Orissa High Court
Dayanidhi Mallik And Anr. vs State on 15 September, 1994
Equivalent citations: 1995CRILJ1331, 1995(I)OLR246
JUDGMENT K.L. Issrani, J.
1. The present revision petition has been filed by the petitioners against the judgment and order dated 18th July, 1992 passed by the Additional Sessions Judge, Baiasore arising out of the judgment and order dated 21-10-1989 passed by Sri S. C. Rath, JMFC, Balasore in 2 (c) CC 21/83 convicting the petitioners under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (for short 'the Act'), The submission of the learned counsel for the petitioners is that in this case, other two accused persons-Kamalakanta Sahoo and Abhiram Mallik were acquitted but the present petitioners were found guilty and sentenced to undergo R. I. for one year.
2. The case of the petitioners is not different from the one who ware acquitted. The further submission is that property seized were not seized from the possession of the petitioners but were seized from water. It cannot be said that the petitioners were in possession of the same. The prosecution has also the knowledge of the property there. Moreover, the circumstantial evidence taken into consideration against the petitioners is not valid, legal and proper. The Courts below have not taken into consideration the fact that such circumstances must be true. For this he has relied on AIR 1957 SC637 Sarwall Singh Ratan Singh v. State of Punjab and also AIR 1984 SC1622 (Sharad Birdhichand Surda v. State of Maharashtra). For the confessionary statement Ext. 7 and as relied on by the prosecution in this case, the learned consel has relied on the principles laid down in 1992 Cri. LJ 1688 (N. S. H. Krishna Prasad and etc. v. Directorate of Enforcement, Loknayak Bhawan, Khan Market, New Delhi and Ors.) where n it has been held that the warning must be given to the person giving such confessionary statement. The further submission is that this confessionary statements recorded after the period of about 15 days from the date of arrest are of no value and were obtained under duress.
3. The learned counsel for the State vehemently opposes the submission of the learned counsel for the petitioners. He relies on the principles laid down in AIR 1981 SC 379 (Balkishan A Devidayal v. State of Maharashtra) and AIR 1981 SC 635 (The State of Uttar Pradesh v. Vyas Tewari). For the principle that the officers are two but enquiry under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 (for short 'the Act') is not the Police Officer, the person arrested under Section 6 of the Act incriminating statements made by him during enquiry under Section 8, the protection under Section 20(3) of the Constitution of India is not available to him.
4. The language of Section 3 of the Act is reproduced below :
"3. Penalty for unlawful possession of railway property - 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;
(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."
5. According to Section 8 of the Act though powers of the Officer-in-charge of the Police-Station are conferred on the officer of the Railway Protection Force, but all powers have not been conferred on him as in the case of an officer-in-charge of the police station as to particularly not, he has no power to initiate the prosecution by filing a charge-sheet before the Magistrate, Under Section 173 of the Code of Criminal Procedure, 1908 which has been held to be the clinching attribute of an Investigating "Police Officer". It is also the settled law that an officer of the Protection Force makes an enquiry under Section 8(1) of the Act is held to be not a police officer conducting an investigation under the Criminal Procedure Code. That being so, it is to be seen whether the confessionary statements made before him by the petitioners to an officer of the Railway Protection Force cannot be said to be legal, valid and proper - The character of the enquiry is different from that of investigation under the Code. The official status and powers of an officer of the Force and the manner of enquiry under the Act is different on material aspects from offices of the Police officers conducting an investigation under the Code. In AIR 1981 SC 635 (supra) also it has been held that an officer of Railway Protection Force is not a Police Officer conducting investigation within meaning of Section 162 of the Code of Criminal Procedure.
6. Regarding possession, the learned counsel for the petitioners raised a point that the seized wire was not seized from the petitioners, AIR 1972 SC 1756 (Gunawantlal v.The State of Madhya Pradesh) which is a case under the Arms Act, it has been stated therein that possession need not be physical possession but can be constructive having power and control over the gun. In AIR 1979 SC 1825 (The State of Maharashtra v. Viswanath Tukaram Umale and Ors) which was a case under the Act, it has been held that it is true that the gravemen of the offence under Sac. 3 of the Act is the "possession" of the property, but it need not necessarily be a subsisting possession, and it is sufficient if the accused was proved to "have been in possession" of teat property at any point of time. But for the requirements of the proof under this section, it has been held that the essential requirements of Section 3 are that (i) the property in possession 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. In 1990 Cr LJ (Cal) 2449 (Janardhan Shaw v. The State) which was also a case under the Act, the Courts below have come to a finding that it was a Railway Property which was stolen.
7. In the present case, the prosecution witnesses, PW7, P.I., RPF, along with his staff went to the spot on 11-3-1983 and during investigation got reliable information that the culprits after having committed the it are in the water under Railway bridge. They also got further information that in that night, there was a chance of removal of those wire from the place of concealment. Accordingly, they lay in anguish waiting in for the culprits to come. While they were waiting, the appellants along with two others appeared in the scene and tried to recover wire from the water. Seeing this, PW 7 along with his staff gave a chase and caught hold of the appellants Property was held by both the Courts to be Railway Property and seized from the possession of the petitioners.
Annexure-1. Probably, evidence and also the findings that the wire was seized from the petitioners cannot be said to be wrong or erroneous. The fact that the accused parsons were found there trying to take out the seized wire at about 2-45 a.m. goes to show nothing but the fact that the accused persons had knowledge that it was there. It can safely be presumed that the accused being either thief or in possession of the stolen property had put the same under water in order to take it out at the appropriate time in less hours.
8. Further besides the seizure memo, Ext. 1, reliance has beer placed on confessionary statements, Exts.7 and 8 given by the petitioner, The submission of the learned counsel for the petitioner is that the confessionary statements of the accused were obtained under duress and are not admissible. For this proposition he has relied on 1983 Cri LJNOC 198 (Orissa) (State of Orissa v. Kapildas Singh) and in 1992 Cri LJ 1888 (N. S.R. Krishna Prasad and etc v. Directorate of Enforcement, Loknayak Bhawan, Khan Market, New Delhi and others) it has been held that while recording the statement under Section 164. Cr PC, the Magistrate must administer warning or caution as contemplated under Section 164(2), CrPC, to the concerned person that it Will be used against him. This is not the case here. In this case, there was also nothing on record to hold that these statements Exts.7 and 8 were obtained under duress except the fact that they were under arrest and hand - cuff. Although Ext. 1 shows the place of seizure as under water but also shows that it was seized from the present petitioners. Mere fact that other accused persons have been acquitted will not be a ground for the acquittal of the present petitioners as the property seized was from them and not from the other accused acquitted. Ext. 1, seizure memo has been amply proved. Therefore, the rulings cited by the learned counselor the petitioner in this case are not applicable to the facts of the present case. Consequently, the revision petition has no force and is accordingly, dismissed.