Allahabad High Court
Sheesh Ram S/O Tota Ram (Tota Ram) And ... vs The State And S.G. Singh, ... on 21 April, 2006
Author: R.P. Yadav
Bench: R.P. Yadav
JUDGMENT R.P. Yadav, J.
1. This criminal revision has been preferred by Sheesh Ram and Sharda Nand Pandey against the judgment and order dated 8th October, 1986, passed by Additional Sessions judge, Moradabad, in criminal appeal No. 63 of 1986, confirming the judgment and order of the Judicial Magistrate, Railways, Moradabad dated 7.4.1986, whereby the learned Railway Magistrate convicted the said two revisionists for the offence punishable under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 and sentencing each of them to undergo R.I. for a period of two years and fine of Rs. 5007-. The learned Sessions Judge has modified the sentence and reduced the same to one year R.I. and Rs. 5007- as fine and in default, three months R.I.
2. The occurrence is said to be dated 7.4.1980. It is said that S.I., R.P.F., Shri Ganga Sadhu Singh P.W. 2 along with Shri Sheo Nath Singh, constable, R.P.F. was on patrolling duty in up-hump yard at the Railway Station, Moradabad. It was about 3.10 a.m., when they were near a culvert, they felt some rattling noise at line No. 3 they went ahead and noticed the R.P.F. Guards, the two revisionists were taking two cartoons (Petis) of XXX skipper rums from stationary Wagon No. CR 57627, which was then packed at Railway Line No. 3. They noticed that the said rum cartoons were being taken out after breaking open the northern gate of the Wagon. They caught hold of these two revisionists/accused along with two cartoons of the rum, which was allegedly Railway property having been booked from Unnao to New Delhi for carriage. A memo of recovery was prepared and on that basis a report was registered and after due investigation, the two revisionists were charge-sheeted.
3. The revisionists denied the prosecution allegations and pleaded not guilty to the charge. The prosecution examined nine witnesses in all. P.W. 1, Head Constable, R.P.F. Sheo Nath Singh, P.W. 5 S.I. Shri Ganga Sadhu Singh are said to be the eye witnesses, who had apprehended the two revisionists on the spot while taking away the two rum cartoons from the Wagon. The learned Magistrate believed the evidence of the said witnesses and convicted and sentenced them. The appeal preferred by them against their conviction was dismissed but the sentence was modified and reduced to one year R.I. and Rs. 500/- as fine.
4. It is against these two orders, the present revision has been filed, wherein the order of conviction and sentences passed on the revisionists, have been challenged.
5. I have heard Shri J.N. Chaturvedi, the learned senior counsel for the revisionists, who is assisted by Shri R.C. Yadav, Advocate. I have also heard the learned A.G.A. and examined the record.
6. The learned Counsel for the revisionists has filed written arguments also on 14.5.2002, which is on the record.
7. It is submitted by the learned Counsel that the mandatory provisions for search and seizure were not followed by the arresting officer and there is no compliance of Section 50(1) and 100(3)(7) of the Criminal Procedure Code and Article 22 of the Constitution of India and that the recovery memo does not bear the signature of the accused revisionists.
8. Before examining the merit of the contention advanced by the learned Counsel, it would be relevant to quote the provisions of Article 22 of the Constitution of India which reads as follows:
22(1) No person who is arrested shall be detained in custody without being informed, as soon as may, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
9. Section 50(1) and 100(3)(7) Cr.P.C. reads as follows:
50(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
100(3) Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.
100(7) When any person is searched under Sub-section (3), a list of all things taken possession of, shall be prepared, and a copy thereof shall be delivered to such person.
10. The learned Counsel has also placed reliance on the case of D.K. Basu v. State of West Bengal 1997 SCC (Crl.) Page 92 and Shanna alias Lulla v. State of U.P. and Ors. 1989 (26) ACC 536.
11. In the case of D.K. Basu while dealing with the question of custodial violence, the Hon'ble Supreme Court issued ten directions for the arresting officers, which are meant to serve as preventive measures against illegal arrest and custodial violence. One of these directions is that the police officer carrying out the arrest of the arrestee, shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may either be a member of the family of the arrestee or a responsible person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
12. In the case of Shanna alias Lulla, a Division Bench of this Hon'ble Court while dealing with the provisions of Section 50(1) Cr.P.C. held that every police officer arresting any person without warrant, shall forthwith communicate to him full particulars of the offence for which, he is arrested and the ground for such arrest. The duty is cost on the arresting officer to communicate the full particulars of the offence to the person arrested. It is not for the person arrested merely to draw his own inferences.
13. It would be noteworthy that this observation was made while dealing with a habeas corpus petition against the illegal arrest under Article 226 of the Constitution of India.
14. The learned Counsel has also relied on the case of Subhash Bhandari v. State of U.P, 1986 (23) ACC page 520 at 521. In this case while discussing the requirements of the provisions of Section 50(1) Cr.P.C. and Article 22, the Hon'ble High Court held that "Section 50(1) Cr.P.C. is a new provision in C.P.C. 1973. There was no corresponding provision in the Code of Criminal Procedure 1898. It is noticeable that Section 50(1) Cr.P.C. requires full particulars of the offence or other grounds for his arrest. In a way, these expressions carry the provision of Article 22(1) of the Constitution of India a little further as a limb of procedure established by law under Article 21 of the Constitution of India. If there could ever have a debate about the extent of the requisite information contemplated under Article 21(1) of the Constitution of India, it was set at rest by Section 50(1) Cr.P.C. the section confers a valuable right and a non-conformation to its mandatory provisions is non-conformation to the provisions established by law as held by the Culcutta High Court in the case of Govind Prasad v. State of West Bengal A Division Bench of the Gauhati High Court had arrived at the same view in the case of Ajit Kumar Sarmah v. State of Assam.
15. I have considered over the said submissions. It is true that there is no recital in the recovery memo that copy of the same was given to the revisionists accused and in the evidence of p.w. 2, it has come that no such copy was given yet this would not materially matter or invalidate the prosecution of the revisionists because the directions by the Hon'ble Supreme Court for giving a eopy to the arrestee of the memo was issued on 18th December, 1996, whereas this occurrence took place on 7.4.1980, At that time there was no such direction of the Hon'ble Supreme Court and there is no legal provision contained in any statute for giving a copy of the recovery memo to the accused arrestee in such a matter, where he is caught red handed while committing the crime. Further more, there is another reason that the prosecution and conviction of the revisionists is not vitiated for non-compliance of the aforesaid provisions because the revisionists were arrested while committing theft and stolen articles were found in their possession by the R.P.F. personnel, who were on patrolling duty and who after apprehending them along with stolen property brought them to the outpost, prepared memo of the articles found in their possession and lodged the report. There is no illegality, so far as the prosecution of the revisionists is concerned. Although there is no recital in the recovery memo that they were informed about the grounds of their arrest but such an information is not required when a person it arrested on spot while committing a crime. If a thief while committing crime is informed by a police officer that he is going to arrest him because he is committing the crime of theft, then in that event the thief will make his escape good while the police officer will remain busy in giving information to him of the grounds for his arrest. So when a person is arrested while committing a crime, the provision of Section 50(1) of the Cr.P.C. will not be attracted. Therefore, the aforesaid authorities have no application to the present case, moreover, the said authorities deal with the matter of habeas corpus regarding illegal detention and not with regard to the legality of prosecution. Section 100 of the Cr.P.C. does not apply to this case at all because it is not a case of search. At the cost of repetition it may again be said that it is a case, where the accused were arrested while committing the crime. Therefore, the provision of Section 100(3)(7) Cr.P.C. will not apply and the conviction of the revisionists cannot be challenged on this ground.
16. Next, it was submitted by the learned Counsel that according to the evidence of the P.W. 2, recovery memo was not prepared on the spot but it was prepared on the R.P.F. outpost. It is on record that the R.P.F. outpost is on the same railway station, where the theft was committed. The revisionists were arrested on Railway Line No. 3, near the Wagon, wherefrom the theft of rum cartoons was committed and the revisionists were arrested while taking away the said railway property and it was not possible to prepare a memo on the railway line, where the trains run from both sides and the outpost being at the railway station itself, no fault can be found for the reason that the recovery memo was prepared at the outpost. It has also been submitted by the learned Counsel that the copy of the recovery memo was not given to the revisionists accused. The teamed counsel could not place any law, which require the giving of copy to accused in such a spot arrest matter at the time of occurrence.
17. The learned Counsel has further submitted that the rum cartoons cannot be said to be the railway property because they were not claimed by any one and that no distinguishing marks were decipherable thereon at the time of evidence of the witnesses as deposed to by them in this cross-examination. The evidence of, the two witnesses, namely, p.w. 1 and p.w. 2, which has been found to be reliable by the two courts below coupled with documentary evidence of booking the said consignment clearly shows that the rum cartoons were booked from Unnao to New Delhi. The copy of the relevant bill is also on the record. It was being transported from the Railway and till the rum cartoons were in the custody I of the Railway for being transported from one place to another, they were the railway property. The railway property has been defined in Section 2(1) of the Railway Property (Unlawful Possession) Act, 1966 as follows:
Railway property includes any goods, money or valuable security or animal belonging to, or in the charge or possession of, a railway administration.
18. Undoubtedly, the rum cartoons having been booked from Unnao to Delhi wore railway property and according to the provisions of Section 3 of the Railway Property (Unlawful Possession) Act, 1966, "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 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.
19. The rum cartoons having been booked from Unnao to New Delhi and being in possession of the railway administration while the Wagon carrying the same was stationed at the Railway Line No. 3 in the up-hump yard of Moradabad, Railway station was the railway property and the revisionists having Deon found taking away the said two rum cartoons from the railway wagon were undoubtedly guilty of an offence punishable under Section 3 of the aforesaid Act.
20. The learned Counsel for the revisionists has referred to the case of Abdul Rashid v. State of U.P. 1991 (28) ACC 522 wherein it was held that mere possession is not sufficient to make out an offence under Section 3 of the said Act Reliance has placed on the observations made in para 15 of the report, which shows that the stolen articles were recovered from the land of the revisionists and that it was not proved that the recovery articles were In use and possession of the accused and there was no independent evidence to prove the possession of the accused over the recovered articles. In such circumstances, the accused was acquitted. This case law does not apply to the facts of the case because here the revisionists were arrested while taking away the railway property from the Wagon.
21. In view of the above, there is no illegality in the order impugned in this revision to far as the conviction of the revisionists under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 is concerned. However, considering the facts and circumstances and keeping in view the facts that the revisionists, who are the employees and according to the learned Counsel have lost their job on account of this offence, they deserve to be dealt with leniently so far as the quantum of sentence is concerned. Their appeal was dismissed on 8.10.1986. They were granted bail by this Court on 28.1.1987. They were in jail for about four months. Therefore keeping in view the fact that they have already been deprived of their employment on account of this offence and have also been in jail for about four months....
22. I feel that they may not be sent to jail again and may be let of with the sentence of imprisonment already undergone and a total fine of Rs. 1,000/- on each of the revisionists would be sufficient to meet the ends of justice.
23. In the result, the revision is dismissed and conviction of the revisionists is maintained but the sentences imposed, are modified. They are sentenced with the imprisonment already undergone and a fine of Rs. 1,000/- each which shall be deposited by them within a period of two months from today and in the event of default to pay the fine within the time aforesaid, they shall undergo the sentence of imprisonment as awarded by the appellant court.
24. Let a copy of this order be sent to A.C.J.M. (Railways), Moradabad, through learned Sessions Judge, Moradabad for information and necessary compliance. Record be also sent down forthwith.