Inspector Railway Protection Force, Durgapur, Eastern Railway, Burdwan @APPELLANT@Hash Sk. Azijul & Ors

Shivakant Prasad, J. Â

This appeal is directed against the judgment and order of acquittal dated 24th May, 2012 passed by the Additional Chief Judicial Magistrate, Durgapur

in CR. No. 262 of 2004 arising out of R.P.F. Post, Durgapur Case No. 10 of 2004 acquitting the accused persons of the charge under Section 3(a) of

the R.P (UP) Act.

Shorn of unnecessary details, the prosecution case is that on 19.6.2004 after getting source information regarding the disposal of stolen railway signal

transformer by some miscreants, the RPF Personnel under the supervision of Shri M. Angaria RPF Personnel of Durgapur Post conducted raid on

ambush near K M No. 127 on the railway track situated in between Galsi and Khana Railway station. They started conducting the raid from 3.00

A.M. in the night. While they were on prowl on ambush at about 4.00 A.M. raiding party noticed that three persons were coming from East to West

direction by the South side of the railway track, carrying something in their hands. Their movements while carrying the things in their hands appeared

to be suspicious and when the accused persons came nearer to the ambushing RPF Personnel, the RPF Personnel immediately intercepted them who

started fleeing away but after hot chase and pursuit, they could apprehend only one accused with one bag in his possession. The other two accused

persons managed to flee away from the spot. But they, while fleeing away from the spot, dropped behind their each one’s bag. On search and

seizure from the 3 bags one from the possession of the apprehended accused and other 2 each from the fleeing away two accused persons, each bag

was found containing 2 nos. of signal transformers totalling to 6 nos. of signalling transformers.

The apprehended accused disclosed his name and identity as Azijul Sk. and he confessed that they were all total three persons and they had stolen

said railway signalling transformers three days ago after breaking open the iron box where they were installed and they kept them concealed in the

bushes for onward carrying them for disposal on sale to any feriwala. He also disclosed the names of the other two accused persons namely, Lokai

and one Farin. The above items were seized by the RPF Personnel under Seizure List. The instant case was registered and the Inquiry Officer after

completion of inquiry into the case, submitted prosecution report under Section 3 (a) RP (UP) Act, 1966 against three accused persons namely against

(1) Sk Azijul, (2) Lokai and (3) Farin appellants herein.

Prosecution witnesses were examined on oath before charge and on consideration of evidence of the charge and the materials on record, Trial

Magistrate framed charge punishable under Section 3 (a) RP (UP) Act, 1966 against the appellants who abjured the guilt and claimed to be tried. It is

submitted by learned Advocate for the appellant that the learned Magistrate committed an error in law and in fact while dismissing the complaint on

the minor discrepancies in the evidence of the prosecution witnesses on trivial points. It is also submitted that the learned Magistrate committed an

error in demanding independent witness at the time of raid and seizure of the materials at 04.00 hours on 19.6.2004 on the railway track and so the

Magistrate committed the error in law and in fact.

It is argued that learned Magistrate has misconstrued the provision of Section 3(a) of the Railway Protection (Unlawful Possession) Act, 1966 for not

having considered the seized articles as the railway property proved by the expert. It may be noted that genesis of the case starts from section 6 of

the Railway Property (Unlawful Possession) Act, 1966 (in short “the Actâ€) which authorizes any superior officer or member of the Force to

arrest any person who has been accused in an offence punishable under section 3(a) of the Act providing penalty for unlawful possession of railway

properties where a reasonable suspicion existed of having been so concerned without an order from the Magistrate and without a warrant.

It is evident from the provisions of Section 6,7,8 of the Act 1966 that power of inquiry is vested with the officer of the Force, although he is not an

officer-in- charge of Police Station as envisaged by Section 173 of the Code of Criminal Procedure as held in case of Balakishan A. Devidayal Vs.

State of Maharashtra 1980 (4) SCC 600. In this particular case the moot contention by the learned Advocate for the respondents is that seizure has

not been properly made in respect of the articles in question because no independent witness joined the search and seizure. It appears form the seizure

list exhibit 1 that articles being one poly bag containing two nos. Railway signalling transformer seized from the possession of Sk. Azijul @ Ahizul.

One no. poly bag containing two nos. Railway signalling transformer seized which was left behind by Lokai and one no. poly bag containing two nos.

Railway signalling transformer were seized which was left behind by Farin and the witnesses PW 1 , PW 2 and PW 9 are the witnesses to the said

seizure list. Admittedly PW 1 was S.I of RPF post Howrah, PW 2 was S.I. of RPF posted at Panagarh and PW 9 was S.I. of RPF Durgapur. So,

indubitably RPF personnel are the witnesses to the seizure of railway articles and not the local witnesses.

Learned Advocate for the respondents relies on a decision in case of The State/Railway Protection Force Vs. Raju reported in 2014 Supreme (Del)

398 to support his contention by placing reliance on the observation in paragraph 26 to argue that since public witnesses have not joined in the seizure

list at the time of apprehension of the accused, seizure list cannot be relied. It is apt to reproduce the said observation thus-

“26. In many of the cases, it may not be possible for the RPF to associate public witnesses at the time of apprehension of the accused, given the

hour of the day when such arrest takes place. Nevertheless, there must be contemporaneous entries made in the records maintained by the RPF to

indicate that an attempt was made to associate public witnesses. In other words, the requirement of associating public witnesses must not be treated

as a mere formality. It must not be presumed by the RPF in very case that the requirement can be dispensed with.â€​

In the cited case the accused was apprehended near Maszid with possession of SAB worth Rs. 8000/- being the Railway property but failed to give

any proper explanation for such possession. The fact situation in the instant case is quite distinguishable in as much as the accused persons in the

present case were apprehended at 04.00 hours about 5 meter south side from up relief line near KM Pole No. 127/13 in between Galsi and Khana

Railway Station which is evident from the sketch map of the place of occurrence exhibit 5. So obviously one accused namely, Azijul @ Ahizul was

apprehended and arrested with possession of Railway property and also the articles were seized under the seizure list which were left on the track

while other two accused persons managed to flee away from the spot. These articles were examined by Rabindra Nath Mondal PW 6 who has

proved the expert opinion that 6 nos. of Railway signalling transformer which are in intact and serviceable condition are Railway properties not

available and auctionable in open market and exclusively used in Railway signalling system.

Learned Advocate for the appellant referred to the decision in State of Maharashtra Vs. Vishwanath Tukaram Umale reported in AIR 1979 SC 1825

wherein it has been held that to substantiate charge under Section 3(a) of RPUP Act, prosecution is required to prove the following ingredients:

“(i) the property in question should be railway property.

(ii) it should reasonably be 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.â€​

On the first ingredient, indubitably, the property in question is railway property. As regards the second ingredients, the respondents were reasonably

suspected of having stolen and obtained in total 6 nos. of Railway signalling transformer which fact is evident from the seizure list as well as the

confessional statement exhibit 6 of accused respondents herein who in clear crystal term made confession that he along with his two associates

namely, Lokai and Farin had committed theft of Railway cable in the sections between Khana link and Paraj and stole them and were disposed off to

the feriwala by his senior Lokai and three/four days back, he along with the said two associates had stolen 6 nos. of Railway materials from box by

breaking open the same situated by the South of Railway line in between Khana and Galsi and situation being found not favourable they had kept

concealed the same in the bushes on the south side of Railway line and finding favourable situation, they after taking materials kept in three poly bags

two in each bag and were proceeding toward Galsi village to dispose of the same. The said two other accused Lokai and Farin also made such

statements Exhibit 6/1, 6/2 which corroborate the prosecution case. The aforesaid statements have not been properly analysed by the learned

Magistrate who having ignored the material evidence on the record has committed an error of facts and in law by acquitting the accused persons.

It is evident from the evidence of Deo Nath, P.W.1 that he has testified the fact of the prosecution case that while he was posted at Durgapur RPF

Post on 19.6.2004, on the basis of a source information he along with Inspector M. Angari, S.I. A. Kumar, S.I. M.K. Tudu and other staff had been to

K M No. 127 in between Galsi and Khana railway station and when they were lying in ambush, he noticed 3 persons coming from Eastern South to

West with something heavy on their heads. They concealed themselves inside the bushes and subsequently they apprehended one accused but 2

persons fled away. The accused who was apprehended and arrested disclosed his name as Azijul and also disclosed the names of other two persons

as Farin and Lokai who had fled away on seeing them. Thereafter articles under seizure list exhibit-1. Ashoke Kr. Singh, P.W.2 S.I. of RPF Panagarh

O.P., Madhu Angaria P.W. 3 Inspector of RPF Durgapur RPF Post, Ajay Kumar P.W. 5 S.I. of RPF Durgapur Post, Bijoy Kumar Singh, P.W.7

constable Panagarh RPF Post, Jitraj Paswan, P.W.8 Head Constable Panagarh Out Post RPF on that date of occurrence along with M.K. Tudu P.W.

9 S.I. RPF Post Durgapur, and other staff moved towards K.M. No. 127 in between Galsi and Khana Link from 03.00 hrs. S.I. Manoj Kumar Tudu

and other RPF lying ambush had noticed at 4.00 hours, three persons coming from East to West something heavy on their heads in bag. They

apprehended one of them and other 2 persons managed to flee away leaving the two bags. The accused disclosed his name Azijul and that of the

persons who fled away namely, Farin and Lokai. They recovered 2 nos. of signalling transformer from Azijul and on search they found another 2 bags

containing transformers each. Accused person failed to produce any valid paper. P.W. 2 proved the written complaint and his endorsement thereon

marked exhibit 2 and 2/1.

Tushar Kanti Bose, P.W.-4 Section Engineer Signalling Department posted at Panagarh submitted a theft report of 6 nos. Signalling transformer from

K.M. No. 127/13 in between Galsi and Khana on16.6.04 and proved the said report written exhibit 3. Rabindranath Mondal, P.W.6 proved the fact

that as per requisition of S.I. L.P. Sahani, he had been to Durgapur RPF Post and conducted examination of Signal Transformer 6 pcs. being the

seized Material exhibit II and proved his expert report exhibit-4 and opined that those were railway signalling transformer not auctionable, not available

in open market and in serviceable condition.

According to L.P. Sahani, P.W. 10 S.I. RPF Out Post Panagarh testified the fact that Inspector in Charge M. Angaria endorded the case to him for

enquiry. During enquiry he visited the P.O., prepared the rough sketch map of P.O. exhibit 5 and recorded the confessional statement of 3 accused

persons namely Azijul Sk. Lokai and Farin being the statements exhibit 6, 6/1 and 6/2 respectively. He also recorded the statement of one raiding party

members and got the seized property examined by Railway expert and thereafter he submitted P.R. against all the 3 accused persons for the offence

under Section 3(a) RP (UP) Act and proved the said prosecution report as exhibit-7.

Learned Advocate for the respondents submitted that since no independent witness has joined the search and seizure of the articles, it would be

unsafe to convict the respondents on the basis of the said confessional statements and the seizure list. My attention is drawn to Rule 222.1 of RPF

Rules 1987 to argue that in all the cases of crime affecting railway property, the same has to be entered in the “localised†crime register or in the

“unlocalised†crime register and also draws my attention to Rule 223 dealing with seizures and recoveries of railway property. All seizures or

recoveries of railway property are to be entered in Malkhana register and an entry to that effect is to be made in the concerned crime register after it

is classified as â€" (a) pertaining to cases in which theft or shortage memo has been issued or received; and (b) where no such memo has been issued

or received. Accordingly it is submitted that the procedures outlined under the RPF Rules 1987, regarding entries to be made in the crime registers,

both as regards the theft of railway property as well as the apprehension of a suspect and recovery of the stolen railway property from him, are

mandatory which according to the respondents have not been followed in the given case.

I am unable to accept such argument advanced by learned Advocate for the respondents bearing in mind the principle laid in the decision in Balkishan

Devidayal (supra) that the statement made to an RPF officer will not be hit by Section 25 of the Evidence Act, 1872, and in Babu Lal v. State 1977

Crl. L.J. 2008 (All), holding that the statements recorded by the officers of the RPF during the investigation do not attract the provisions of Section

162 Cr.P.C. and further decision in Chinna v. State, (1977) 2 Karn LJ 480, holding that the statements recorded by an officer of the RPF in the course

of inquiry can be read in evidence, and also in consideration of the finding of facts and evidence on record discussed herein above. Accordingly, I hold

that the prosecution has been able to substantiate the charge under Section 3(a) of the RP (UP) Act, 1966 beyond any reasonable doubt against the

accused persons, the respondents herein and find them guilty of the charge there under.

The respondents having been found guilty of the offence punishable under Section 3(a) of the RP (UP) Act, 1966 are convicted and sentenced to

suffer rigorous imprisonment for one year and to pay fine of Rs. 10,000/- each in default to simple imprisonment of one month because, the

respondents cannot be dealt with by any curative provision of law, that is say, under the provision of Probation of Offenders Act or under Section 360

of the Code of Criminal Procedure. However, pretrial detention undergone by the convicted respondents herein be set off under Section 428 of

Cr.P.C.

The respondents herein shall surrender before the learned Court below within sixty days from the date hereof to serve out the sentence in default the

learned Magistrate shall take all coercive measure for their surrender and to remand them to serve out the sentence. Let a copy of this judgment along

with the LCR be sent down to the learned Court below at once. The properties seized under seizure list shall stand confiscated to the Railway

Administration. Accordingly, the appeal is allowed. Urgent copies of this judgment be supplied to the respondents free of cost at once.