016
accused 1 to 4, 6 and 7 are guilty under Section 3(a) of the Act and
accordingly, they were convicted and sentenced to undergo Rigorous
Imprisonment for one year each and to pay a fine of Rs.1,000/-, in
default, to undergo Rigorous Imprisonment for three months each.
Challenging the said conviction and sentence, the respondents 1 and 2/
accused Nos.1 and 2 preferred an appeal in C.A.No.23 of 2011 on the file
of learned Sessions Judge, Sivagangai. By judgment dated 30.10.2014,
the learned Sessions Judge, Sivagangai, allowed the appeal and setting
aside the conviction and sentence passed by the trial Court. Challenging
the said judgment, the appellant/complainant is before this Court praying
to set aside the order of acquittal.
7.The learned Government Advocate (crl.side) appearing for the
appellant would contend that the First Appellate Court while at the time
of allowing the appeal came to the conclusion that Section 10 of the Act
has not been followed and therefore, the respondents 1 and 2 are entitled
the relief of acquittal. He would further submit that in the judgment
rendered by the trial Court in respect to following the Section 10 of the
said Act in paragraph Nos.20 to 22 observed that the search warrant has
been issued on 20.10.2003 in M.P.No.5388 of 2003 and therefore, the
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Crl.A(MD) No.56 of 2016
non-filing of the search warrant could not be considered as a lapse on the
part of the prosecution. In this regard, the First Appellate Court, without
considering the said aspect in perspective manner, allowed the appeal
which is erroneous in law. According to him, the conviction and
sentence awarded by the trial Court has to be restored.
8.Per contra, the learned counsel for the respondents would
contend that in view of the Act, after getting information, the prosecution
authorities concerned should file an application before the Jurisdictional
Magistrate and only after obtaining the search warrant, they should
conduct the search and prepare the search list. But here it is the case, the
said procedure has not been followed and thereby, being the reason that
the mandatory provision is violated, it is not necessary for this Court to
restore the conviction and sentence.
9.I have considered the rival submissions made by the learned
counsel appearing on either side.
10.Admittedly, before the trial Court, the copy of the application
filed for issuing the search warrant and the copy of the search warrant
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Crl.A(MD) No.56 of 2016
issued by the Jurisdictional Magistrate were not marked as exhibit. In
this occasion, it is necessary to see Section 10 of the Act, which reads as
follows:-
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 authorise 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.
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Crl.A(MD) No.56 of 2016
11.The said Section is clear and narrow that after getting
information or otherwise, the officer has reason to believe that any place
is used for the deposit or sale of railway property, he shall make an
application to the Magistrate for issuing the search warrant. In this
regard, during the time of cross examination, before PW1 who is the
Officer alleged to obtain the search warrant and conduct the search, it
was suggested by the accused that there is no application has been filed
to obtain the search warrant. Therefore, after suggesting as above, it is
for the prosecution to call the records pertain to the search warrant and
mark the same as exhibit. But, here it is the case, even after suggesting
as above on the side of the accused, no steps have been taken by the
prosecution to show only after complying Section 10 of the Act, PW1
obtained the search warrant and upon the search warrant, search was
proceeded in A1's Shop.
12.Therefore, the said act committed by the prosecution agency is
nothing, but the prosecution agency, before the trial Court, had proceeded
the trial in lethargic manner. Only on seeing the copy of the application
filed before the Magistrate and on seeing the order passed on that
application, we can conclude that PW1 filed the application for issuing
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Crl.A(MD) No.56 of 2016
search warrant in respect to the shop which belongs to A-1. Here it is
the case, without any reason, the said application filed by PW1 has not
found place in the case records. Further, the same has not been
exhibited. Therefore, the non-production of the copy of the application,
which was filed for issuance of search warrant and also the non-
production of the search warrant issued to the appellant, creates a doubt
whether the alleged application has been filed in respect to the petition
mentioned premise or not. In the said circumstances, I am of the
considered opinion that the appellant herein has not approached the trial
Court with clean hands and also the same amounts to non-proving of his
case.
13.In view of the above discussions, this Criminal Appeal is
dismissed by confirming the judgment dated 30.10.2014 made in
C.A.No.23 of 2011 on the file of the learned Sessions Judge, Sivagangai.
03.09.2021
Index : Yes/No
Internet : Yes/No
cp
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Crl.A(MD) No.56 of 2016
To:-
1.The Sessions Judge, Sivagangai.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
3.The Section Officer,
Criminal Section Records,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A(MD) No.56 of 2016
R.PONGIAPPAN,J.
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Crl.A (MD)No.56 of 2016
03.09.2021
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