Calcutta High Court (Appellete Side)
Inspector vs G. Hembram & Ors on 7 May, 2018
Author: Shivakant Prasad
Bench: Shivakant Prasad
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Present: The Hon'ble Justice Shivakant Prasad
CRA 112 of 2016
Inspector, R.P.F, Rampurhat
-Vs-
G. Hembram & Ors.
For the Appellant : Mr. Krishna Das Poddar
For the Respondent Nos. 1 to 4 : Mr. Pratik Kumar Bhattacharyya
Mr. M. Karmakar
Heard on : 02.5.2018
Judgment on : 07.5.2018
Shivakant Prasad, J.
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 high- speed 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 Act") 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-in-
charge 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 sufficient evidence 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 sufficient evidence 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."
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-in- charge 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-à-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 - 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.
(Shivakant Prasad, J.) CRA 112 of 2016 Later_____ 07.5.2018 p.b.
Ct. No. 33RIDER The learned counsel appearing on behalf of the respondents nos. 1 to 4 submits that a stay of operation of the order be granted for a period of 30 days.
Since I have already given 60 days time to the respondents to surrender before the learned Court below, prayer for stay of the operation of this order is refused.
(Shivakant Prasad, J.)