Andhra Pradesh High Court - Amravati
Syed Shajahan, Kadapa Dt., vs The State Of Ap. Rep Pp And 7 Otrs., on 5 November, 2021
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CRIMINAL REVISION CASE No.1003 of 2015
ORDER:
This criminal revision case is filed under Section 397 & 401 of Code of Criminal Procedure, 1973 (for short ―Cr.P.C‖) assailing the judgment dated.16.09.2014 in Criminal Appeal No.19 of 2014 on the file of VI Additional Sessions Judge, Gooty, allowing the appeal in part, confirming the conviction recorded against petitioner/A-4 in C.C.No.134 of 2012 on the file of Special Judicial Magistrate of First Class for Railways, Guntakal for the offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (for short "RPUP Act") and altering the sentence imposed against him to undergo simple imprisonment for one year and to pay fine of Rs.5,000/- in default to undergo SI for 3 months to that of fine of Rs.5,000/- only.
2. The case of the prosecution is that on 19.02.2012 at about 16:30 hours, the complainant along with his staff had apprehended A-1 near station board, Gangayapalli Railway Station when he was carrying one sickle. On enquiry A-1 stated that he is doing wood business and purchased some babool trees at Gangayappli railway station yard behind the station building from A.2 and A.3 for Rs.5,500/- and paid Rs.3,400/- as advance to them and he already had cut the said babool trees about 11 tones and taken to his home by one tractor bearing No.AP04 W 7883 by engaging labourers, who are A.6 to A.10 for cutting and loading. Further, A.1 stated that out of 11 tones of 2 babool trees, he sold out 10 tones to some unknown persons and one ton of babool tree pieces are in front of his house and A.1 had voluntarily produced cash of Rs.13,600/- towards sale proceeds of 8 tones and remaining 2 tones amount of Rs.3,400/- was already paid to A.2 and A.3 and later A.1 identified A.2 & A.3 at Kamalapuram Adda Road and they accepted their version and they paid Rs.700/- each voluntarily and later on the same day all of them proceeded to APSRTC Bus stand, Kadapa, where A.2 and A.3 identified A.4 who in turn admitted that he received cash of Rs.2,000/- from A.2 & A.3 being sale proceeds of babool trees and produced the said cash and on 25.03.2012 complainant along with staff, noticed crime tractor bearing no. AP 04 W 7882 which is involved in this crime and later the complainant seized the said tractor. After completion of investigation, charge sheet is filed.
3. On appearance, charges under Section 3(a) of RPUP Act was framed, read over and explained to the accused, to which the accused pleaded not guilty and claimed to be tried.
4. To substantiate its case, prosecution examined P.Ws.1 to 7 and got marked Exs.P-1 to P-56 and M.Os.1 and 2. After closure of prosecution evidence, accused were examined under Section 313 Cr.P.C. with regard to incriminating material available against them, in the evidence of the prosecution witnesses, to which they denied. No oral evidence or documentary was adduced on behalf of the accused. 3
5. Relying upon the evidence let in by prosecution, the trial Court convicted the accused for the charge referred to above. Challenging the same, the petitioner/A-4 preferred Crl.A.No.19 of 2014 on the file of VI Additional Sessions Judge, Gooty and the same was partly allowed on 16.09.2014 confirming the conviction and altering the sentence awarded by the trial Court, as indicated above. Challenging the same, present appeal has been filed.
6. Heard Sri G.Venkata Reddy, learned counsel for petitioner and the learned Assistant Public Prosecutor for respondent- State.
7. Learned counsel for the petitioner submits that taking cognizance of offence under Section 3(a) of RPUP Act and framing the charge under said offence cannot be sustained, as the Amendment Act, 2012 has come to force from 15.08.2012 whereas the alleged offence took place on 19.02.2012. He submits that property referred in the complaint is not a Railway Property and there is no proof of evidence produced before the Court to establish that the money seized is sale proceeds of Railway Property as defined in clause 2(d) of RPUP Act, as there were no marks of the Railways on any of the seized articles. He submits that the Courts below committed irregularity in appreciating the evidence brought on record and the conviction and sentence is based only on extra-judicial confessions even though same were not supported by any independent witnesses. 4
8. Learned counsel for the petitioner submits that the Courts below erroneously convicted and sentenced the petitioner merely basing on confessional statements even though same were recorded contrary to Clause 14 and 14(1) of the procedure required to be followed for conducting enquiries into offences under the RPUP Act. He submits that search conducted by the investigating officer is contrary to section 10 of RPUP Act as an Officer of the RPF cannot enter, search and effect seizure of any property without a search warrant from a Magistrate. He further submits that much weight cannot be given to the evidence of P.W.7, investigating officer, when the same is not supported by the other independent witnesses.
9. Per contra, learned Assistant Public Prosecutor submits that the prosecution successfully established the guilt of the accused beyond all reasonable doubt by examining P.W.s.1 to 7 and exhibiting Exs.P-1 toP-56 and M.O.s.1 and 2 and there is no illegality or irregularity in the conviction and sentence imposed against the petitioner, which warrants interference of this Court.
10. Now the point that fell for consideration is -
Whether the petitioner/A-4 has made out any ground to interfere with the conviction and sentence imposed against him?
11. The jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial court or the inferior 5 court, as the case may be. Though the section does not specifically use the expression ‗prevent abuse of process of any court or otherwise to secure the ends of justice', the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non- compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily.
12. Now it has to be seen whether there is any illegality or irregularity committed by the Courts below in appreciating the evidence on record. On careful scrutiny of evidence on record, it is evident that P.Ws.3, 4 and 6 who are independent witnesses did not support the case of prosecution and they were declared as hostile. Now the evidence of P.Ws.1, 5 and 7, who are official witnesses remains to be considered.
13. P.W.1 the then Sub-Inspector of Police, R.P.F, Kadapa categorically deposed about the apprehension of accused and seizure of babool tree pieces under the cover of mediators report. He further deposed about registration of crime and remitting the sale proceeds of Rs.17,000/- at Railway Booking Office, Kadapa. In his cross examination, P.W.1 deposed that he prepared the mahajarnama in English. He further stated that A-1 to A-3 and 6 the mediators i.e. P.Ws.2 and 3 do not know English. He also stated that he does not know Telugu both speaking and writing.
14. The evidence of P.W.5, who is as Section Engineer, Kadapa is with regard to observing some stems after cutting babool trees on the back side of Gangayapalli Railway Station and thereafter on the request of police, he noticed branches of thorny trees and found that the stems and the branches are in similar manner and he attested the scene observation report. In his cross examination, he deposed that now and then they remove thorny bushes on either side of the track for free movement trains and they also remove throny bushes in all station premises to avoid inconvenience to passengers by engaging labours.
15. P.W.7, working as RPF constable, Kadapa deposed about the investigation conducted by Sub Inspector of Police, arrest of accused, recording the confessional statement of accused and seizure of material objects. In his cross examination, P.W.7 deposed that they did not call the local inhabitants of the house of A.1 to act as mediators and one mediator is from Kadapa and another mediator from Gangayapalli. He deposed that distance between Gangayapallli and Kadapa about 29 KMs and they did not issue any written notices to the persons who acted as mediators they did not prepare any scene observation report at the scene of offence. He further deposed that investigating officer did not enquire in his presence whether the trees cut off belongs to Railway and he does not know whether A.4 permitted A.1 by rating to cutoff the firewood trees.
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16. It is appropriate to refer to Section 3(a) of RPUP Act, which reads thus:
―3. Penalty for theft, dishonest misappropriation or unlawful possession of railway property-- Whoever commits theft, or dishonestly misappropriates or 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.‖
17. While appreciating the essential requirements for proving the offence under Section 3 of RPUP Act, the Hon'ble Supreme Court in State Of Maharashtra Vs. Vishwanath Tukuram Umale & Ors1, held thus:
(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.
18. The Hon'ble Supreme Court in a judgment in between Balkishan A. Devidayal Vs. State of Maharastra2, held that a confession made by an accused before the R.P.F. Officer in the 1 1979 CrlLJ 1193 SC 2 AIR 1982 SC 379 8 presence of mediators is inadmissible in evidence as the R.P.F personnel are not police officers within the meaning of Section 25 of the Indian Evidence Act. Hence, the confession made in front of the R.P.F Officer in the presence of the witnesses is held to be inadmissible.
19. The first thing to be determined in this case is that whether the seized materials are railway property or not. Section 2(d) of the RPUP Act defines ―Railway property‖ includes any goods, money or valuable security or animal, belonging to, or in the charge or possession of a railway administration. For determining the same, the only evidence of P.Ws.1, 5 and 7 is available in record. But none of them have produced any registers maintained by the Railway Department to show that the subject property belongs to the Railway Property. However they have stated that the subject property of babool trees which were in the premises of Railway department were cut down. Further P.W.5 stated that now and then they used to remove thorny bushes on either side of the track and also in the station premises to avoid inconvenience to passengers by engaging labours. P.W.5 further stated in his cross examination that thorny trees are grown on their own and neither they are planted nor raised by anybody and they did not maintain any stock registers pertains to thorny trees and generally they conduct clean and green programme to remove thorny trees as per the instruction of the higher officials. So on careful scrutiny of the evidence of P.Ws.1, 5 and 7, it can be safely held that they do not maintain any record with regard to thorny trees. It is also 9 clear from the evidence of P.Ws.1 and 5 that both of them failed to depose about the presence of other when they conducted scene observation report, which gives rise to a doubt about preparation of scene observation report and both the Courts below failed to observe the said omission. The Courts below failed to notice the glaring omissions and contradictions in the evidence of P.Ws.1 and 5.
20. Coming to the evidence of P.W.7, he has stated in his cross examination that they did not call the local inhabitants of the house of A.1 to act as mediators. One mediator is from Kadapa and another mediator is from Gangayapalli, the distance between Gangayapallli and Kadapa about 29 KMs, they did not issue any written notices to the persons who acted as mediators, they did not prepare any scene observation report at the scene of offence and the investigating officer did not enquire about whether the cut off trees belong to Railway in his presence and he does not know whether A.4 permitted A.1 by rating to cutoff the firewood trees. Nothing incriminating is there in the evidence of P.W.7 to establish the guilt of the accused.
21. In the light of glaring inconsistencies and contradictions it is not safe to place reliance on the evidence of P.Ws.1, 5 and 7 to hold that the prosecution bring home the guilt of the accused beyond all reasonable doubt. Further, in view of the inconsistent evidence, Ex.P.21 certificate issued by P.W.5 to say that babool tree pieces seized in the house of A.1 are similar to that of the 10 babool tree pieces found at the scene of offence cannot be believed.
22. Secondly, it has to be seen whether the petitioner was found in possession of the railway property. For determining the same, again the only evidence of P.Ws.1, 5 and 7 is available. Admittedly the property of babool trees are not seized either from the possession of petitioner or from the premises belong to the petitioner, but the case of prosecution is that A.2 & A.3 made confessional statements before P.W.1 in the presence of P.Ws.2 and 3 that they sold the subject property of babool trees with the permission of petitioner for Rs.5,500/- to A.1 and A.1 paid Rs.3,400/- from which the A.2 & A.3 kept Rs.700/- each and paid Rs.2,000/- to petitioner. Further P.W.1 seized Rs.700/- each from A.2 & A.3 and Rs.2,000/- from petitioner under the cover of Exs.P2 and Ex.P3 Panchanama and the prosecution claimed that the said seized amounts derived from the sale proceeds of the babool trees. However, except the confession of A.2 and A.3 there is no corroborative evidence to substantiate the same as the independent witnesses i.e. P.Ws.2 and 3 did not support the case of the prosecution and they were declared as hostile. Further, it is the case of petitioner that their statements were obtained by coercion while they were in the custody of RPF Officers and same is also observed by the trial Court in its Judgment, but it has failed to give any weight to the same. Since the independent witnesses did not support the case of the prosecution and it is the case of the petitioner that confessional statements were obtained by coercion when they 11 were in the custody of RPF officers, the same cannot be basis to hold that the amount of Rs.2,000/- which was seized from the petitioner is derived out of sale proceeds of babool trees, which is the railway property and it can be reasonably suspected of having been stolen or unlawfully obtained.
23. On careful scrutiny of evidence on record, it is clear that P.Ws.1, 5 and 7 are the Railway Protection Force officials and not independent witnesses. Moreover, P.W.1 has not followed procedure contemplated under the RPUP Act, while recording the confessional statements. Hence, this Court is of the view that there is force in the contention of learned counsel for petitioner.
24. In this regard it would be advantageous to go through the provisions regarding the enquiry into offences under RPUP Act, whereunder, procedure contemplated under Clauses 14 and 14(1) has to be followed for conducting enquiries into offences under the Railway Property (Unlawful Possession) Act, which reads thus:
―14. The Enquiry Officer shall then examine orally (interrogate) the person so summoned, concerning the facts and circumstances of the case and record any statement made to him by such person, which will form a part of the case record.
14(i) If the accused wants to make a confessional statement, the same should be recorded in the presence of two respectable and independent witnesses who should also be required to affix their signatures thereon. He should also be produced before a Magistrate of competent jurisdiction and the confession shall be recorded by such Magistrate as 12 required by the provisions of the Code of Criminal Procedure, 1973 (Section 164 and 281).‖
25. A bare reading of above referred Clauses, it is clear that the Enquiry Officer is required to interrogate the accused with the facts and circumstances of the case and then record the statement made by the accused. Similarly, if the accused wants to make a confessional statement, it should be recorded in the presence of two respectable and independent witnesses, who should also be required to affix their signatures thereon. The accused should be produced before the Magistrate of competent jurisdiction and the confession should be recorded by such Magistrate, as required by the provisions of Sections 164 and 281 of the Code of Criminal Procedure.
26. In the instant case, even assuming that Railway Protection Force authority has recorded the confessional statement of the accused, the same not been recorded as contemplated under the Clauses 14 and 14(1) of RPUP Act. Both the Courts below failed to look into the provisions in its proper perspective and thereby rendered the conviction and sentence against the petitioner erroneously.
27. Learned counsel for petitioner has placed reliance upon the judgment of Aurangabad High Court in Criminal Appeal No.362 of 2000 (The State of Maharashtra through Chief Security Commissioner, Secundarabad v. Balaji S/o Manikrao Jadhav and others) and connected matters, decided on 11-01-2016 to substantiate his contention. Wherein the confessional statement 13 of accused was disbelieved as the Clauses 14 and 14(1) were not followed by the enquiry authority.
28. As far as search and seizure of property is concerned, P.W.1 conducted the search and seized the property contrary to Section 10 of RPUP Act. It is apposite to refer to Section 10 of RPUP Act, which reads thus:
Section 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 authorize 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.
29. From the above provision, it is clear that the RPF officer, who wants to conduct search, may have to obtain search warrant. In the present case also P.W.1 without obtaining any search warrant, conducted the search and seized the property 14 and it is not even the case of the prosecution that they could not obtain the search warrant. Further apart from the bare testimony of PW-1, Pw.7 absolutely there is no iota of evidence on record and the panchas (PW-2, PW-3, PW-4 And PW-6) who were examined on this aspect have not supported the case of the prosecution and they were declared hostile and even on this count also the prosecution fails to follow the procedure contemplated under the Act and failed to prove their case beyond reasonable doubt.
30. In the instance case, it is not disputed that the Railway Protection Force officer was entitled to make an enquiry under the RPUP Act and the officer under the said Act is not a Police officer for the purposes of Section 25 of the Indian Evidence Act and the confessional statement recorded by him is inadmissible in evidence. Further, confessional statements are not supported by any independent witnesses.
31. In the above facts and circumstances of the case, this Court is of the view that, the Courts below failed to appreciate the evidence on record in right perspective and erroneously convicted the petitioner/A.4. Hence, the conviction and sentence passed against the petitioner/A-4 is liable to be set aside.
32. In the result, the criminal revision case is allowed and conviction and sentence passed in Crl.A.No.19 of 2014 dated 16.09.2014 on the file of VI Additional Sessions Judge, Gooty confirming the conviction and modifying the sentence awarded in C.C.No.134 of 2012 dated 13.02.2014 on the file of Special 15 Judicial Magistrate of First Class for Railways, Guntakal is set aside. Fine amount paid the petitioner/A-4 shall be returned to him after expiry of appeal time.
As a sequel, all the pending miscellaneous petitions, shall stand closed.
___________________________ LALITHA KANNEGANTI, J 5th November, 2021 PVD 16 THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI Allowed CRIMINAL REVISION CASE No.1003 of 2015 5th November, 2021 PVD