Bombay High Court
Namdeo S/O Narayan Pagote And Another vs The Union Of India Through Rpf ... on 7 March, 2026
2026:BHC-NAG:3850
65 revn no.220.17.odt..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION NO. 220 OF 2017
1. Namdeo s/o Narayan Pagote
Aged about 70 years,
Occupation:- Retired.
R/o Vasant Nagar, Dist. Nagpur APPLICANTS
2. Pradeep s/o Kisan Gajbhiye,
Aged about 57 years, Occ. Service,
R/o Jagjivan Nagar, Dist. Nagpur
// V E R S U S //
1. The Union of India,
Through RPF Inspector, NON-APPLICANT
Railway Protection Force, Itwari,
Nagpur
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Mr. S.S. Jaiswal, Advocate a/w Mr. Ritesh Kalra, Advocate
and Mr. R.S. Kalangiwale, Advocate for the applicants.
Ms. Neeraja Choubey, Advocate for non-applicant.
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CORAM : URMILA JOSHI PHALKE, J.
JUDGMENT RESERVED ON:- 26.02.2026
JUDGMENT PRONOUNCED ON:- 07.03.2026
ORAL JUDGMENT :
1. Heard.
2. ADMIT. Taken up for final disposal with the consent of learned counsel for the parties.
65 revn no.220.17.odt..odt 2
3. The revision application is filed by the applicants who are the original accused for setting aside the judgment and order passed by the Judicial Magistrate First Class, Railway Court, Nagpur in Regular Criminal Case No.313/1991 by which they were convicted for the offence punishable under Section 3(a) of Railway Property (Unlawful Possession) Act, 1966 and sentenced to suffer rigorous imprisonment for three months each and to pay fine of Rs.2000/- each and in default of payment of fine he further suffers simple imprisonment for three days and same was confirmed in Criminal Appeal No.180/2016 by judgment dated 27.12.2017.
4. Brief facts which are necessary for the disposal of the criminal revision application are as under:-
On 03.12.1990, CBI Inspector M.M. Singh received an information that one Dilip Sudame co-accused is possessing the railway property. Therefore, he along with staff conducted search of scrap shop of said co-accused and found 980 KG Ferro Manganese, 8CST-9 Plates, 1, Tie-bar 65 revn no.220.17.odt..odt 3 which was railway property possessed by him unauthorized.
During inquiry with him it reveals to him that present applicants who are accused Nos.9 and 11 are the RPF constables and he purchased the said railway property from them. After seizure and arrest of co-accused CBI Inspector has handed over the seized material on Supratnama to Deputy Station Superintendent, Bhandara Shri Gajanan Deshmukh who lodged report of the incident with RPF post, Itwari, Nagpur. During the inquiry conducted by the complainant co-accused have confessed that they loaded ferro manganese from a wagon which was stationary in Railway Station Bhandara, in a Metador which was brought by accused Nos.7 and 8 on the say of present applicants accused Nos.9 and 11 along with accused No.10. The accused No.2, in his statement stated that he has assisted present applicants and accused No.10 in loading ferro manganese in Matador. Co-accused who are accused Nos.7 and 8 also confessed in the statement recorded by complainant that the railway property i.e. ferro manganese was loaded in the said Metador on the say of present applicants and co-accused No.10 with the help of other 65 revn no.220.17.odt..odt 4 accused. The complainant has seized the property in question from the custody of Deputy Station Superintendent, Bhandara and draw the sample which was examined from the expert and it was matched with the seized property ferro manganese. The wagon was got weighed at Railway Station Itwari. The muster roll disclosing the fact that present applicants who are RPR constable were deputed on duty of protection of said wagon. After completion of the inquiry, it was found that present applicants are involved in committing offence punishable under Section 3(a) of the Act and accordingly, on the basis of report the crime was registered against the present applicants.
5. During trial accused Nos.1, 2 and 7 i.e. Dilip Sudame, Rajababu Tulshiram Bansod and Manohar Wasnik pleaded guilty and they are convicted. Before framing of charge evidence of the complainant as witnesses was recorded. Thereafter charge was framed vide Exh.178 against accused No.3 Amit Arun Joshi, accused No.5- Sevak Tulshiram Thote, accused No.6 Diwalu Baliram Waghmare, 65 revn no.220.17.odt..odt 5 accused No.8-Omkar Mangal Gajbhiye, accused No.9- Namdeo Narayan Pagote (applicant No.1) accused No.11- Pradip Kisan Gajbhiye and accused No.12-Siddarth Dashrath Bagle. During pendency of trial accused No.4-Babarao Muka Sahare and accused No.10- Jaiprakash Khanna reported to be dead.
6. After recording the evidence of the witnesses the trial Court held them guilty and convicted them as aforesaid. Being aggrieved and dissatisfied with the same present applicants preferred an appeal bearing No.180/2016 which came to be dismissed. Hence, present revision application is preferred by the applicants.
7. Heard learned counsel for the applicants who submitted that the impugned judgment and order of dismissal by the learned Additional Sessions Judge-9, Nagpur is erroneous as learned Judge has not considered the consequence of material contradictions and omissions brought on record. Learned Appellate Court has also failed to consider that many of the confessional statements of the 65 revn no.220.17.odt..odt 6 accused did not bear the signature of the witnesses time and place. This material aspect has totally neglected by the learned Additional Sessions Judge, Nagpur. Learned Sessions Judge has also ignored the fact that confessional statement of the co-accused is not admissible against the present applicants. Learned counsel for the applicants placed reliance on the decision of the Balkishan A. Devidayal Vs. State of Maharashtra reported in (1980) 4 SCC 600, Kashmira Singh vs. State of Madhya Pradesh reported in (1952) 1 SCC 275, Sidharth and others vs. State of Bihar reported in (2005) 12 SCC 545 and Mohd. Naushad vs. State (Government of NCT of Delhi) reported in (2024) 12 SCC 494. In view of that present revision application deserves to be allowed.
8. Per contra learned APP supported both the judgments of the trial Court as well as First Appellate Court and submitted that considering the scope of the revision as this Court cannot re appreciate the evidence in revision. The interference is called for when the judgment of the trial Court or the first Appellate Court is on the basis of no 65 revn no.220.17.odt..odt 7 evidence or evidence which even if believed in entirety cannot prove the guilty of the accused. Here the trial Court as well as the First Appellate Court has considered the entire aspect and evidence and thereafter recorded the conviction. Hence no interference is called for.
9. The allegation against present applicants is that they were serving as Railway Police Constables and while on duty they have committed the theft of the railway property and sold it to the co-accused. In order to prove the guilt of the accused prosecution has examined in all 15 witnesses and also relied on the documentary evidence. Witness PW-3 Vidyadhar Pinjarkar who was examined vide Exh.206, who was working as Senior Siding Clerk, MEH Chandrapur has deposed that total 25 wagons proceeding from Chandrapur to Durgapur were loaded with ferro manganese. PW-8 Surendra Lahotre also deposed that at about 8.00 a.m. DSEY train had arrived at Chandrapur Railway Sation and its entry was taken in wagon exchange book about its arrival and entry of 25 loaded wagon out of 27 wagons were taken. He has proved these entries vide 65 revn no.220.17.odt..odt 8 Exh.229. PW-3 has admitted in his cross-examination that ferro manganese is also available in Tumsar. The said admission was highlighted and emphasises by the learned counsel for the applicants and submitted that PW-3 has not received any complaint from SCL, Durgapur about shortage of ferro manganese. The material evidence adduced by PW- 12 Ramesh Meshram vide Exh.238, who deposed that on 14.11.1990 he had been to Bhandara for examination of wagon and he has inspected said wagons for it's repair. He repaired the wagon and the label affixed on the wagon was displaying ferro manganese in it. In his cross-examination the omission that he has not stated the said fact in his submission that there was label on said wagon was brought on record by the defence. But it is not an material omission. Another witness PW-17 was working as Deputy Station Superintendent Bhandara has corroborated the evidence of other witnesses by testifying that a train proceeding from Chandrapur was carrying manganese and wagon No.86860CR was detached from the said train and document to that effect is the certificate Exh.149. Thus, material evidence is brought on record by this witness who 65 revn no.220.17.odt..odt 9 has proved muster roll at Exh.140 which shows that present applicants were deputed at Goods shed to protect the goods till 19.11.1990. This witness also proved that complainant has seized piece of ferro manganese from him for chemical analysis.
10. The prosecution has also examined PW-Sarau Bharia vide Exh.232 who deposed that on 04.02.1991 he was working at Railway Weighing Bridge, Itwari and contents of weight certificate Exh.141 are true.
11. Enquiry Officer S.S. Ingle was examined vide Exh.40, who deposed that accused No.1 Dilip Sudame disclosed to him that ferro manganese was sold to him by present applicants and deceased accused No.10-Jaiprakash Khanna. His evidence further shows that said accused No.1 Dilip Sudame could not produce any document legally authorized him to possess the said material. This Inquiry officer has recorded statements of the witnesses and confessional statement of accused Nos.3, 4, 5 and 6 who confessed that they loaded ferro manganese from a wagon 65 revn no.220.17.odt..odt 10 which was stationary at Railway Station Bhandara in a Metador brought by accused Nos.7-Manohar Wasnik and accused No.8 Omkar Gajbhiye who also confessed that it was accused No.3-Amit Joshi, accused No.4- Babarao Sahare, Accused No.5 Sevak Thote and accused No.6 Diwalu Waghmare were involved in loading ferro manganese in said Metador on the say of present applicants. Thus, the evidence discussed above discloses that DSEY train had arrived at Chandrapur at about 8.00 a.m. having total 27 wagons out of it was loaded with ferro manganese which were proceeding from Chandrapur to Durgapur. The wagon loaded with ferro manganese was standing stationary at Bhandara Railway Station till 19.11.1990. On 14.11.1990 the wagon No.86860CR was inspected and repaired by PW No.12 Ramesh which was detached from the train and thereafter weighed at Railway Weighing Bridge, Itwari. Despite lengthy cross-examination nothing is elucidated to disbelieve version of complainant witnesses to extend that the wagon was standing stationary in the Bhandara Railway Station was loaded with ferro manganese and it was in possession and in charge of 65 revn no.220.17.odt..odt 11 Railway authorities. Exh.144 and 139 reveal that on 4.02.1991 the wagon CR No.86860 was having net weight of 516 quintal. Exh.145 is consignment slip which reveals that CR No.86860-556 was carrying loose ferro manganese and its sender name was Maharashtra Elecktrosmelt Limited. Consignment was sent to the Superintendent Raw Material Department Durgapur, Steel Plant Durgapur.
11. On perusal of the confessional statement of the accused No.3, 5, 6 and 8 which are respectively at Exh. 129, 130, 133 and 135. These confessional statement disclose the involvement of the present applicants in the alleged offence.
12. Before entering into the merits of the present case it is necessary to see the relevant provisions of the Railway Property Unlawful Possession Act. The definition of Railway Property Act is defined in clause -(d) of Section 2 of said 1966 Act.
14. The section 3 deals with the offence of having possession of the Railway Property Act. Section 3 provides that :-
65 revn no.220.17.odt..odt 12 "Whoever 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 two years and such fine shall not be less than two 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.
Thus, if any person is found or proved to be in possession of any "railway property", which is reasonably suspected of having been stolen or unlawfully obtained, the burden shall shift on to that person, to prove his innocence, 65 revn no.220.17.odt..odt 13 that is to say, to establish that he came into possession of the "railway property" lawfully.
Section 4 provides punishment for persons wilfully conniving at an offence under the provisions of this Act.
Section 5 says :-
"Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence under this Act shall not be cognizable".
13. It may be noted that in spite of provision in the Code of Criminal Procedure to the contrary, offences under this Act have been made non cognizable and, as such, cannot be investigated by a police officer under the Code. It follows that the initiation of prosecution for an offence inquired into under this Act can only be on the basis of a complaint by an officer of RPF and not on the report of a police officer under Section 173(4) of the Criminal Procedure Code, 1898.
Section 6 gives powers to any superior officer or member of the Force to arrest without an order from a magistrate and without a warrant, any person who has been concerned, in an offence punishable under this Act, or against whom a reasonable suspicion existed of his having been so concerned.
65 revn no.220.17.odt..odt 14 Section 7 of the Act provides that the procedure for investigation of a cognizable offence has to be followed by the officer before whom the accused person is produced.
Section 8 of the 1966 Act provides for an inquiry to be made against the arrested persons. According to it, 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. It is to be noted that such power of inquiry, has been conferred on 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, 1898. Sub-section (2) of this section confers on the officer of the Force "the same powers" for the purpose of the inquiry under sub-section (1) and 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 a cognizable case." Then there is a proviso which says:
"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 a Magis-
trate 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 re- quired, before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior."
65 revn no.220.17.odt..odt 15 Section 9 gives powers to an officer of the Force to summon persons to give evidence and produce documents, or any other thing in any inquiry for any of the purposes of this Act. Sub-sections (3) and (4) provide:
"(3) All persons, so summoned, shall be bound to attend either in person or by an authorised agent as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required:
Provided that the exemption under Sections 132 and 133 of the Code of Civil Procedure, 1908, shall be applicable to requisitions for attendance under this section."
"(4) Every such inquiry as aforesaid shall be deemed to be a 'judicial proceeding' within the meaning of section 193 and Section 228 of the In-
dian Penal Code."
Section 10 enables an officer of the Force, having reason for the requisite belief to apply for a search warrant to the Magistrate.
Section 11 provides that searches and arrests shall be in accordance with the provisions of the Code. Section 14 makes it clear that the provisions of the Act shall override all other laws. This means that if there is anything in the 1966 Act which is incon- sistent with the Code, then on that point, the 1966 Act will prevail and the application of the Code pro tanto will be excluded. The most important example of such exclusion, as already noticed, is to be found in Section 5 of the 1966 Act which makes as offence under this Act non-cognizable, notwithstanding anything in the Code. This clearly shows that the provisions of the Code cannot 65 revn no.220.17.odt..odt 16 proprio vigore apply to an enquiry conducted un- der Section 8(1) of the 1966 Act by an officer of the Force.
13. The power and duty of an officer of the RPF conducting an inquiry under the 1966 Act, differs from a police investigation under the Code, is this. Sub-section (3) of Section 161 of the Code says that the police officer may reduce into writing any statement made to him in the course of investigation. Section 162(1), which is to be read in continuation of Section 161 of the Code, prohibits the obtaining of signature of the person on his statement recorded by the investigating officer. But no such prohibition attaches to statements recorded in the course of an inquiry under the 1966 Act; rather, from the obligation to state the truth under pain of prosecution enjoined by Section 9(3) and (4), it follows as a corollary, that the officer conducting the inquiry may obtain signature of the person who made the statement.
14. The primary duty of the member of officer of RPF is to safeguard and protect railway property. Only such 65 revn no.220.17.odt..odt 17 powers of arrest and enquiry have been conferred by 1996 Act by members of the RPF as necessary and incidental to the efficient and effective discharge of basic duty of watch and guard. Unlike police officer who has general power under the power to investigate or cognizable cases the power of RPF to make an is restricted to offences under the 1966 Act.
15. After going through the relevant provisions 1966 Act and Code of Criminal Procedure it is abundantly clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has does not possess several important attributes of an officer in charge of police station conducting an investigation under chapter XIV of the code. The character of the 'inquiry' is different from that an investigation the Code. The official status and powers of an officer of the Force in the matter of inquiry under the 1966 Act differ in material aspects from those of a police officer conducting an investigation under the said Code. Thus, it is clear that an officer of the RPF conducting an inquiry under Section 8(1) of the 1966 Act has not been invested with all 65 revn no.220.17.odt..odt 18 the powers of an officer in charge of a police station making an investigation under Chapter XIV of the Code. Particularly, he has no power to initiate prosecution by filing a charge-sheet before the magistrate concerned, under Section 173 of the Code, which has been held to be the clinching attribute of an investigating "police officer". Thus an officer of the R.P.F. could not therefore 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 the course of an inquiry under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section.
16. This aspect is considered by the Hon'ble Apex Court in the case of Balkishan A. Devidayal vs. State of Maharashtra referred supra wherein Apex Court held that the primary test to determine whether an officer under a special Act is a "police officer" for the purpose of Section 25, Evidence Act is whether that officer has been invested with all the powers exercisable by an officer in charge of police station under Chapter XIV of the Cr.P.C, 1898, qua 65 revn no.220.17.odt..odt 19 investigation of offences under that Act, including the power to initiate prosecution by submitting a report(charge-sheet) under Section 173 of the Code. It is not enough to show that he exercises some or even many of the powers police officer conducting an investigation under the Code.
17. It is further held by Hon'ble Apex Court that it may be recalled that the primary test evolved in Badku Jyoti Savant case reported in 1966 3 SCR 698 by constitution Bench is:-
Whether the officer concerned under the special Act, has been invested with all the powers exercisable by an officer- in-charge of a Police Station under Chapter XIV of the Code, qua investigation of offences under that Act, including the power to initiate prosecution by submitting a report (chargesheet) under Section 173 of the Code. In order to bring him within the purview of a 'police officer' for the purpose of Section 25 Evidence Act, it is not enough to show that he exercises some or even many of the powers of a police officer conducting an investigation under the said Code.
65 revn no.220.17.odt..odt 20
18. Thus, Hon'ble Apex Court has clarified that an officer of the RPF conducting an inquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer in charge of a police station making an investigation under Chapter XIV of the Code. Particularly, he has no power to initiate prosecution by filing a charge- sheet before the Magistrate concerned under Section 173 of the Code and thus, he 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 the course of an inquiry under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section.
19. Here entire case is based on confessional statement of the accused Nos.3, 5, 6 and 8 which are at Exh.129, 130, 133 and 135. Said confessional statements are recorded by Inquiry Officer who is the RPF Officer. Trial Court as well as First Appellate Court have accepted the said confessions on the premise that RPF authorities are not Police Officers and confessional statement can be considered as there is no impediment as accused being tried jointly.
65 revn no.220.17.odt..odt 21 However, learned trial Court and the First Appellate Court ignored the rules 14 and 15 of the Manual of Railway Laws (procedure for inquiry under the R.P. Act) and Sections 164 and 281 Cr.P.C. Rule 15 require that, if the accused wishes to make a confessional statement, it should be recorded in presence of two independent respectable witnesses and the accused should produce before a Magistrate of competent jurisdiction with the confession recorded by that Magistrate as required by Cr.P.C.
20. Here there is no evidence or it is not the case of prosecution that accused were produced before Magistrate and had their confessions recorded by the Magistrate as mandated, such statement cannot be sufficient as a basis for convicting the present applicants. In this behalf, it is necessary to note the provisions of procedure of inquiry into offence under Railway Properties (Unlawful Possession) Act, 1966.
21. Rules 14 and 15 of Manual of Railway Laws are reproduced as under:-
65 revn no.220.17.odt..odt 22 "14. Record of oral examination and statements of witness.- 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.
15. If the accused wants to make a confessional statement, the same should be recorded in the presence of two respectable and independent witness/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 required by the provisions of the Code of Criminal Procedure, 1973.
(sections 164 and 281 of the Code of Criminal Procedure)."
22. In view of above said provision the prosecution has not come with the case that accused were produced before Magistrate of the competent jurisdiction and confession be recorded by the said Magistrate. Moreover prosecution evidence nowhere shows that said confessional statements of the accused 65 revn no.220.17.odt..odt 23 are recorded in presence of two respectful and independent witnesses and therefore, the same cannot be said to be sufficient to form basis for the conviction of the accused. The judgment of the trial Court as well as First Appellate Court show that co-accused i.e. accused Nos.3, 5, 6 and 8 made confessional statements showing the involvement of the present applicants. Besides that the prosecution placed reliance on the oral evidence of the complainant witness which is supported by documentary evidence Exh.140, muster entry which shows that at the time of incident accused Nos.9,10 and 11 was working as RPF constable and deputed at Bhandara Railway Station and was duty bound to protect Railway Property. It is not disputed by the accused also that on the day of incident at Bhandara Railway Station they were deputed on duty. It is also not disputed that there was theft of railway property from the stationary wagon. However, there is no evidence on record to show that it was present applicants who have handed over the said ferro manganese to the co-accused and the co-accused have 65 revn no.220.17.odt..odt 24 sold the same. As per prosecution case accused Nos.3, 4, 5 and 6 have confessed that they loaded ferro manganese from wagon which was stationary in Railway Station Bhandara which was brought by the accused Nos.7 and 8 on the say of present applicants and deceased accused No.10. Accused No.2 in his statement stated that he has assisted accused Nos.9, 10 and 11 and present applicants and deceased accused No.10 loaded in said wagon. Accused Nos.7 and 8 also confessed in the statement recorded by the complainant that railway property ferro manganese was loaded in the said Metador on the say of the present applicants and deceased accused with the help of accused Nos.3, 4, 5 and 6. Admittedly complainant drew the samples from seized property and get it examined from expert which was matched with the seized property ferro manganese. The wagon was got weight at Railway Station, Itwari. Muster roll disclosing the fact that accused Nos.9, 10 and 11 i.e. present applicants and deceased accused are the RPF constables were deputed on duty of protection of said 65 revn no.220.17.odt..odt 25 wagon. After completion of the investigation the inquiry officer came to the conclusion that involvement of the present applicants is in the handing over of the railway property to the other co-accused. Thus, except the evidence that present applicants were deputed on duty for protection of the wagon rest of the evidence on which prosecution relied upon is the confessional statement of the co-accused.
23. Admittedly, there is no evidence to show that said confessional statement was recorded by inquiry officer in presence of two respectable and independent witnesses and the requirement is also that said independent witnesses should also require to affix their signature there upon. Admittedly, the said confessional statements are not recorded in presence of two independent witnesses. The accused were also not produced before Magistrate of a competent jurisdiction to record their confession in view of Rule 15 of the Railway Properties (Unlawful Possession) Act, 1966 and Rules thereby. Therefore, even if it is assumed that present applicants were deputed on duty and other co-
65 revn no.220.17.odt..odt 26 accused have made confessional statement before RPF Authority, that fact would not be sufficient to convict the present applicants as there is no direct evidence against present applicants to show that they have handed over said ferro manganese to the co-accused. Besides the confessional statement merely on the strength of confessional statement, they cannot be held guilty.
24. The law is settled as far as revisional powers are concerned. The scope of interference by this Court in revisional jurisdiction under Section 397 of the Criminal Procedure Code, is limited. In its revisional jurisdiction, this Court, is not expected to sit as a Court of Appeal and re-appreciate the evidence. However, when the findings of the Court below, appear to have been recorded, on the basis of no evidence, or evidence which even if believed in entirety, cannot prove the guilt of the accused for the offences charged, this Court, would be justified, in exercising its jurisdiction, under Section 397 of the Code of Criminal Procedure.
65 revn no.220.17.odt..odt 27
25. Thus, the evidence of the RPF officers as prosecution witness sufficiently shows that there is non compliance of Rule 15 of the Railway Properties (Unlawful Possession) Act, 1966 and Rules thereby and the confessional is not recorded in presence of the independent witnesses and the accused are also not produced before Magistrate to record the confessions. In view of non-compliance and violation of the provisions i.e. Rules 14 and Rules 15 as well as non compliance of Sections 164 and 281 of the Code of Criminal Procedure. The judgment and order passed by the learned trial Court as well as First Appellate Court was not justified in concluding that the case of the prosecution is proved and thereby convicting the present applicants.
26. It is observed by Hon'ble Apex Court in the case of Kashmira Singh vs State of Madhya Pradesh (supra) relied upon by the learned counsel for the applicants that the co-accused's confession has played an important part in implicating the appellant-accused, and the question at once arises, how far and in what 65 revn no.220.17.odt..odt 28 way the confession of a co-accused person can be used against an accused? It is evident that it is not evidence in the ordinary sense of the term. It does not indeed come, within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is obviously evidence of a very weak type. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Such a confession cannot be made the foundation of a conviction and can only be used in "support of other evidence". Even after accepting the legal position that RPF officer is not a Police Officer and therefore, confession recorded by him is not hit by Section 25 of the Indian Evidence Act then also question remains that as there is no compliance of Rule 15 while recording the confession then such type of the evidence which is produced before the Court could not suffice as a basis for convicting the present applicants.
65 revn no.220.17.odt..odt 29
27. In this view of the matter, it is difficult to say that the view taken by the learned Magistrate as well as First Appellate Court is legal and proper. This would cover under the requirement that within the scope of Section 397 of the Criminal Procedure Code the scope of revision for interference is when the findings of the courts below even if believed in entirety cannot be proved guilt of the accused for the offence charge. As already observed by me that except the evidence of the confessional statement of the co accused there is absolutely no other evidence to connect the present applicants even if the said confessional statements are accepted it is not within the purview of Rule 15 of the Railway Properties (Unlawful Possession) Act 1966 and therefore, such type of evidence would not be sufficient to convict the present applicants. In view of that revision application deserves to be allowed.
28. Accordingly, I proceed to pass the following order:-
65 revn no.220.17.odt..odt 30
(i) Criminal Revision Application is allowed.
(ii) Conviction and order of sentence passed by Judicial Magistrate First Class, Railway Court convicting the present applicants of the offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and thereby sentencing to undergo Rigorous imprisonment for three months each and to pay fine of Rs.2,000/- each and in default of payment of fine to suffer Simple imprisonment for three days by the judgment dated 30.07.2016 and confirmed by the Additional Sessions Judge-9 Nagpur in Criminal Appeal No.180/2016 by judgment dated 27.12.2017 is hereby quashed and set aside.
(iii) The applicants are acquitted for the offence punishable under Section 3(a) of the Railway Property (Unlawful Possession ) Act, 1966.
(iv) The amount of fine if deposited by the present applicants be refunded to them after appeal period is over.
Criminal Revision Application is disposed of.
(URMILA JOSHI PHALKE, J.) manisha Signed by: Mrs. Manisha Shewale Designation: PA To Honourable Judge Date: 09/03/2026 10:47:40