Delhi District Court
State vs . Umesh Etc. on 21 September, 2013
IN THE COURT OF SH. LOVLEEN,
METROPOLITAN MAGISTRATE 03 (CENTRAL), DELHI
STATE Vs. UMESH ETC.
C.C. NO. 12/04
P.S. RPF/DKZ
Unique Case ID No. 02401R5941072004
Date of Institution: 02.12.2004
Date of reserving judgment: 21.09.2013
Date of pronouncement: 21.09.2013
JUDGMENT U/S 355 Cr.P.C.
a)Date of offence : 06.10.2004
b)Offence complained of : U/s 3RP(UP)Act.
c)Name of accused, his parentage : A1) Umesh (Already Convicted)
& residence S/o Sh. Rajender Singh
R/o Jhuggi no. 258, J.J. Colony, Wazirpur,
Delhi.
A2) Raj Kumar
S/o Sh. Makhan Singh
R/o J55A, Ashok Vihar, Delhi.
A3) Rakesh (Already Convicted)
S/o Bucha Singh
R/o H. No. 363, Village Wazirpur, Delhi.
d)Plea of accused : Pleaded not guilty
e)Final Order : Acquitted
JUDGMENT:
1. This is a complaint case filed by the officials of Railway Protection Force (RPF) under section 3 of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as 'the Act'), wherein it is alleged that one person namely C.C. No. 12/04 1 of 15 Umesh S/o Rajender Singh (i. e. the accused) was apprehended by an RPF team consisting of PW IPF Ajay Jyoti Sharma, PW Ct. Dalbir Singh and Ct. Rajroop Singh on 06.10.2004 near Km No. 4/19 at around 17.10 hrs (within the jurisdiction of RPF post DKZ) upon suspicion while in possession of 12 pendrol clips. The said articles were discovered to be railway property which was reasonably suspected of having been stolen or unlawfully obtained. The railway property was seized, accused Umesh was arrested and personally searched vide memo Ex. PW2/A. He made disclosure statement Ex. PW2/B and confessional statement Ex. PW2/D whereby he admitted his guilt. Pointing out memo Ex. PW2/C was prepared. The accused made a disclosure that he could get the relevant person arrested, to whom he usually sells the railway property. Acting upon the said disclosure, the RPF officials then reached at Murga Market, Village Wazirpur, Delhi and arrested the accused Raj Kumar from his scrap shop. From the said shop of accused Raj Kumar seven plastic kattas containing 154 pendrol clips were recovered. Recovered articles were seized, said accused was arrested and personally searched vide memo Ex. PW2/E. Site plan Ex. PW4/A was prepared and confessional statement Ex. PW2/F of accused Raj Kumar was recorded. The scrap shop of accused Raj Kumar was handed over to two acquaintances of the said accused. Both the accused persons namely Umesh and Raj Kumar were then taken to RPF post and the present case was registered against them vide DD no. 47 dated 06.10.2004, Ex. PW5/A. In the meantime, a theft memo regarding theft of 12 pendrol clips was also received by the RPF.
Efforts were made to arrest the coaccused Rakesh (stated to have been the partner of accused Raj Kumar in the scrap shop). Later on coaccused Rakesh was arrested and personally searched on 23.10.2004 vide memo Ex. PW4/B. He made disclosure and confessional statements Ex. PW4/C and PW4/E respectively.
All the recovered articles were got verified from the railway expert and who C.C. No. 12/04 2 of 15 gave a report Ex. PW1/B certifying the recovered articles to be railway property. Value of the same was assessed at Rs. 6000/. After the conclusion of enquiry, the present complaint was filed in the court against all the three accused persons namely Umesh, Raj Kumar and Rakesh.
2. Since the present complaint was filed by the public servant in writing, recording of presummoning evidence was dispensed with. Precharge evidence was lead wherein the complainant examined PW1 Kamal Kumar Sharma (Railway Expert), PW2 IPF Ajay Jyoti Sharma (Recovery Witness), PW3 ASI Sumer Singh (Recovery Witness) and PW4 SI Ram Karan Singh (Recovery Witness).
3. On the basis of precharge evidence so lead, charge for the offence under section 3 of the Act was framed against all the accused persons vide order dated 25.05.2005. Accused Umesh plead guilty and was convicted for the offence punishable u/s 3 of the Act. He was sentenced to the period already undergone by him.
Remaining coaccused plead not guilty and claimed trial instead. During trial, the accused Rakesh Kumar preferred an application for plea bargaining. He was also convicted on his plea of guilt and was sentenced separately vide order dated 20.07.2011. Trial then proceeded further against the accused Raj Kumar only.
4. At the trial, in terms of Section 246 Cr. P.C., the witnesses already examined in precharge evidence were recalled for crossexamination in postcharge evidence. Additionally, prosecution examined PW5 Ct. Ram Rattan (Recovery Witness) and PW6 Ct. Usman Khan (Recovery Witness) in postcharge stage.
5. PW 1 Kamal Kumar Saxena issued memo Ex. PW1/A about the theft of 12 pendrol clips between Subzi Mandi railway station and Azadpur railway station, Km no. 4/1517. He also examined the case property at the instance of EO and then issued verification report Ex. PW1/B. He identified the case property in the court.
6. PW2 IPF Ajay Jyoti Sharma, PW3 ASI Sumer Singh, PW4 SI Ram Karan, C.C. No. 12/04 3 of 15 PW5 Ct. Ram Rattan and PW6 Ct. Usman Khan were a part of the RPF team which apprehended the accused. These witnesses deposed about the apprehension of the accused persons while in the possession of the railway property which was seized and accused persons were arrested.
7. Statement of the accused Raj Kumar under section 313 CrPC was recorded on 21.09.2013 wherein he denied all the allegations and pleaded innocence. He stated that nothing was recovered from his possession and he was falsely implicated in the present case. He claimed that he was not the owner of the said shop and had nothing to do with the railway property recovered from the said shop. On the relevant day, he had gone to the said shop of accused Rakesh to enquire about the well being of his parents (Raj Kumar) as accused Rakesh belongs to the same village as him and had returned from his village just two days ago. He (Raj Kumar) was present there to enquire about his parents but was unfortunately apprehended by the RPF as the accused Rakesh was not available at his shop at the time of raid. However, he chose not to lead any evidence in defence.
8. It is in these circumstances that the Ld. PP for RPF has argued that the prosecution/complainant has been able to prove its case beyond reasonable doubt against the accused. He has primarily submitted that all the witnesses have supported its case and no contradiction can be seen in their testimony.
9. On the other hand, Ld. counsel for accused has submitted that the entire prosecution case is false. It is argued that the entire case is based only on the testimony of police officials who are interested witnesses and despite availability of the public persons, none of them were joined in the proceedings at any stage. A prayer for acquittal has been made.
10. I have heard the arguments advanced by the Ld. PP for RPF as well as the Ld. DLSA counsel and have meticulously perused the material available on record.
11. The present case has been filed under Section 3 of the Act which reads as C.C. No. 12/04 4 of 15 follows:
"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 one year and such fine shall not be less than one thousand rupees...".
12. The Hon'ble Supreme Court has laid down the law in precedents titled as State of Maharashtra v. Vishwanath Tukaram Umale [AIR 1979 SC 1825] and also in Om Prakash v. State of UP [AIR 2008 SC 1112], that the following ingredients need to be established by the prosecution in such cases to establish the guilt of the accused:
(i) the property in question should be railway property,
(ii) it should reasonably be suspected of having been stolen or unlawfully obtained, and
(iii) it should be found or proved that the accused was or had been in possession of that property.
13. Before embarking upon the evaluation of the evidence available on record, it would be appropriate to discuss the background leading to the creation of RPF and conferment of powers upon RPF to initiate proceedings under the Act. The RPF was constituted by the Parliament of India vide Railway Protection Force Act 1957 (hereinafter referred to as the "RPF Act"). The preamble of said RPF Act records the reason for constitution of RPF as an armed force of Union as "to provide better protection and security to railway property, passengers area and passengers and for C.C. No. 12/04 5 of 15 matters connected therewith". Despite the enactment of RPF Act 1957, the pilferage of railway materials could not be checked effectively. Accordingly, the Railway Property (Unlawful Possession) Act 1966 was enacted. This Act, as amended upto date, authorizes certain members of RPF to arrest any person found in unlawful possession of railway property, to conduct an inquiry in this regard u/s 8 (of the Act) and then to file a complaint u/s 3 (of the Act). The inquiry has been deemed to be a "judicial proceeding" vide Section 9 (4) of the Act for the purposes of Sections 193 & 228 of the Indian Penal Code (IPC).
In order to regulate the powers of RPF, conferred under the Act, the Railway Board issued order no. 73 SPL/REGN/CH.XXV dated 09.07.1975 whereby all the procedures to be followed from the moment of arrest of an offender (under the Act) till the forwarding of the complaint for trial has been laid down.
Further rules were laid down with the promulgation of Railway Protection Force Rules 1987 (hereinafter referred to as "RPF Rules") which prescribed under rule no. 222 that all the crimes affecting railway property have to be entered either in the Localized Crime Register or in Unlocalized Crime Register. (Localized Crimes are those where the actual place of offence is prima facie apparent from the inspection of the scene and Unlocalized crimes are those where actual place of crime cannot be immediately known or ascertained). The relevant part of said rule is reproduced below for ready reference :
222.5.... For the "Localized Crime Register", two summaries shall be prepared one shall be cause wise and the other commoditywise. The causewise summary shall have its sub heading as :
(a) Running Train Thefts;
(b) Yard Thefts;
(c) Goods Shed, Parcel godowns and Platform Thefts;
(d) Pilferages;
(e) Thefts of fittings from Rolling stock;
(f) Thefts of Railway Material including coal C.C. No. 12/04 6 of 15 (except theft of fitting from rolling stock);
(g) Miscellaneous;
Each summary may have further subclassifications as may be prescribed through the Directives.
Similarly, under Rule 223 of RPF Rules, it has been provided that all seizures or recoveries of railway property shall be entered in malkhana register and an entry to that effect has to be made in the concerned crime register. It has been further provided under rule 223.2 of the RPF Rules that where the seized property cannot be linked to the railway property for which theft or shortage memo has been issued, the same shall be entered in Railway Property (Unlawful Possession) Act register. These rules categorically imply that the RPF is under an obligation to make the necessary entries in its records/registers regarding any intimation about the theft of any Railway Property.
14. In the present case, the RPF has not followed the procedure laid down by the statutory bodies to regulate the inquiry anticipated u/s 8 of the Act as the RPF officers who allegedly apprehended the accused Raj Kumar red handed not only prepared the recovery memo (vide which the case property was allegedly seized from the possession of accused), but also the disclosure statement, the pointing out memo, the confessional statement and the site plan. Thereafter, the said RPF officials went on to take the accused Raj Kumar to the concerned RPF post and get recorded the roznamcha entry whereby all the proceedings held by them were recorded. This conduct of the said RPF officials is in direct violation of the Railway Board's order dated 09.07.1975 (as mentioned before in this judgment) which prescribes, under rule no. 7, that the apprehending RPF officials were to prepare only a recovery memo and then bring the entire facts and circumstances into the notice of officer Incharge of the RPF post. Thereafter, the said apprehending RPF officials ought to have handed over the accused alongwith case property recovered and the recovery memo to the officer Incharge of the concerned RPF post. The C.C. No. 12/04 7 of 15 officer Incharge concerned should have then directed the inquiry as anticipated u/s 8 of the Act. In this case, a substantial part of inquiry qua accused Raj Kumar was conducted by the RPF officials who apprehended the accused. The inquiry officer's role was negligible as he merely got the case property verified and then prepared/collected the remaining documents available on record. In these circumstances, chances of prejudice to the accused Raj Kumar at the hands of apprehending RPF officials could not be ruled out in view of the fact that railway property is lying unclaimed at most of the times.
Not only this, the RPF then failed to make the necessary entries in the Localized Crime Register or the Unlocalized Crime Register at the time of alleged apprehension of accused Raj Kumar alongwith case property. This court cannot lose sight of the fact that security agencies like the RPF have been granted wide powers for the apprehension and arrest of offenders. This court is further aware of the fact that railway property is lying strewn all across the length and breadth of the country whereever railway network is available and so in order to channelize the powers and to restrict their misuse, certain rules regarding the conduct and procedure of the security agencies have also been prescribed. In the present case the RPF has blatantly violated the mandate of rules 222 and 223 of RPF Rules 1987 by not making the necessary entries, thereby bringing its motives under a cloud of doubt. At this juncture, it would be relevant to refer to a case law reported as Rattan Lal V/s State, 1987 (2) Crimes 29 the Hon'ble Delhi High Court wherein it has been observed that :
"if the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with C.C. No. 12/04 8 of 15 and the least that can be said is that it is so done with an oblique motive. "
15. It is further pertinent to mention here that the RPF proceeded to hold an inquiry u/s 8 of the Act against the accused without making any entry in the Localized Crime Register or Unlocalized Crime Register. Admittedly, the inquiry is deemed a "judicial proceeding" u/s 9(4) of the Act. If rule 8 of the Railway Board order dated 09.07.1975 (as referred to in the aforegoing paragraphs) is read in conjunction with the RPF rules, then it is apparent that the inquiry could have been undertaken only after making the entries in the prescribed crime registers.
Although a roznamcha entry was made after the apprehension of the accused and the recovery of railway property, however the same does not appear to be a sufficient compliance of the procedural rules. Upon reading the RPF rules carefully in conjunction with rule no. 8 as provided under Railway Board's order no. 73 See.Spl/Regn/Ch.XXV dated 09.07.1975 (as referred to in the aforegoing paragraphs) it is apparent that the inquiry u/s 8 of the Act is to be conducted subsequent to the registration of case in the concerned Crime Register. In the present case the inquiry was initiated on the basis of roznamcha entry after ignoring the mandatory procedural rules. The entry in Localized/Unlocalized Crime Register is the foundation of the inquiry anticipated u/s 8 of the Act. However, the prosecution has not proved the entries made in the Localized/Unlocalized Crime Register during trial. Since the RPF has failed to lay down the foundation of the inquiry, the necessary corollary is that the inquiry conducted by the EO has to be viewed with suspicion, moreso, when the inquiry anticipated u/s 8 of the Act is a "judicial proceeding" as per Section 9(4) of the Act. In this regard the observations made by the Privy Council in Nazir Ahmed Vs KingEmperor AIR 1936 Privy Council 253(2) are very relevant. It was held in Nazir Ahmed's case (Supra) that "where a power is given to do a certain thing in a certain way, the thing must be C.C. No. 12/04 9 of 15 done in that way or not at all. Other methods of performance are necessarily forbidden". Applying the ratio of Nazir Ahmed's case (Supra), it has to be necessarily held that the inquiry conducted by the RPF is rendered vitiated for the absence of proof of entries in Localized/Unlocalized crime registers. Consequently all the proceedings conducted after the recording of roznamcha entry lose their value. Inquiry undertaken in this case by the RPF is devoid of legal foundation and the necessary corollary is that the proceedings conducted u/s 8 of the Act are null and void. In view of the abovesaid observations this court is not inclined to uphold the argument raised by the Ld. PP to the effect that the maintenance of Localized/Unlocalized Crime Register has nothing to do with the enquiry anticipated u/s 8 of the Act. Moreso when this argument renders the actual intent of the statutory bodies, behind the promulgation of the relevant Rules, redundant. The prosecution has not proved any other document on record in this regard.
16. The deliberate noncompliance of prescribed rules by the RPF during investigation further casts a duty upon this court to scrutinize the evidence adduced on record by the complainant pertaining to the facts prior to the recording of roznamcha entry with extra caution and circumspection. Reason being the fact that there is no provision for sending the information about the arrest of any person by the RPF to the Magistrate concerned. The RPF merely produces the accused before the Magistrate for seeking judicial custody but does not furnish the copies of any entry made in the Loclized/Unloalized Crime Register. This flawed practice makes the common man vulnerable to the whims and fancies of RPF. Infact the person apprehended by the RPF is never revealed as to under which case number he has been apprehended/booked. Although a copy of the recovery memo is stated to have been supplied to the accused at the relevant time but the same is not sufficient for the accused to get complete information about the case number which has been registered against him by the RPF. More over the case property is sealed, unsealed C.C. No. 12/04 10 of 15 at the RPF post for verification with the seals of RPF officials without any measure to check the misuse of seal. In the present case the verification witness/PW1 admittedly sealed the case property with the seal of RPF officials. This malpractice opens the doors of manipulations by the RPF at its will.
17. The case of the prosecution has many other weaknesses apart from the above mentioned technical shortcomings. The prosecution projects the DD no. 47 Ex. PW5/A as the entry made in the roznamcha register after the arrival of the RPF staff consequent to the alleged apprehension of the accused Raj Kumar. However, the prosecution has not proved the relevant departure entries of the RPF staff vide which they left the RPF post for patrolling the area and later on allegedly apprehended the accused red handed. There is no justification forthcoming on behalf of RPF, to exclude the departure entries. Equally, important is the fact that the RPF failed to associate any public person at any stage of enquiry before the filing of present complaint. Infact, the witnesses examined have not deposed even a word about any attempt made by RPF to associate any independent witness to the recovery proceedings. It is not disputed that the place of alleged arrest of the accused is a place frequented by public persons. Infact in this case the RPF officials who allegedly apprehended the accused Raj Kumar from his shop handed over the said shop to two public persons namely Ramjani and Munna but failed to associate them during the recovery proceedings without any justification. This further makes the recovery doubtful in view of the observations made by the Hon'ble Supreme Court in Ritesh Chakarvarti Vs State of Madhya Pradesh, (SC)2007 (1) SSC (Crl.) 744, wherein it has been observed that:
"If it was a busy place, the officers would expectedly ask those to be witnesses to the seizure who were present at the time in the place of occurrence. But, not only no such attempt was made, even nobody else who had witnessed the occurrence was made a witness. Even their names and addresses had not been taken".
C.C. No. 12/04 11 of 15
18. Further more, it is interesting to note here that the RPF official who allegedly apprehended the accused along with the case property, did all the documentation (i.e. preparation of seizure/arrest memo, disclosure statement, confessional statement) at the spot of apprehension of accused, but has nowhere explained as to why he was carrying the papers, stamp pad etc. while being on patrolling duty. It is not disputed that the patrolling parties of RPF are not obliged to carry the articles mentioned above while leaving the posts for patrolling. It is difficult to understand as to why the RPF official concerned was carrying the abovesaid articles in this case. There is no explanation as to how the said RPF official could complete/fill the said documents without any hard surface to place the documents on, as none of the documents available on record bear any mark of damage which is bound to occur in the absence of any hard surface to place the documents on at the time of scribing the proceedings upon them. This court is unable to comprehend the suspicious conduct of the said RPF official. It is difficult to believe that the documentation allegedly done by the RPF official was in fact done at the spot of apprehension.
19. Moreover, the witness PW1 who issued the theft memo Ex. PW1/A has deposed in the court that 12 pendrol clips were found missing on 06.10.2004 between Subzi Mandi railway station and Azadpur railway station, Km no. 4/1517. As per the present complaint the said 12 pendrol clips were recovered from the possession of coaccused Umesh (already convicted) before the apprehension of accused Raj Kumar. Apparently, the RPF has not placed on record any material to show that 154 pendrol clips allegedly recovered from the accused Raj Kumar were a stolen property. Even if the testimony of recovery witnesses is presumed to be a gospel's truth qua the recovery of 154 pendrol clips from the possession of accused Raj Kumar still in the absence of any material to show that the said pendrol clips were reasonably suspected of having been a stolen or unlawfully obtained property (as required u/s 3 of the Act), the accused Raj Kumar could not be convicted of the C.C. No. 12/04 12 of 15 offence punishable u/s 3 of the Act as mere possession of railway property is not sufficient for conviction. The prosecution is under an obligation to prove that the recovered property was reasonably suspected to have been stolen or unlawfully obtained as ruled by the Hon'ble Apex Court in State of Maharashtra v. Vishwanath Tukaram Umale [AIR 1979 SC 1825] and also in Om Prakash v. State of UP [AIR 2008 SC 1112]. The prosecution has miserably failed to adduce any evidence in this regard. On this short ground alone the accused Raj Kumar is liable to be acquitted.
20. Lastly, the only material that is left on record against the accused is his confessional statement allegedly recorded by the RPF officials at the spot of apprehension. Ld. PP for RPF has argued that the confessional statement made by the accused to RPF is admissible in evidence. No doubt the confessional statement recorded by RPF officials is admissible in evidence as observed by the Hon'ble Apex Court in Bal Kishan A. Devi Dayal vs. State of Maharashtra, AIR 1981 SC
379. However, the observations made by the Hon'ble Court in Bal Kishan's case do not, in the considered opinion of the court, preclude this court from assessing the attending circumstances to ensure that the confessional statement was voluntary in nature or not. It is not disputed that the accused was apprehended after a brief chase by the RPF Officials who are presumed to have been uniformed and probably armed at the relevant time. This court fails to understand as to how a person allegedly apprehended by uniformed and armed RPF Officials (whose uniform is identical to the one worn by local/State police) could be free from any fear, mental pressure or be even headed at the time of making the alleged confessional statement or could confide in the RPF officials who were admittedly unknown to him. In fact the recovery memo and the confessional statement of accused Raj Kumar contain a recital whereby the accused seeks to be forgiven by the apprehending RPF officials. Apparently the accused could not be presumed to be free from any undue influence.
C.C. No. 12/04 13 of 15 Moreover, the witnesses who proved the alleged confessional statements, are the persons who allegedly apprehended the accused and none of the said witnesses have reproduced the exact words stated by the accused at the relevant time which further brings their testimony under a cloud of doubt as per the observations made by Hon'ble Apex Court in C.K. Raveendran, Appellant v. State of Kerala, Respondent, AIR 2000 Supreme Court 369 wherein it has been laid down that the witness of an extra judicial confession has to state the exact words used by the accused at the relevant time. The confessional statement of accused was recorded by the same RPF officials who were a part of the team which allegedly apprehended the accused redhanded. In the totality of the circumstances, this court could not reasonably believe the absence of any pressure upon the accused at the relevant time. This court has already held in the preceding paragraphs that the documentation done at the spot by the RPF officials is not entirely free of doubts. Extra judicial confessions like the one in hand are always considered to be a weak piece of evidence. In the absence of any corroborative material and the absence of any public/independent witness who could depose about the sanctity of the confessional statement available on record, this court is not inclined to act upon the same and convict the accused.
21. In view of the above mentioned observations, this court is of the considered opinion that prosecution fails to prove the charges against the accused beyond any reasonable doubt as not only the recovery of the case property is clouded with doubts, even the procedural requirements have not been complied with by RPF without any justification as discussed in the preceding paragraphs. It is a settled legal preposition that in case of doubt, benefit shall be given to the accused. The accused Raj Kumar deserves benefit of doubt and is accordingly acquitted of all charges.
C.C. No. 12/04 14 of 15
Announced in the open court
this 21st day of September 2013.
LOVLEEN
MM03 (Central), Delhi
C.C. No. 12/04 15 of 15