Inspector, R.P.F, Rampurhat vs G. Hembram & Ors.

Shivakant Prasad, J. Â

The instant appeal is directed against the judgment dated 14th July, 2015 passed by the learned Judicial Magistrate, 2nd Court, Rampurhat, District-

Birbhum in CRR 159 of 2003 (T.R 160 of 2004). The appeal is at the instance of Inspector, Railway Protection Force, Rampurhat, Eastern Railway.

By the impugned judgment, the learned Magistrate held the accused persons not guilty to the offence punishable under Section 3(a) of the Railway

Protection (Unlawful Possession) Act, 1966 whereby and whereunder the accused persons were acquitted in terms of Section 248(1) of the Code of

Criminal Procedure and set at liberty.

The grounds taken on behalf of the appellant is that the learned Court below has erroneously interpreted the provision of Section 2(d) of the said Act

by ignoring the prosecution report and the confessional statement of the accused persons in the absence of any documentary evidence. It is contended

that learned Magistrate has misconstrued the provision of Section 3(a) of the Railway Protection (Unlawful Possession) Act, 1966 holding that the

prosecution has failed to prove the material exhihit-1, as not being the exclusive railway property though the railway expert has suggested in its report

exhibit-6 that highspeed diesel is exclusively used in railway. So the diesel under seizure cannot be said to be available in the open market.

The prosecution case in brief is that “in the night of 16/17-6-03 complainant IPF/RPH along with ASI/S.K Saha, and staff namely, C/9990 B.N.

Yadav, C/A592 K. Karmakar all of RPF/HWH.2 remained in secret watch at up fueling point/RPH from 02.40 hrs. At about 03.00 hrs. it was noticed

from a considerable distance that some unknown persons came with a plastic Jar and a plastic pipe and unloaded diesel oil from Engine No. WDG-

2/14771 standing on line no. 6 at up fueling point/RPH in connivance with Driver and Asstt. Driver on duty. Then Driver and Asstt. Driver handed

over the jar to the criminals. In the mean time they were challenged and surrounding from all sides and apprehended with the recovery of one plastic

jar containing about 45 liters of diesel oil while all the outsiders managed to escape leaving behind the loaded diesel jar on the spot. On being asked the

driver & Asstt.

Driver disclosed their name & address as (1) Gregory G. Hembram S/o Lt. Ijaek Hembram Diesel Driver HQ/RPH. Living in Rly Qtr. No. 78/A

Loco Colony, RPH, Permanent address Vill.+P.S.+Dist. Gudda, Jharkhant, (2) Binoy Kr. Singh (B.K. Singh), S/o Ujagar Singh Vill.-Majholi, P.S.

Bihia, Dist-Bhojpuri, Bihar. At present living at Rly. Qtr. No. 106/C Loco Bazar, Rampurhat. On further interrogation they stated that Amiya, Raja,

Kajal Sk. @ Kajla S/o Jabar Sk. of Vill- Math para, P.S. Rampurhat, accd. Bijla Sk. of Pakuria all of P.S. Rampurhat Dist-Birbhum, were present at

the spot for committing theft of diesel oil. It is reasonably suspected that the property was stolen or unlawfully obtained from the Railway Engine

which were seized at the spot in presence of the witnesses.

Again 5 liters of D/oil seized from the said engine no. 14771 WDG-2 in presence of F/C Recover & CIB/HWH-2 at the spot as sample. On the basis

of the above complaint, after usual investigation, the prosecution report was submitted against both the arrested accused persons and four absentees

accused persons for the offence punishable under Section 3(a) of R.P.U.P Act, 1966. In the course of investigation it has been found that driver, G.

Grogery Hembram, during his duty at about 02.40 hrs. took charge of the Engine No. 14771 WDG-2. After a while three or four outsiders came to the

spot with one plastic jar and demanded diesel from the Engine. At first said Hembram refused to give them diesel oil from the engine. He, after

discussion with Assistant Driver B.K. Singh, agreed to give diesel and opened the cover of the nozzle of said Engine and supplied about 45 liters of

diesel oil. As soon as the jar was loaded some RPF persons surrounded them but the accused persons, namely, Amiya, Raja, Kajal @ Kajla and Bijla,

all of Rampurhat fled away from the spot. Then one RPF officer seized the material from the spot but the concerned persons failed to give any

satisfactory reply for giving diesel oil to the criminals from the Engine. The driver G

Hembram confessed his guilt. The Assistant Driver Binay Kr. Singh in his statement confessed his guilt that during his duty period at about 02.40 hrs.

DC 771 UP arrived at up fueling point on line No. 6. He along with G. Grogery Hembram took the charge of the Engine. After a while three/four

persons (outsiders) with one plastic jar came to them and demanded diesel oil from the Engine. At first they refused to give diesel oil from the Engine.

But after some time they agreed to their proposal. Driver G. Hembram opened the cover of the nozzle of Engine No. 14771 WDG-2 and supplied 45

liters of diesel oil. When the jar was loaded they were handing over the jar to those unknown persons. Some RPF persons surrounded them and the

criminals namely, (i) Amiya, (ii) Raja, (iii) Kajal @ Kajla and (iv) Bijla, who were present at the spot but fled away. RPF apprehended them with the

diesel oil loaded in a jar.

At the outset learned Advocate for the respondents has challenged the maintainability of this criminal appeal contending that the appeal against an

order of acquittal can be preferred only before the Sessions Judge. It appears from the order dated January 19, 2016 that the appeal was admitted

under section 378(4) of the Code of Criminal Procedure. The subsequent order passed on September 08, 2016 reflects that this Court had erroneously

admitted the appeal without granting Special Leave to Appeal in terms of section 378(4) of the Code of Criminal Procedure and the said order was

recalled by admitting the appeal. Order dated August 31, 2016 reflects that the appeal has been filed at the behest of public servant which cannot be

treated as Government Appeal under sub-section (1) or (2) of section 378 of the Code of Criminal Procedure.

Relying on the reference to case of Subhas Chandra Vs. State (Delhi Administration) reported in 2013(2) SCC 17, appeal was numbered as CRA

instead of GA. In the above premises, I do not agree with learned advocate for the respondent who admitted that the appeal would be maintainable

before this Court. It is submitted 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. Section 7 of the Act provides that every person arrested under the Act, shall,

if arrest is made by a person other than the officer of the Force, he shall forward such person without delay to the nearest officer of the Force.

Section 8 of the Act provides for an inquiry to be made against the arrested person. The provision may be reproduced hereunder:-

“8(1) 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.

(2) For this purpose, the officer of the Force, may exercise the same powers and shall be 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 cognizable case. Provided that

(a) if the officer of the Force is of opinion that there is sufficientevidence or reasonable ground of suspicion against the accused person, he shall either

admit him to bail to appear before the Magistrate 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 sufficientevidence 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 required,

before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior.â€​

It is axiomatic from the aforesaid provisions that such power of inquiry has been bestowed upon 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. (See: Balakishan A. Devidayal Vs. State of Maharashtra

1980(4) SCC 600). Learned advocate for the respondents invites my attention to section 11 of the RP (UP) Act, 1966 vis-Ã -vis section 102(3) of the

Code of Criminal Procedure, which relates to power of Police Officer to seize certain properties and for the searches made.

Section 11 of the Act, 1966 provides that all searches and arrests made under this Act shall be carried out in accordance with the provisions of the

Code of Criminal Procedure, 1973 relating to searches and arrests. Section 102(3) of the Code provides that every Police Officer acting under sub-

section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the properties seized is such that it cannot be conveniently

transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the retention of the

property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his

executing bond undertaking to produce the property before the Court as and when required and to give effect to further orders of the Court as to the

disposal of the same.

Learned advocate by inviting my attention to the aforesaid provision urged that the seizure has not been properly made in respect of the materials in

question and pointed out that it is only the charge sheet containing 45 liters of high speed diesel stated to have been seized by the Railway Protection

Force Officials but the plastic pipe through which the diesel was siphoned out of the railway diesel engine was not seized and has not been proved

during trial. So non-production of the seized articles in Court is a lapse on the part of the prosecution. I am unable to agree with such submission

because the seizure list clearly reflects the seizure of jar containing 45 liters of diesel and also the plastic pipe with the help of which the diesel was

siphoned from the railway diesel engine. Learned advocate for the respondents further contended that the possession of the jar with the accused

driver and the assistant driver has not been mentioned in the complaint. Accordingly, it is submitted that the charge framed against respondents under

section 3(a) of the Act, 1966 is not permissible and prosecution case is not tenable in view of the evidence adduced during trial. I find that Ld.

Magistrate has not considered the confessional statements made by the respondents, namely, G. Hembram, driver and B.K. Singh, assistant driver of

the said engine recorded by Inquiring Officer during inquiry. Question may arise that whether conviction can be based on the confessional statement,

made by the accused persons.

This question has been well answered in the case of Balakishan (supra) in which case the first question for consideration was, whether an Inspector

of Railway Protection Force is a “police officer†and therefore any confessional statements made to him comes within the provision of section 25

of the Evidence Act which enjoined that no confession made to a police officer shall be proved as against a person accused of any offence. It has

been held that an officer of the Railway Protection Force 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 course of inquiry under section 8(1) of the Act, 1966

cannot be excluded from the evidence under the said section. It was observed that an officer of the Railway Protection Force conducting any inquiry

under section 8(1) of the Act, 1966 has not been vested with the powers of an officer-in-charge of a police station making an investigation under

chapter XIV of the Code of Criminal Procedure and that he has no power to file charge sheet before the Magistrate concerned under section 173 of

the Code.

It is settled principle of law that in case of an offence under RPUP Act, 1966, provision of Section 164 of the Code of Criminal Procedure relating to

recording of confessional statement has no application. Section 9 of the Act provides that a statement of the accused person so recorded under

Section 9 of the Act by the RPF Officers being non-police officers will not be barred by the provision of Section 25 of the Indian Evidence Act. The

Hon’ble Apex Court held that if a statement of an accused is recorded during the course of investigation under the Act of 1966, that itself can be

relied upon by the prosecution in order to establish the charge that the accused was in unlawful possession of the railway property.

There is no suggestion put to the witness that the accused persons namely, G. Hembram driver and B. K. Singh and Assistant Driver of the Engine

were forced to make statement during the inquiry. Therefore, confessional statement so made by them cannot be excluded from the evidence and the

learned Magistrate ought to have appreciated the statements so made by the accused persons but the Ld. Magistrate has simply ignored.

The complaint (Exhibit-5) was lodged by Sailendranath Dhar, IPF (PW-2) who was posted at Rampurhat as Inspector-in-Charge on 17th June, 2003

and as on the date of deposition on 22nd June, 2010, he was an Assistant Commandant of Railway Protection Special Force posted at Dhanbad.

According to him, he along with ASI, a staff of RPF Rampurhat, ASI CIB Howrah (II) R. K. Saha with a staff of CIB (II) conducted raid in the night

on 16th /17th June, 2003 and kept themselves in secret watch at Rampurhat station area from 02.40 hours of 17th June, 2003 and at about 03.00

hours, they noticed from a distance that four persons were coming from village area to line 6 of railway yard at up fueling point with one plastic jar

and plastic pipe who handed over the same to the driver of the engine bearing WDG-2/14771. They further noticed that two persons loaded something

into the plastic jar from the engine looking heavy in weight and handed over the same to the said outsiders. They apprehend the said driver and

assistant driver with the plastic jar loaded with diesel oil. They also recovered one plastic pipe and arrested both the persons namely, G. Hembram

driver and B. K. Singh, Assistant Driver of the said Engine but the said outsiders managed to escape leaving the loaded plastic jar at the spot. They

were identified as Raja, Amiya and others. P.W. 2 prepared a seizure list (Exhibit 1/1) in respect of plastic jar containing about 45 liters of diesel oil

and plastic pipe since the two persons failed to show any valid document and give any satisfactory reply for handing over diesel oil of about 45 liters to

the said outsiders. After seizure of said articles P.W. 2 submitted written complaint (Exhibit-5). P.W. 2 also proved the sample seizure list (Exhibit-4)

and the plastic jars containing 45 liters of diesel oil from the said engine and the plastic pipe as (Material Exhibit-I). During cross-examination certain

suggestive questions have been put to P.W.2 to impeach the credence of his evidence but in substance, the written complaint (Exhibit-5) finds

corroboration by its maker.

Swapan Kumar Saha deposed as P.W.1 who was ASI, RPF posted at Rampurhat and had accompanied P.W.2, Constable B. N. Yadav, K.

Karmakar of RPF Post Rampurhat and ASI, R. K. Saha, Head Constable, R. C. Prasad of RPF, CIB Howrah-II and corroborated evidence of

P.W.2. According to P.W.1 when they returned to the RPF post with said arrested persons, he recorded their statements proved as (Exhibit-1 and 2).

During cross-examination, P.W.1 has testified the fact that fuel-checking office is situated adjacent to the railway track. Learned advocate for the

respondents pointed out that none of the staff/officers of the said office has been cited as seizure list witness or even the witness for the prosecution

case. I do not agree with such contention because the personnel of fuel checking office has been examined in proof of the prosecution case.

P.W. 1 stated that accused persons had left the jar near the diesel engine, which was seized under the seizure list. It is argued that the jar was not

seized from the hands of the accused persons. Personal search memo was prepared but nothing was found from the possession of the accused

respondents. The complaint and the evidence on record clearly reveal that after the plastic jar was filled with 45 liters of diesel from the railway

engine by the driver and the assistant driver, it was handed over to 3-4 accused persons (outsiders) who left the same at the spot and managed to

escape there from.

The railway property has been defined under Section 2(d) of the RP(UP) Act, 1966 which includes any goods, money or valuable security or animal

belonging to, in the charge or possession of a railway administration. Generally it is misunderstood that the property having IR mark is only railway

property, but the fact remains that the railways do not have any registered trademark as IR. The property having no IR mark is also railway property.

In my view, even an article left in the railway compartment by a passenger when taken in possession of by the railway administration becomes the

railway property. The learned Judicial Magistrate was of the opinion that since diesel is available in the open market, diesel oil not being exclusive

railway property, the prosecution has failed to prove its case for charge under Section 3(a) of RP (UP) Act, 1966 and acquittal the accused persons.

I am of the view that the learned Magistrate has committed an error as there is no expression in the definition clause of Railway Property under

Section 2(d) of the said Act saying that the property has to be exclusively a railway property and in not considering the confessional statement of the

accused persons namely, G. Hembram the driver and B.K. Singh the assistant driver who have, in clear term, confessed of having loaded the plastic

jar with diesel oil from the Engine No. WDG-2/14771. It is well understood from the statement that four persons (outsiders) namely Amiya, Raja,

Kajal Sk. @ Kajla and Bijla Sk. had handed over to them the plastic jar to supply diesel from the engine. Though, at first they denied to provide diesel

from the said engine but they agreed to do so. Thereafter, George Hembram, driver opened the nozzle of the engine and siphoned out 45 liters of

railway diesel.

The expert Pabitra Kumar Roy (PW-4) who worked as A.C.M.T. was posted at Burdwan Diesel Shed in the same capacity. He testified the two jars

in Burdwan Laboratory and both jar contained diesel oil and opined that sample confirmed to 151460 â€" 2000 HSD oil in respect of the test and this

type of oil being used in railway. I am of the opinion that the learned Magistrate while coming to such finding and having ignored the confessional

statements of the accused persons erred in law and in fact by acquitting the accused persons on finding them not guilty. In order to prove the Material

Exhibit-I as the railway property the expert report Ext-6 has been proved by PW-4. Statement of the said two accused persons reflects that they

siphoned out HSD oil from the railway engine. PW-4 was working in the railway having service experience who can very well come to a conclusion

as an expert opinion whose report cannot be ignored simply on the basis of one line deposition that he could not say whether the diesel is available in

the open market or not. The place of occurrence is a railway yard where no outsider can sneak into. The drivers who made confessions to the RPF

Officer has not pleaded any ignorance and no suggestion has been put to the prosecution witnesses that RPF Officer and his team had ire against the

said accused persons. Defence has put a suggestion to Prabal Mukherjee, PW-5, Section Engineer (Loco) Railway at Rampurhat Loco Shed in

charge of fuel and crew members of Diesel Engine of Rampurhat Loco Shed that fuel checker has not submitted any report about shortage of diesel

in the diesel engine and he has also not received any requisition regarding fuel shortage from RPF and further that there is no way to extract diesel

from nozzle to Fire pin of diesel engine of railway. I am of the opinion that such suggestion is a mere defensive plea of the respondents because diesel

can very well be siphoned from the nozzle of the engine.

It would not be out of the context to take note of the Railway Property (Unlawful Possession) Amendment Act, 2012 whereby Section 3 of the Act,

1966 has been amended to include the penalty for theft, dishonest misappropriation or unlawful possession of railway property and for the purpose of

this Section, ‘theft’ and ‘dishonest misappropriation’ have same meanings as assigned to them respectively in Section 378 and Section

403 of Indian Penal Code.

Likewise, Section 4 of Act, 1966 has also been amended by Amendment Act, 2012 which provides for abetment, conspiracy or connivance at

offences and the words ""abet"" and ""conspire"" have same meanings as assigned to them respectively in sections 107 and 120A of the Indian Penal

Code. One may question as to whether the amendment of the year 2012 shall be applicable to the present case which was lodged in the year 2003,

long before the Amending Act, 2012. I am of the considered view that amending provisions are retrospective in nature and not applied prospectively if

otherwise not provided in the Amending Act.

Therefore, having regard to the evidences adduced by Swapan Kumar Saha P.W.-1, Sailendranath Dhar, P.W.2, Sri R.K. Sah, P.W.-3, Pabitra

Kumar Roy, P.W.-4, Prabal Mukherjee, P.W.-5, Ramesh Chandra Prasad, P.W.-6, Sabyasachi Mukherjee, P.W.-7, D.K. Pandey, P.W.-8 and the

confessional statements of Driver George Hembram and that of the Assistant Driver, B. K. Singh recorded on June 17, 2003 (Exhibits 1 and 2 ) and

the documentary evidences including Expert Report Exhibit- 6, I hold that the prosecution has been able to substantiate the charge under Section 3(a)

of the RP (UP) Act, 1966 beyond any shadow of reasonable doubt against the accused persons, the respondents herein.

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 75 days. Pretrial detention

undergone by the convicted persons respondents herein be set off under Section 428 of Cr.P.C. Let a copy of this judgment be sent down to the

learned Court below at once. 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 serve out the sentence. The properties

seized under seizure list shall stand confiscated to the State. Urgent copies of this judgment be supplied to the respondents free of cost at once.