Jharkhand High Court
Awadhesh Kumar vs The State Of Jharkhand on 29 April, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2326 of 2023
Awadhesh Kumar, aged about 50 years, son of Late
Bishwambhar Lal Bhagat, resident of T.G. Road, Sahibganj,
P.O.- Sahibganj, P.S.- Sahibganj (T), Dist.- Sahibganj
...... Petitioner
Versus
1.The State of Jharkhand
2. The Union of India ...... Opposite Parties For the Petitioner : Mr. Anil Kr. Sinha, Adv.
For the State : Ms. Priya Shrestha, Spl. PP For the Union of India : Mr. Anil Kumar, ASGI Ms. Chandana Kumari, AC to ASGI PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 23.01.2023 passed by learned Additional Sessions Judge-I, Sahibganj in Cr. Revision no. 82 of 2022, whereby and where under, the revision petition filed by the petitioner has been dismissed. The said revision petition was filed challenging the order dated 20.08.2022, passed by learned Railway Magistrate, Sahibganj in Railway Act Case no. 1444 of 2019 by which, learned Railway Magistrate, rejected the petition for discharge, filed by the petitioner herein, who is accused person of the case.
3. The brief facts of the case is that the allegation against the petitioner is that he in and unauthorized manner was running the business of procuring and selling of Railway E-tickets and because of his unauthorized business, passengers had to pay extra money to him. A raid cum search was conducted; in which, 1 Cr.M.P. No. 2326 of 2023 one railway live E-ticket and 05 nos. of old Railway E- tickets were recovered from the laptop of the petitioner which were procured from the personnel ID and personnel bank account of the petitioner. Before the revisional court, the petitioner, herein, admitted that he was teaching in St. Xavier's School, at relevant time and he was also running a travel agency but he failed to furnish the particulars of IRCTC ID of the travel agency run by him. Before the revisional court, the petitioner also took the plea of alibi, stating that at the relevant time of raid, he was in St. Xavier's School but the revisional court, did not rightly, consider the same, being of the opinion that such a plea of alibi can only be taken during the trial. The revisional court after perusing the materials in the record was of the opinion, that the prosecution report supports the case of the prosecution and prima facie shows the involvement of the revisionist in the unauthorized booking of tickets commercially. The revisional court discussed the relevant portion of the evidence of pre-charge evidence and the eight witnesses examined by the prosecution who were also cross- examined before charge and after considering the same, it came to the conclusion that there is direct allegation against the revisionist and also formed an opinion that the trial court has not committed any illegality in rejecting the prayer for discharge, in view of the settled principle of law, as has been reiterated by the Hon'ble Supreme court of India, in the case of the Ajoy Kumar Ghose vs. State of Jharkhand reported in Cr. Appeal no. 485 of 2009 dated 18.03.2009 that when the Magistrate exercises the power under Section 245 (1) of the Cr.P.C, he has to consider whether the evidence remains unrebutted, the conviction of the accused would be warranted and if there is no discernible incriminating material in the evidence, then the Magistrate is to proceed to discharge the accused under Section 245(1) Cr.P.C and dismiss the revision.
4. It is submitted by learned counsel for the petitioner that the petitioner is innocent and has not committed any offence and he has falsely been implicated in this case. It is further submitted that 2 Cr.M.P. No. 2326 of 2023 the prosecution has failed to produce any material so far, in support of their frivolous allegation against the petitioner of running a business of procuring and selling Railway E-ticket, through personnel ID. It is next submitted that the petitioner has been arrested without serving him the notice under Section 41A of the Cr.P.C which is in violation of the direction by the Hon'ble Supreme Court of India, in the case of Arnesh Kumar vs. State of Bihar and Anr. reported in (2014) 8 SCC 273.
5. Learned counsel for the petitioner also relied upon the judgment of the Hon'ble Madras High Court in the case of Mr. V. Anandakumar and Another v. Union of India Represented by The Inspector/RPF Loco Works-Perumbur Chennai-23 reported in 2015 SCC Online Mad 13236 wherein in a case where the accused was convicted for the offence punishable under Section 143 (1) (a) of the Railways Act, Hon'ble Madras High Court observed that not much reliance could be placed on the recovery and seizures made to a process when a decoy was used for gathering the materials prior to registration of a case.
6. Learned counsel for the petitioner also relied upon the judgment of the Hon'ble Supreme Court of India in the case of State of M.P. vs. Mukesh & Ors. reported in (2006) 13 SCC 197, para 16 of which reads as under:-
"16. A person in view of the aforementioned provision can be said to have committed an offence if he has been carrying on a business. The expression "business" implies continuity."
and submits that there is no continuity in petitioner of procuring and supplying tickets for travel, hence, the petitioner cannot be said to be carrying on the business of procuring and supplying the tickets for travel in railway, thus both the courts below ought to have held that this is a fit case where the petitioner be discharged in the case.
7. Learned counsel for the petitioner also relied upon the judgment of the Hon'ble Supreme Court of India in the case of Sanjay Kumar Rai vs. State of Uttar Pradesh and Anr. reported in 2021 SCC Online SC 367, wherein, in a matter of prayer for discharge 3 Cr.M.P. No. 2326 of 2023 under section 239 of Cr.P.C being rejected, the Hon'ble Supreme Court of India, reiterated the well settled principle that the trial court while considering the discharge application is not to act as a mere post office, but has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect, and the court has to consider the broad probability, total effect of evidence and documents produced and basic infirmity appearing in the case and as in that case, as the high court, which was exercising the revisional jurisdiction, failed to reconsider the entire matter and failed to entertain revision petition, on merits, the Hon'ble Supreme Court of India, set aside the revisional order passed by the High Court.
8. It is next submitted that Mr. D.N. Panshi, who is the main person, of the prosecution, has not been cited or examined as a witness. Thus, the whole case has been set up by prosecution only to wrongly implicate the petitioner. The prosecution has failed to explain why the petitioner was not arrested on 25.08.2019. Mr. A.K. Rajak has made some improvement in his statement on oath before the trial court, hence, it is submitted that the prayer as made in this petition, be allowed.
9. Learned Additional Solicitor General of India, drawing attention of the court to section 12 of the Railway Protection Force Act, 1957 submits that the power vested with the members of the Railway Protection Force is different from the power vested upon a police officer, under the code of Criminal Procedure and submits that in the case of Arnesh Kumar vs. State of Bihar and Anr. (supra) , the Hon'ble Supreme Court has no occasion, to consider the power vested under section 12 of the Railway Protection Force Act, 1957. It is next submitted that the consequence of not following the mandatory requirement of Section 41A of the CrPC, has itself been provided for in the judgment of Arnesh Kumar vs. State of Bihar and Anr. (supra) but nowhere it has been said therein, that in case of failure of adherence to Section 41 A of the Cr.P.C, the accused of the case is to be discharged, hence, it is 4 Cr.M.P. No. 2326 of 2023 submitted that so far as this criminal miscellaneous petitioner is concerned, the judgment of Arnesh Kumar vs. State of Bihar and Anr. (supra) , is not relevant. It next submitted by drawing attention of the court to the order passed by learned Magistrate as well as the revisional court that there is ample material in the record to rule out the sine qua non, required for the Magistrate, to exercise the power under Section 245 (1) i.e. to say, " no case against the accused has been made out which, if unrebutted, would warrant his conviction". It is then submitted by the learned ASGI that rather the materials have been brought before the trial court, in the shape of the evidence from the complaint before charge and the evidence of before charge witnesses, which are in the record and which have been elaborately discussed by the revisional court in the impugned order. It is then submitted that no illegality has been committed by the revisional court, hence, there is no justifiable reason for this court to interfere with the order passed by the revisional court, by which, the revisional court has dismissed the Criminal Revision No. 82 of 2022. It is lastly submitted that this criminal miscellaneous petition being without any merit be dismissed.
10. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, this court finds that the revisional court has discussed the materials in the record in detail, and has also discussed the relevant provision of law, and there is direct and specific allegation against the petitioner of committing the offence punishable under Section 143 (1) (a) of the Railways Act , as the petitioner though is neither a railways servant nor an agent authorized as per law, used to carry out the business, of procuring and supplying tickets for travel of railways, which is evident from the several tickets, which were recovered from his laptop, using his personal I.D. and payment of which, has been made from his own personal bank account. There are certain admissions made by the petitioner- accused person of the case, in paragraph- 5 of the revision 5 Cr.M.P. No. 2326 of 2023 petition, wherein he admitted that he was a teacher in St. Xavier's school at the relevant and he was also running a travel agency but he failed to furnish the particulars of IRCTC I.D. in his name. Thus, this Court is of the considered view that the opinion arrived at by the revisional court, that there is sufficient ground for presuming prima facie, that the accused persons, have committed offence under Section 143 (1) (a) of the Railways Act, cannot be termed as an illegality.
11. So far as the judgment in the case of Arnesh Kumar vs. State of Bihar and Anr. (supra) , is concerned, as has rightly been pointed out by learned ASGI that obviously in the said judgment, the Hon'ble Supreme Court of India, had no occasion to consider the provisions, of Section 12 of the Railway Protection Force, Act 1957; which reads as under:
12. Power to arrest without warrant.--
Any member of the Force may, without an order from a Magistrate and without a warrant, arrest--
(i)any person who voluntarily causes hurt to, or attempts voluntarily to cause hurt to, or wrongfully restrains or attempts wrongfully to restrain, or assaults, threatens to assault, or uses, or threatens or attempts to use, criminal force to him or any other member of the Force in the execution of his duty as such member, or with intent to prevent or to deter him from discharging his duty as such member, or in consequence of anything done or attempted to be done by him in the lawful discharge of his duty as such member; or
(ii)any person who has been concerned in, or against whom a reasonable suspicion exists of his having been concerned in, or who is found taking precautions to conceal his presence under circumstances which afford reason to believe that he is taking such precautions with a view to committing a cognizable offence which relates to railway property, passenger area and passengers; or
(iii)any person found taking precautions to conceal his presence within the railway limits under circumstances which afford reason to believe that he is taking such precautions with a view to committing theft of, or damage to,railway property, passenger area and passengers; or
(iv)any person who commits or attempts to commit a cognizable offence which involves or which is likely to involve imminent danger to the life of any person engaged in carrying on any work relating to railway property, passenger area and passengers.
6 Cr.M.P. No. 2326 of 2023Which vests certain special powers upon the member of Railway protection Force, which powers are not vested upon the officers of the police under the control of the state government nor the Central Government, under whose control, the Railway Protection Force is; was given any direction, in para 11.1 of the said judgment, rather the direction in the para 11.1 of the said judgment, is to all the State Government. Moreover, nowhere, the Hon'ble Supreme Court of India, has laid down any law, that non- compliance of section 41A will result in discharge of the accused in the case, irrespective of the fact, whether the materials in the record exists against the accused or not, rather in para 11.7 and 11.8 one of the said judgment of Arnesh Kumar (supra), consequence of non-adherence to the provisons of Section 41 A of CrPC, has been dealt with and has been explicitly mentioned. Thus, this court is of the considered view that the judgment in the case of Arnesh Kumar vs. State of Bihar and Anr. (supra), is of no help to the petitioner, so far as the present criminal miscellaneous petition is concerned, which is confined only to the prayer of the alleged illegality committed by the court below in not discharging the accused.
12. So far as the judgment of the Hon'ble Supreme Court of India, in the case State of M.P. vs. Mukesh & Ors. (supra), is concerned there is no doubt that the expression 'business' as has been mentioned in Section 143 of the Railways Act, implies continuity but there is allegation against the petitioner that he was continuously procuring and supplying the tickets for travel on railways and there is admission also, made by the petitioner, before the revisional court, in para 5 of the revision petition, that the petitioner was running a travel agency, the particulars of the IRCTC I.D., of course, could not be furnished by the petitioner.
13. So far as the judgment of the Supreme Court of India in the case of Sanjay Kumar Rai vs. State of Uttar Pradesh and Anr. (supra) is concerned, no doubt the same are the settled principle of law, but in this case, the revisional court, has considered all the points 7 Cr.M.P. No. 2326 of 2023 raised before it and has sifted through the evidence in the record and after sifting the evidence in the record, arrived at the conclusion that there is sufficient ground, not to arrive at a conclusion that this is case, where it cannot be said in view of the materials in the record, that "no case against the accused has been made out which if unrebutted, warrant his conviction".
14. So far as the judgment of Hon'ble Madras High Court in the case of Mr. V. Anandakumar & Anr. vs. Union of India (supra) is concerned, the same relates to a case where the conviction was already made by learned trial court and Hon'ble Madras High Court, in the said judgment has discussed the principles regarding the appreciation of the evidence which at this stage of the case, is not very relevant.
15. Under such circumstances, this Court is of the considered view that the revisional court being the court of learned Additional Sessions Judge, I, Sahebganj, has not committed any illegality in passing the order dated 23.01.2023. Therefore, there is no justifiable reason for this court to interfere with the same, in exercise of the jurisdiction under Section 482 of Cr.P.C.
16. Accordingly, this Criminal Miscellaneous Petition being without any merit is dismissed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 29th April, 2024 Smita /AFR 8 Cr.M.P. No. 2326 of 2023