Bombay High Court
Salim Mohamed Babul Miniyar vs State Of Maharashtra on 31 July, 2000
Equivalent citations: 2001CRILJ58
Author: Pratibha Upasani
Bench: Pratibha Upasani
JUDGMENT Dr. (Mrs.) Pratibha Upasani, J.
1. This Criminal Revision Application is filed by the petitioner/original accused, being aggrieved by the judgment and order dated 19th September, 1994, passed by the Additional Sessions Judge, Malegaon, in Criminal Appeal No. 1 of 1989. By the impugned Judgment and Order, the learned Additional Sessions Judge, Malegaon, dismissed the appeal filed by the appellant/original accused-Salim Mohammed Babul and maintained the conviction and sentence recorded by the Judicial Magistrate, First Class (Railways), Manmad, by his Judgment and order dated 1st July, 1985. The Judicial Magistrate, First Class (Railways), Manmad, had convicted accused No. 1 - Salim for the offence punishable under Section 3(a) of the Railways Property (Unlawful Possession) Act, 1966 and sentenced him to suffer R.I. for one year and to pay a fine of Rs. 1,000/-, in default, R.I. for 6 months. The learned Judicial Magistrate, First Class (Railways), however, acquitted accused No. 2 - Bipinkumar Mohanlal Jobanputra of the said offence, who was arraigned before him as accused No. 2.
2. The prosecution story, in brief, can be narrated as follows :
On 5th July, 1981, at about 1.00 hours to 1.30 hours, some 25-30 persons entered into the impress depot near Laco Shed Manmad and started taking away some Railway Sleepers. One Gavaliram (P.W. 3), who was on duty at that time as a watchman, tried to accost those persons, but they threatened Gavaliram and made their way by taking about sixty sleepers. Gavaliram then informed this incident to his superior Mr. Dongarwal, who was permanent way Inspector at Manmad. Mr. Dongarwal then informed this matter to Railway Protection Force and Government Railway Police, with a request to take necessary action. At about 3.15 hours, Mr. Saini (P.W. 8). Sub Inspector of the Railway Protection Force, Mr. Badgujar (P.W. 7) and R.P.F. staff reached the spot. P.W. 1 Mr. Dongarwal, Permanent Way Inspector was already present there. R.P.F. Staff members searched the surrounding area, but neither Railways property, nor the miscreants were traced. Then, the R.P.F. Staff got divided into two groups. One group consisting of Mr. Saini, Mr. Badgujar and Mr. Pahadiya went in search, in Chandanwadi area of Manmad and the other staff members consisting of Rakshak Jagannath and Rakshak Bismilla Khan went into Bohari Compound area.
3. The prosecution story further is that Rakshaks Jagannath and Bismilla Khan noticed that two persons were carrying one Railway Sleeper. These Rakshaks followed them. The two persons entered into the compound of one shop. However, when they sensed danger, they threw the sleeper in the compound and started running. However, there was light coming from the shop and the Rakshaks could see those persons. The Rakshaks identified these persons whose names were Shivaji and Papya Amir. Shivaji and Papya managed to escape. Rakshaks Bismilla Khan and Jagannath then went into the shop and noticed that accused No. 1 - Salim was sitting in the shop. On enquiries being made with him, he disclosed that he was to purchase the sleeper thrown by Shivaji and Papya. He then also disclosed that he had purchased some more sleepers on that day. On getting this information, Rakshak Jagannath came to Mr. Saini and narrated the incident to him. Then Mr. Saini, Mr. Badgujar, RPF S.I. and Mr. Pahadiya, SRP came to the spot and made enquiries with accused No. 1 - Salim. At this juncture, a formal complaint i.e. First Information Report was lodged by Rakshak Bismilla Khan. Thereafter, accused No. 1 - Salim willingly produced 41 sleepers from inside the shop, which he had purchased on the day of the incident. These 41 sleepers and one sleeper lying in the compound (which was thrown by Shivaji and Papya) were attached under a panchanama, in the presence of two panch witnesses. On enquiries with Salim, he told that he was a servant of Bipinkumar-accused No. 2. Bipinkumar was also called at the time of seizure of the sleepers and he was present at the time of panchanama. After this, all the property was brought to the RPF office and statement of accused No. 1 was recorded. The prosecution has claimed that accused No. 1 voluntarily made his confessional statement (Exh. 46) and admitted that he had purchased the property in question. He also narrated in his statement Exh. 46 that he was a servant of accused No. 2 - Bipinkumar. Thereafter investigation was carried out and complaint was filed in the Court of the Judicial Magistrate, First Class (Railways), Manmad, at Exh. 1. Statement of accused No. 2 was also recorded, which was found not to be helpful to the prosecution.
4. After recording evidence and after hearing both the sides, the learned Judicial Magistrate, First Class (Railways), came to the conclusion that the prosecution had succeeded in establishing, beyond reasonable doubt, that accused No. 1 was in possession of the Railway property viz., 42 sleepers. The learned Magistrate also came to the conclusion that the prosecution had successfully proved that the said possession of accused No. 1 - Salim was unlawful. The learned Magistrate, therefore, gave a finding that accused No. 1 had committed offence under Section 3(a) of the Railways Property (Unlawful Possession) Act. 1966 and convicted him for the said offence and sentenced him to suffer R.I. for one year and to pay a fine of Rs. 1,000/-, in default, R.I. for 6 months. Accused No. 2 came to be acquitted.
5. Being aggrieved by the said judgment and Order, accused No. 1 - Salim filed Criminal Appeal No. 1 of 1989 in the Court of the Additional Sessions Judge, Malegaon, who after hearing both the sides, dismissed the said appeal and confirmed the conviction and sentence recorded against accused No. 1 - Salim, by the Magistrate. Being aggrieved by the same, accused No. 1 - Salim has preferred this Criminal Revision Application under Section 401 of the Code of Criminal Procedure, 1973.
6. I have heard Mr. P.N. Joshi, appearing for accused No. 1, so also Mr. Salvi, the learned A.P.P. appearing for the State. I have also perused record and proceedings which has been called from the lower Courts. In my opinion, both the lower Courts have recorded correct finding as far as guilt and sentence of the accused is concerned. There is no manifest error of law revealed in the judgment.
7. Mr. Joshi submitted that the alleged confessional statement of Salim is hit by Section 162 of the Code of Criminal Procedure and, therefore, is not admissible in law. This submission of Mr. Joshi is, however, not correct in view of the fact that the officer of the Railway Protection Force, making enquiry under Section 8(1) of the Railways Property (Unlawful Possession) Act, 1966, is not a Police Officer conducting an investigation under the Code of Criminal Procedure. This being the true position, the ban under Section 162 of the Code of Criminal Procedure, 1973, against the evidential use of statements, including the prohibition against signing of statements, recorded in the course of police investigation, is not attracted to statements recorded by an officer of the Force, making an inquiry under Section 8(1) of the Act.
8. Recourse can be conveniently taken to the case of Balkishan A. Devidayal v. State of Maharashtra, . In the said case, one of the questions for determination before the Supreme Court was, whether an officer of the Railway Protection Force ("RPF" for short) making an inquiry under the Railways Property (Unlawful Possession) Act, 1966, in respect of an offence under Section 3 of that Act of unlawful possession of the railway property, was a Police Officer for the purposes of Section 25 of the Evidence Act and Section 162 of the Code of Criminal Procedure, 1898 and whether any confession or incriminating statement recorded by him, in the course of an inquiry, under Section 9 of the Act, was inadmissible in evidence. The Supreme Court after elaborate discussion on the powers of the investigating police officer and the powers of the RPF officer making an inquiry under the Railways Property (Unlawful Possession) Act, 1966, came to the conclusion that the officer under the 1966 Act was not a Police Officer for the purposes of Section 25 of the Evidence Act and the confessional statement recorded by him, was admissible in evidence.
9. The primary test applied by the Supreme Court in this case (1980 Cri LJ 1424) (supra) to determine whether an officer under a Special Act is a "police officer" for the purpose of Section 25 of the Evidence Act was, whether that officer had been invested with all the powers exercisable by an officer in charge of a police station under Chapter XIV of the Criminal Procedure Code, 1898 (old Code), qua investigation of offences under that Act, including the power to initiate prosecution by submitting charge-sheet under Section 173 of the Code. The Supreme Court observed that it was not enough to show that he exercised some or even many of the powers of a police officer conducting an investigation under the Code. It further observed that an officer of the RPF making an inquiry under the 1966 Act, cannot, by any stretch of imagination, be called an "officer in charge of a police station" within the meaning of Sections 173 and 190(b) of the Code. It further observed that the mode of initiating prosecution by submitting a report under Section 173 read with Clause (b) of Section 10 of the Code is, therefore, not available to an officer of the RPF, who has completed an inquiry into an offence under 1966 Act. It further observed that the only mode of initiating prosecution of the person against whom he has successfully completed the inquiry, available to an officer of the RPF, is by making a complaint under Section 190(1)(a) of the Code to the magistrate empowered to try the offence.
10. In the present case at hand also, Mr. Saini, who was sub Inspector of RPF, was conducting an inquiry under Section 8 of the Railways Property (Unlawful Possession) Act, 1966. The statement of the appellant/accused Salim Mohamed Babul Miniyar dated 15th July, 1981, came to be recorded by him while conducting an inquiry under Section 8(1) of this Act. However, it cannot be said, by any stretch of imagination, that he was invested with all the powers of officer in charge of the Police Station making an investigation under the Code of Criminal Procedure, 1973, particularly when it is very obvious, that he has no power to initiate prosecution by filing chargesheet before the Magistrate under Section 173 of the Code, which is the clinching attribute of an investigating "police officer". It is this power of investigation, which establishes the direct relationship with the prohibition enacted under Section 25 of the Evidence Act. When he is not conferred with this power, the mere fact that he possesses some other powers, would not make him police officer for the purpose of Section 25 of the Evidence Act. Therefore, it was correctly held by both the lower Courts that the confessional statement recorded by Mr. Saini was admissible in evidence. Confessional statement was, therefore, rightly looked into to bring about conviction of the appellant. There was, therefore, no error of law and both the Courts cannot be faulted with any illegality. In view of this clear position, no interference is called for in the impugned Judgment and Order. Hence, the following order :
Criminal Revision Application No. 243 of 1994 is dismissed. Rule discharged. Interim order dated 11th October, 1994 is hereby vacated. Accused to surrender to bail on or before 31st August, 2000.