Allahabad High Court
Pappu And Another vs State Of U.P. And Another on 2 January, 2020
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- APPLICATION U/S 482 No. - 7682 of 2006 Applicant :- Pappu and another Opposite Party :- State of U.P. and another Counsel for Applicant :- Ashwini Kumar Awasthi, Manish Tiwary Counsel for Opposite Party :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
1. Heard Sri Manu Srivastava, Advocate, holding brief of Sri Ashwini Kumar Awasthi, Advocate, for applicant and learned A.G.A. for State.
2. This application under Section 482 Cr.P.C. has been filed with a prayer to quash proceedings in Complaint Case No. 5190 of 2006, under Sections 3 of Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as "Act, 1966"), Police Station R.P.F., Allahabad, District Allahabad pending in the Court of Additional Chief Judicial Magistrate, Railway, Allahabad.
3. The facts in brief are that on 16.12.2005, Sub-Inspector Onkar Nath Tripathi along with other Police Officials was on duty at Station Area when noticed two persons carrying a heavy Joot bag coming from south to north. Police officials hid themselves and as soon as those two persons along with heavy Joot bag reached near to them, they were restrained and on interrogation they disclosed their name as Guddu, son of Ram Nath and Amar Nath son of Jagdish Prasad. In the heavy Joot bag, Police Team found a black color battery whereupon both the persons got nervous and confessed that they have stolen a battery from stationed coach and taking the battery for disposing of it to a Kabari. They also confessed to have stolen earlier also six batteries and railway iron rail. A Fard was prepared and both these persons were arrested. Thereafter confessional statement of the aforesaid persons was recorded and in furtherance thereof some railway material was claimed to have been recovered from the applicants.
4. It is contended that confessional statement is not admissible evidence. The offence under Act, 1966 was not cognizable and different procedure has been prescribed but the said procedure has not been followed. There was no evidence, whatsoever, to implicate the applicants and, therefore, they have been falsely implicated. The complaint filed against the applicants on the basis of above recovery, i.e., Case No. 5190 of 2006 is illegal and liable to be set aside and the summoning order dated 08.05.2006 passe by Additional Chief Judicial (Railway), Allahabad is liable to be set aside.
5. Learned A.G.A. did not dispute that offences under Act, 1966 are non cognizable but said that recovery of railway property from applicants and statements of co-accused show prima facie involvement of applicants and matter is still pending, hence, it cannot be said that proceedings are liable to be quashed at this stage and the submission no offence is made out or procedure adopted by Investigating Officer of Railway Protection Force is patently illegal.
6. Section 3 of Act, 1966 provides penalty for unlawful possession of Railway property. Section 6 authorizes a superior officer or member of Force to arrest any person who has been concerned in an offence punishable under Act, 1966 or against whom a reasonable suspicion exists of having been so concerned, without an order from Magistrate and without a warrant. Section 7 provides that any person arrested under Act, 1966, shall, if the arrest is made by a person other than the officer of the Force, to forward such person, without delay to the nearest officer of the Force. Section 8 of Act, 1966 provides:
"8. Inquiry how to be made -- (1) When an officer of the Force receives information about the commission of an offence punishable under this Act, or when any person is arrested by an office of the Force for an offence punishable under this Act or is forwarded to him under section 7, he shall proceed to inquire into the charge against such persons.
(2) For this purpose the officer of the Force may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898), when investigating a cognizable case:
Provided that--
(a) if the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate;
(b) if it appears to the officer of the Force that there is no sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the officer of the Force may direct, to appear, if and when so required, before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior."
7. In the present case, railway goods have been found in the possession of applicants and, therefore, complaint under Section 3 of Act, 1966 has been filed after making a detailed inquiry, as is evident from bare reading of the said complaint, Annexure-4 to the application. The question that applicants have been falsely implicated or there is no material is a matter to be examined and tried and cannot be examined at this stage. No evidence can be looked at this stage.
8. After going through the complaint and others documents, I am of the view that at this stage it cannot be said that commission of cognizable offence is not made out or there is any error legal or otherwise in the order passed by Court below against applicants. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Recently in Md. Allauddin Khan Vs. The State of Bihar and others (2019) 6 SCC 107, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under :
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." (emphasis added)
9. Recently, above view has been reiterated by Apex Court in Criminal Appeal No. 175 of 2020 (State of Madhya Pradesh Vs. Yogendra Singh Jadaun and another) decided on 31.01.2020.
10. No material irregularity in the procedure followed by Court below has been pointed out. It is not a case of grave injustice justifying interference in this application at this stage.
11. The application lacks merit and is accordingly dismissed.
Order Date :- 02.01.2020 PS