In Re: Pakkiri Sahib

M.A. Sathar Sayeed, J.—This Criminal Revision Petition has been filed against the Judgment in C.A, No. 475 of 1977 on the file of the Sessions Judge, North Arcot.

The accused was convicted under S. 3(a) of the Railway Property (Unlawful Possession) Act and sentenced to undergo R.I, for six months and to pay a fine of Rs. 25/- in default to undergo R.I. for one month, on the ground that on 7th September, 1976 at about 7 P.M. near the Railway Institute at Arakkonam, the accused was found in unlawful possession of a railway property, namely, axle brass without being unable to give a satisfactory account for his possession of the same.

The case of the prosecution is that on 6th September, 1976 at Arakkonam, P.W.5, Examiner of Railway Carriages noticed that an axle brass was found missing from the carriage SR.KC 26246. He sent a report to his authorities, the copy of which is marked as Ex.B7, On 7th September, 1976 at about 7 P.M. P.W.I, a constable attached to the Railway Protection Force along with two other constables attached to the Railway Protection Force was doing patrol duty near the Railway Institute. At that time he found the accused proceeding in that way riding on the cycle M.O.3. M.O.I, an old gunny bag was found tied to the carrier of the cycle. On suspicion, P.W.I and his companions stopped the accused and examined M.O.I which was found to contain M.0.2 axle brass belonging to the Railways. The accused could not give a satisfactory account of his possession of the same. So, P.W.I and his companions arrested the accused and seized M.Os. 1 to 3 under Ex.Pl attested by two private witnesses and produced him before P.W.6, the Sub-Inspector attached to the Railway Protection Force, Arakkonam along with M.Os 1 to 3. At about 8 P.M. on that day P.W.I questioned the accused and he gave a voluntary confession which was reduced to writing in Ex. P3 by P.W.I in the presence of P.W.6. On 18th September, 1976 P.W.2, Senior Examiner of Railway carriages examined M.O. axle brass and found that it contained the marks of railway property and that it belonged to the railways and it was not available in open market. Ex.P4 is the certificate issued by him. Later on, the Sub-Inspector of Police investigated the case and laid the charge sheet. When the accused was questioned under S. 313, Crl. P.C. he denied the allegations leveled against him. The learned Sub-Divisional Magistrate, on the evidence adduced by the prosecution and on going through the exhibits filed in this case found that the accused was the person who stole the railway property and he convicted him under S. 3(a) of the Railway Property (Unlawful Possession) Act, and sentenced him to undergo R.I. for 6 months and to pay a fine of Rs. 25/-.

Against that, the petitioner preferred an appeal in CIA. No. 475 of 1977, on the file of the Sessions Judge, North Arcor at Vellore. The learned Sessions Judge, after hearing the arguments of the counsel for the petitioner and the Public Prosecutor found that the prosecution has proved the case beyond reasonable doubt and therefore, confirmed the conviction and sentence imposed by the trial court and dismissed the appeal filed by the petitioner herein. It is against the judgment of the Sessions Court, Vellore, the petitioner herein has preferred the above Criminal Revision case. The counsel appearing for the petitioner contends that the Courts below have violated flagrantly the points of law. He argued before me that the confessional statement, Ex.P3, recorded. by P.W.I in the presence of P.W.6, is inadmissible under S. 25 of the Evidence Act. While the argument was going on, the learned Public Prosecutor has brought to my notice that the sentence imposed by the learned trial Judge and confirmed by the lower appellate Court are contrary to law, for, the statute, S. 3 of Central Act 29 of 1966, clearly enjoins upon the Court, that the sentence of imprisonment for the first offence is for a term which may extend to five years or with fine, and in the absence of special and adequate reasons to be mentioned in the judgment by the Court such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees. The Public Prosecutor contends that the courts below have flagrantly violated this aspect. The Public Prosecutor cannot at this stage contend this argument because the State has not preferred either an appeal or revision against the judgment of the Court below praying for enhancement of the sentence.

Let me now meet the point raised by the counsel for the petitioner. This point of confessional Statement was not argued before the Courts below. However, I permitted him to argue this point. His contention is that the confessional Statement recorded by P.W.6 is inadmissible under S. 25 of the Evidence Act. Learned Public Prosecutor has cited a decision in Ekambaram v. State of Tamil Nadu 1973 L.W (Crl) 26 wherein Somasundaram, J. has observed as follows :-

The test for determining whether an officer of the customs (or of Railway Protection Force) is deemed to be a police officer is whether he is invested with all the powers of a police officer, qua investigation of an offence, including the power to submit a report under S.173 of the Code of Criminal Procedure. The Officer exercising power to make an inquiry cannot submit a report under S. 173 of the Code, Therefore he is not a police Officer, with the result, the statement made before him, by a person who is arrested, is not covered by S. 25 of the Evidence Act.

Members of the Railway Protection Force are not Police Officers, because they are directed to forward the persons arrested to the nearest police station with out unnecessary delay

An Inquiry by this Officer, is not the same as an investigation by the police under the Criminal Procedure Code. They cannot file a charge sheet and they have to file only a complaint. The statements and confessions made to these officers during the course of inquiry would thus be admissible against the person.

Under such circumstances, it cannot be stated that the statement, Ex.P,3 recorded by P.W.6 can be said to be confessional Statement. The courts below have wrongly takes it as a voluntary confessional statement. It cannot be a voluntary statement, but it is only a statement given by the accused. Under the circumstances, the police officer can act on the statement given by the accused. Therefore, it cannot be contended by the petitioner herein, that it is only a voluntary confessional statement that has been recorded by P.W.6 and that it is not admissible in evidence. Law does not prevent confessional statements being given by the accused and nothing prevents the petitioner herein to make statement the police officer; and the courts on scrutinizing the evidence, not only the confessional statement, which is not in the real sense a confession and also looking into other evidence recorded and on the basis of such evidence, have come to conclusion that it is only the accused who has committed the offence. Therefore, the contention of the counsel appearing for the accused/petitioner that the confessional statement recorded by P.W.6 is not admissible under S. 25 of the Evidence Act, has no substance. No other point has been argued for the petitioner. I am of the view that there is no substance in the criminal revision case.

That apart, S. 3 of the Railway Property (Unlawful Possession) Act, 1966 (Central Act 29 of 1966) provides for penalty for unlawful possession of railway property, Ss.3 and 3(a) read as follows:-

Whoever Is found, or is proved to have been, in possession of any railway property reasonably (sic)ted of having been stolen as 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 sot be less than one thousand rupees.

In view of the specific previsions of the section enjoining the courts below, to impose the punishment of imprisonment for five years or with fine, without any special and adequate reasons being mentioned in the judgment, the courts below have imposed a sentence of R.I. on the petitioner for six months. The Courts below cannot pass such a sentence. The Courts below have lost sight of the tenor of the section. Since the offence was committed during 1976 and this revision petition is being disposed of in 1979, while dismissing the Criminal Revision petition, instead of sentencing the accused for R.I. for six months, ends of justice would be met by imposing a fine of Rs. 1,000/- on the petitioner for the offence for which he is charged. Time for payment of fine is 10 days from the date of receipt of this order. In default of payment of fine, the petitioner will undergo R.I. for one year. With this modification in the sentence, this Criminal revision case is dismissed.