Jharkhand High Court
Md. Mausham Ansari vs State Of Jharkhand ... ... Opposite ... on 19 July, 2021
Equivalent citations: AIRONLINE 2021 JHA 915
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 183 of 2012
1. Md. Mausham Ansari, son of Tajuddin Ansari alias Sahjee
Ansari, resident of Village Laludih, P.O. & P.S. - Hariharpur
(Gomoh), District - Dhanbad
2. Akhtar Ansari @ Churka, son of late Ulfat Ansari, resident of
village Laludih, P.O & P.S.- Hariharpur (Gomoh), Dhanbad
... ... ... Petitioners
-Versus-
State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Pratik Sen, Amicus Curiae For the State : Mr. Tapas Roy, A.P.P.
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Through Video Conferencing
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11/19.07.2021 Heard Mr. Pratik Sen, the learned Amicus Curiae appearing on behalf of the petitioners.
2. Heard Mr. Tapas Roy, the learned A.P.P. appearing on behalf of the Opposite Party - State.
3. This criminal revision petition is directed against the judgment dated 30.01.2012 passed by the learned Addl. District & Sessions Judge-I, Dhanbad in Cr. Appeal No. 83 of 2011 whereby the learned appellate court has dismissed the appeal and has upheld the judgment of conviction and the order of sentence dated 28.03.2011 passed by the learned Railway Judicial Magistrate, Dhanbad. The learned Railway Judicial Magistrate, Dhanbad vide judgment dated 28.03.2011 passed in R.P. Case No. 93 of 2002 corresponding to T.R. No. 727 of 2011 had convicted the petitioners for the offence punishable under Section 3 of the R.P. (Unlawful Possession) Act, 1966 and had sentenced them to undergo simple imprisonment for a period of one year for the offence under Section 3(a) of the R.P. (U.P.) Act, 1966 and had directed that the period undergone by them shall be set off from the period of sentence.
Submission on behalf of the petitioners 2
4. The learned Amicus Curiae for the petitioners submitted that altogether three persons were alleged to have been caught with railway property which consisted of four long pull rods and one short pull rod and one of them was juvenile and accordingly, in the present case only two of the accused persons are present before this Court. Learned Amicus Curiae submitted that out of the seized articles, only one long pull rod was exhibited before the learned court below as material Exhibit-1 and that itself demolishes the entire prosecution case. The prosecution was under a legal obligation to produce all the seized articles. He also submitted that since one long pull rod was produced, it cannot be said from whose possession, out of the three persons, the same was recovered.
5. The learned Amicus Curiae also referred to a judgment passed by Hon'ble Supreme Court in the case of Nirmal Lal Gupta Vs. State of Orissa reported in 1995 Supp (2) SCC 713 to submit that the present case of the petitioners is their first offence and therefore, the petitioners would be governed by Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the aforesaid Act of 1966) which provides punishment for imprisonment or fine or both. In the said sub-Section itself, there is a minimum imprisonment of one year for the first offence and the maximum punishment is of 5 years. The learned amicus submitted that considering the fact that the present offence is the first offence of the petitioners, the learned court below ought to have considered the case of the petitioners in the light of the Probation of Offenders Act, 1958 as well, which has not been done by the learned trial court as well as by the learned appellate court. The learned amicus submitted that in the present case, considering the fact that the offence is of the year 2002 and longtime has already elapsed, this Court may consider modifying the sentence and in lieu of 3 imprisonment, some fine may be imposed as it is permissible under the section itself.
Submissions on behalf of the State
6. Learned A.P.P. appearing on behalf of the State, on the other hand, while opposing the prayer submitted that there are concurrent findings recorded by the learned courts below while considering the fact that the matter relates to theft of railway property and the petitioners have been rightly convicted. He also submitted that the learned trial court has already imposed the minimum punishment of one year as prescribed under Section 3(a) of the aforesaid Act of 1966 and accordingly, no interference is called for. However, he submitted that in case, this Court is inclined to interfere with the sentence of the petitioners, then some fine amount may be imposed upon the petitioners.
Findings of this Court
7. After hearing the learned counsel for the parties and after considering the materials available on record, this Court finds that the prosecution case was initiated on the basis of the self- statement of Bipin Kumar, S.I. R.P.F. Post Gomoh to the effect that on 21.10.2002, a raid was conducted with the assistance of local police, Hariharpur in Laludih Village to execute a warrant of arrest in connection with R.P.F. Gomoh P.S. Case No. 24/02. After the raid, the raiding party conducted track patrolling from Telo and Gomoh near Village Laludih and when they reached at K.M. No. C1-24/26, they noticed that three persons were coming carrying something heavy article on their head. Upon suspicion, all the three persons were surrounded and caught and from their possession, four nos. of pull rod and a short pull rod was recovered. The apprehended persons disclosed their identity as Akhtar Ansari @ Churka, Mausam Ansari (both the petitioners herein) and Dawood Ansari. The accused persons could not give any satisfactory 4 explanation with regard to the recovered articles, rather they admitted that they have removed the same from the train. The railway iron articles so recovered were seized and on the basis of occurrence, the present case was instituted and enquired.
8. After completion of enquiry, the enquiry officer submitted prosecution report and cognizance of the offence under Section 3(a) R.P. (U.P.) Act was taken against the accused persons. However, the accused Dawood Ansari was declared minor and hence his case was separated and transferred to the Juvenile Justice Board and the proceeding of the case commenced against remaining two accused who are petitioners in this case. Charge was framed under Section 3 R.P. (U.P.) Act which was read over and explained to the petitioners in Hindi to which they pleaded not guilty and claimed to be tried. The petitioners in their defence claimed to be innocent and the Petitioner No. 2 stated in his defence that he was lifted from his house and has been implicated falsely in the present case. The learned trial court has taken into consideration (1) whether any property as alleged has been recovered from the possession of accused persons; (2) whether such recovered property was railway property and (3) whether the recovered property is reasonably suspected of having been stolen or unlawfully obtained.
9. The prosecution in order to substantiate the case examined altogether 5 witnesses in support of its case. P.W.-1 is Bipin Kumar (Complainant), P.W.-2, is Javed Ahmed, P.W.-3 is Suresh Prasad Singh, P.W.-4 is Lal Saheb Singh (Enquiry Officer) and P.W.-5 is P.K. Mukherjee and the prosecution also adduced material exhibit by producing a sample of the long pull rod which was recovered during the occurrence.
10. P.W-1 is the Complainant and he has stated that the incident had taken place on 21.10.2002 and on that day. he was posted as S.I. in the RPF, Post Gomoh. He deposed that on the 5 date of occurrence, he alongwith other staffs of the R.P.F. Post and accompanied by local police had conducted raid in Village- Laludih for executing a warrant of arrest. During the course of raid, they saw three persons carrying iron materials. All the three were arrested from the spot and from their possession, four long pull rod and one short pull rod were recovered. the apprehended persons could not give any satisfactory explanation with regard to the recovered articles, but instead accepted that they had opened the iron materials from railway wagon. All the three persons further disclosed their names as Akhtar Ansari @ Churka, Mausam Ansari and Dawood Ansari and the recovered articles were seized. He proved the seizure list as Exhibit-1. Thereafter, he made a written complaint with regard to the occurrence on the basis of which the present case was instituted. He proved the written complaint as Exhibit-2. He claimed to identify both the petitioners. During his cross- examination, he denied the suggestion that the accused persons have been falsely implicated in this case.
11. P.W.-2 is a member of the raiding party. He has also fully supported the prosecution case including the seizure of the railway property from the possession of the accused. He has identified a long pull rod, which was produced in the court with a label affixed and upon his proof, the sample was marked as Material Exhibit-I. He also proved the confessional statements of the petitioners as Exhibits- 4 and 4/1. P.W.-3 is the enquiry officer who has visited the place of occurrence and proved the site plan and has stated that long pull rod and short pull rod are fitted in the box wagon. He had enquired the case partly as he was transferred. P.W.-4 is the second enquiry officer who got the recovered article examined by the expert and proved the expert opinion as Exhibit -6. After having found the occurrence as true, he submitted the prosecution report which has been exhibited as Exhibit-7. P.W.-5 is the expert who has also 6 supported the prosecution case and has stated that he had examined the four-pull rod and one short pull rod and identified the same as railway property and disclosed that the same are used in wagons.
12. Thus, all the prosecution witnesses have supported the prosecution case by documentary exhibits and material exhibit. The witnesses were also thoroughly cross examined, but there was no material contradiction. The petitioners were examined under Section 313 of Cr.P.C. wherein both denied the occurrence completely and the Petitioner No. 2 also stated that he was brought from home and has been falsely implicated. However, the petitioners did not produce any witness in support of their case.
13. The learned trial court convicted the petitioners by recording findings in Para-15 which reads as under: -
"15. On hearing the submissions advanced by the rival side and on the basis of materials available on record, I find that the prosecution has proved that a raid was conducted on 21.10.02 and during the course of raid, raiding party saw three persons carrying something heavy. All the three were apprehended and four long pull rod and one short pull rod were recovered from the possession of the all the three persons. They could not give any satisfactory explanation for the recovered articles and rather admitted that they have opened the same from railway wagon. P.W.-1 and P.W.-2 who were members of the raiding party have categorically supported the prosecution case and have also corroborated each other. I further find that P.W.-4 got the recovered materials examined by an expert (P.W.5) who opined that the recovered iron articles were railway property which was used by the Carriage and Wagon department. I further find that there is absolutely nothing in the cross-examination of all the witnesses to disbelieve their credential. I further find that the 7 articles which have been recovered are exclusively used by the railways, hence it doesn't matter much whether it contains the of IR or not."
14. The learned appellate court also considered the materials on record and, after independently scrutinizing the materials on record, gave concurrent findings and upheld the conviction of the petitioners by holding that the prosecution has been able to prove the case beyond all reasonable doubts.
15. So far as the argument of the petitioner regarding production of only one seized rod, out of five, is concerned, this Court finds that the seizure list has been duly proved, all the prosecution witnesses have supported the seizure of five rods from the possession of the accused persons who were caught with the seized articles while moving together and the expert has also deposed about examination of all the seized articles. This Court finds that what was produced as material exhibit before the learned court below as Material Exhibit-I was the sample of the seized articles which was duly marked. This Court is of the considered view that even if each and every seized rod was not produced as material exhibit and only one rod by way of sample was produced, the same has no bearing in the matter as the seizure of five rods were supported by the seizure list as well as the oral evidences of the prosecution witnesses and supported by their examination by the expert witness who has fully supported the prosecution case and expert report has been duly exhibited.
16. The Hon'ble Apex Court has explained the power of revisional court in the case of Jagannath Choudhary and others reported in (2002) 5 SCC 659 at Para-9 which reads as under:
"Incidentally the object of the revisional jurisdiction as envisaged u/s 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from 8 misconception of law, irregularity of procedure, neglect of proper precautions of apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some underserved hardship to individuals. (See in this context the decision of this Court in Janata Dal Vs. H.S. Chowdhary). The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the same has been an appeal, the application would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, but in revision the only question is whether the court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction."
17. The revisional power has been further explained in the case of Ramesh Kumar Bajaj reported in (2009) 1 JCR 684 (Jhar) at Para-13 which reads as follows:
"It is well settled that revisional interference may be justified where:
(i) the decision is grossly erroneous.
(ii) there is no compliance with the provisions of law.
(iii) the finding of fact affecting the decision is not based on evidence.
(iv) material evidence of the parties is not considered and
(v) judicial discretion is exercised arbitrarily or perversely."
18. In view of the aforesaid findings and discussions and considering the entire facts and circumstances of this case, this Court is of the considered view that the learned courts below have passed well-reasoned judgements considering every aspect of the matter and every argument advanced on behalf of the petitioners. This Court does not find any illegality, 9 perversity or material irregularity in the impugned judgements of conviction of the petitioners and the same do not require any interference under revisonal jurisdiction.
On the point of sentence
19. This Court finds that the petitioners have remained in jail custody for one month from 21.02.2010 to 21.11.2002 during trial and after dismissal of the criminal appeal, they had surrendered before the learned court below on 07.05.2012 and were directed to be released on bail vide order dated 26.06.2012 during the pendency of the present case.
20. The Hon'ble Supreme Court in the case of Nirmal Lal Gupta v. State of Orissa reported in 1995 Supp (2) SCC 713 has considered the manner of sentencing as provided under clause
(a) of Section 3 of the aforesaid Act and the issue was whether the convicts could be released under the provisions of Probation of Offenders Act and be released on probation. It has observed as under:
"3. ................. The controversy is on the point whether the appellant could plead for release on probation. The High Court has taken the view that when there is a minimum period of imprisonment prescribed that would not get substituted by an order of release on probation.
4. Our attention may now be focussed on the provision of the section itself. As is evident, it has two clauses. Clause (a) operates to award punishment for the first offence. Clause (b) operates to award punishment for the second or subsequent offence. Both are worded differently. Whereas for clause (a) the maximum term of imprisonment which can be imposed can be upto 5 years, the minimum term of imprisonment imposable is upto one year, and there is a mandate that it shall not be for a period less than one year unless and until for some special and adequate reasons to be mentioned in the judgment of the court, a lesser period of imprisonment had been awarded. It is in this way that the sentence of imprisonment is compartmentalised. The other alternate punishment is imposition of fine. Whereas there is no maximum limit of the fine imposable, but which can in no event be excessive and 10 unreasonable, there is, on the same analogy, a minimum of Rs 1000 fine imposable, unless and until for special and adequate reasons to be mentioned in the judgment of the court, the fine imposed was less than one thousand rupees. This too has its own compartment. Clause (a) gives a choice to the court to either award imprisonment or impose fine, or both. It is the choice of the court which determines whether imprisonment alone should be awarded or fine alone be imposed or both should be awarded. It is thus obvious that it is not obligatory on the court to always award imprisonment as a punishment. Once it is so understood it is difficult to comprehend that a minimum sentence alone thereunder is imposable to which the Probation of Offenders Act would not be applicable. (emphasis supplied)
5. The above result is also achieved when clause (a) is compared with clause (b). For the second or subsequent offence the court is obligated to award imprisonment for a term which may extend to five years and also impose fine. The awardable imprisonment however cannot be less than two years and such fine cannot be less than two thousand rupees, unless for special and adequate reasons, to be mentioned in the judgment of the court, the imprisonment of less than two years is imposed and a fine less than Rs 2000 is imposed. Here there is a compulsion to impose both kinds of sentences, unless the court exercises discretion to do away with imposing any punishment. The limited distinction in the two clauses is prominent."
21. However, the Hon'ble Supreme Court in the ultimate paragraph 6 of the report modified the sentence of the convict by imposing fine only as the case was covered under clause (a) of Section 3 of the Railway Property (Unlawful Possession) Act, 1966 being the first offence of the convict and did not pronounce on the relevance of the Probation of the Offenders Act to the situation.
22. It is not in dispute that the present offence is the first offence of the Petitioner No. 1 and as per Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966, when the offence is the first offence, it is open to the court to punish the convict with imprisonment for a term which may extend to 5 11 years or with fine or with both and in absence of special and adequate reasons to be mentioned in the judgment of the court, the imprisonment shall not be less than one year and such fine shall not be less than Rs.1,000/-. As per Section 3 (b) of the Railway Property (Unlawful Possession) Act, 1966, when the offence is the second or subsequent offence, it is open to the court to punish the convict with imprisonment for a term which may extend to 5 years and also with fine and in absence of special and adequate reasons to be mentioned in the judgment of the court, the imprisonment shall not be less than two years and such fine shall not be less than Rs.2,000/-.
23. The learned Amicus Curiae has submitted that as the present offence is the first offence of the petitioners, it is open to this Court to impose imprisonment or fine or with both and accordingly, looking into the facts and circumstances of the case and the lapse of about 20 years from the date of the incident, he has prayed for modification of sentence to fine instead of imprisonment.
24. This Court finds that the instant case is of the year 2002. The petitioners have faced the rigors of criminal case for a long period and have already remained in custody for more than 3 months; the present age of the Petitioner Nos. 1 and 2 are about 42 years and 44 years respectively and as per the impugned judgements, the present offence is the first offence of the petitioners for which they have been sentenced for the offence under Section 3(a) the Railway Property (Unlawful Possession) Act, 1966.
25. In such circumstances, this Court is of the considered view that the ends of justice would be served if the sentence of the petitioner is modified by imposing fine instead of asking the petitioners to serve the remaining sentence. Accordingly, the sentence of the petitioners is hereby modified and they are sentenced with fine of Rs. 20,000/- each to be deposited before 12 the learned trial court within a period of two months from the date of receipt of a copy of this Judgment by the learned trial court. In case of non-deposit of the fine amount within the aforesaid timeframe, the bail bond furnished by the petitioners shall stand cancelled and the Petitioners would serve the sentence as awarded by the learned trial court.
26. If the aforesaid fine amount is deposited by the petitioners within stipulated timeframe, they will be discharged from their liabilities under the bail bond.
27. Accordingly, with the aforesaid findings and modification of the sentence of the petitioners, this criminal revision petition is hereby disposed of.
28. Pending interlocutory applications, if any, are closed.
Appreciation for Amicus Curiae and Payment:
29. This Court observes that vide order dated 08.07.2021, Mr. Pratik Sen, Advocate was appointed as Amicus Curiae in this case by this Court. This Court records its appreciation for the valuable assistance accorded by the learned Amicus Curiae in final disposal of this case. The Secretary, Jharkhand High Court Legal Services Committee is directed to ensure that the legal remuneration of the learned Amicus Curiae is duly paid to him within a period of 4 weeks upon submission of bills by him.
30. The office is directed to provide a copy of this order to Mr. Pratik Sen, the learned Amicus Curiae and also to the Secretary, Jharkhand High Court Legal Services Committee.
31. Let the lower court records be sent back to the court concerned.
32. Let this order be communicated to the learned court below through FAX /e-mail.
(Anubha Rawat Choudhary, J.) Binit/Mukul