IN THE COURT OF SH. PAWAN SINGH RAJAWAT, METROPOLITAN MAGISTRATE 07 (CENTRAL), DELHI STATE Vs. SURENDER @ BHOLI CC. NO. 19/2009 P.S. RPF/DKZ Unique Case ID No. 02401R0689752009 Date of Institution: 22.09.2009 Date of reserving judgment: 28.07.2014 Date of pronouncement: 28.07.2014 JUDGMENT U/S 355 [ACT] a)Date of offence : 10.08.2009 b)Offence complained of : U/s 3RP(UP)Act. c)Name of accused, his parentage : [ENTITY] @ Bholli & residence S/o Hari R/o Jhuggi no C73/111, Peer Baghicha, Subzi Mandi , 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] of the [ACT] (hereinafter referred to as 'the Act'), wherein it is alleged that on 10.08.2009 at about 19:50 hrs one person i. e. PS RPF / DKZ accused [ENTITY] was apprehended by an RPF staff near siding line, Eastern Side, km no 2/28 in the area of Subzi Mandi while in possession of 26 pendrol clips (railway property) which was valued Rs 1300/ belonging to railway department reasonably suspected of having been stolen or unlawfully obtained.
2. Since the present complaint was filed by the public servant in writing, recording of pre summoning evidence was dispensed with. Precharge evidence was lead wherein the complainant examined PW1 ASI [ENTITY] and PW2 [ENTITY], J.E (Pway), PW3 [ENTITY] Man), PW4 ASI [ENTITY], PW5 Ct. [ENTITY].
3. On the basis of precharge evidence so lead, charge for the offence under [SECTION] of the Act was framed against the accused vide order dated 22.11.2012 to which he pleaded not guilty and claimed trial.
4. At the trial, in terms of [SECTION] [ACT], the witnesses already examined in precharge evidence were recalled for crossexamination in postcharge evidence qua accused.
5. PW1 and PW5 are part of patrolling party which apprehended the accused while the found in possession of railway property. PW1 and PW4 stated about the seizure of case property vide EX PW1/A as well as arrest and disclosure statement of accused vide Ex PW1/B and PW1/D . PW1 also stated that vide DD entry no 54 i.e. EX PW1/E the case was registered against the accused and further inquiry was made by ASI [ENTITY].
6. PW2 issued the theft memo as Ex PW2 / A and also stated that he prepared verification report Ex PW2/B .
7. PW3 stated that on 11.08.2009 during the checking he found 26 pendrol clips missing between Km No 2/24 and 2/26 on down line.
8. PW4 stated that he get the case property verified from expert and filed the complaint PS RPF / DKZ vide Ex 4/A.
9. Statement of the accused under [SECTION] [ACT] was recorded on 28.07.2014 wherein he denied all the allegations and pleaded innocence. He stated that nothing was recovered from his possession. He claimed that he has been falsely implicated in the present case. However, he chose not to lead any evidence in defence.
10. 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.
11. On the other hand, Ld. DLSA 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.
12. 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.
13. The present case has been filed under [SECTION] of the Act which reads as 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 PS RPF / DKZ fine shall not be less than one thousand rupees ".
14. The Hon'ble Supreme Court has laid down the law in precedents titled as [PRECEDENT] and also in [PRECEDENT], 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.
15. 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 [ACT] (hereinafter referred to as the "[ACT]"). The preamble of said [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 matters connected therewith". Despite the enactment of [ACT], the pilferage of railway materials could not be checked effectively. Accordingly, the [ACT] was enacted. This Act, as amended uptodate, authorizes certain members of RPF to arrest any person found in unlawful possession of railway property, to conduct an inquiry in this regard u/[SECTION] the Act) and then to file a complaint u/[SECTION]of the Act). The inquiry has been deemed to be a "judicial proceeding" vide [SECTION] of the Act.
PS RPF / DKZ 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 [ACT] (hereinafter referred to as "[ACT]") which prescribed under [SECTION] 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 subheading 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 (except theft of fitting from rolling stock);
(g) Miscellaneous;
Each summary may have further subclassifications as may be prescribed through the Directives.
Similarly, under [SECTION] of [ACT], 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 [SECTION] PS RPF / DKZ of the [ACT] 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 [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.
16. In the present case, the RPF has not followed the procedure laid down by the statutory bodies to regulate the inquiry anticipated u/[SECTION] of the Act as the RPF officers who allegedly apprehended the accused 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, the site plan. Thereafter, the said RPF officials went on to take the accused 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 official is in direct violation of the Railway Boards order dated 09.07.1975 (as mentioned before in this judgment) which prescribes, under [SECTION], 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 officer Incharge concerned should have then directed the inquiry as anticipated u/[SECTION] of the Act. In this case, a substantial part of inquiry was conducted by the RPF officials who apprehended the accused. The inquiry officer's role was negligible as he merely got the case property identified and then prepared the remaining documents available on record. In these circumstances, chances of prejudice to the accused at the hands of apprehending RPF official PS RPF / DKZ 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 either at the time of alleged apprehension of accused alongwith case property or at the time of receipt of theft memo (which theft memo was received by the RPF on the day of alleged apprehension of accused). 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 [SECTION] and [SECTION] of [ACT] 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 [PRECEDENT] 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 and the least that can be said is that it is so done with an oblique motive. "
17. It is further pertinent to mention here that the RPF proceeded to hold an inquiry u/[SECTION] of the Act against the accused without making any entry in the Localized Crime Register or PS RPF / DKZ Unlocalized Crime Register. Admittedly, the inquiry is deemed a "judicial proceeding" u/[SECTION] of the Act. If [SECTION] 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. In this regard, the observations made by the Privy Council in [ENTITY] Vs KingEmperor AIR 1936 Privy Council 253(2) are very relevant. It was held in [ENTITY]'s case (Supra) that "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden". Inquiry undertaken in this case by the RPF is devoid of legal foundation and the necessary corollary is that the proceedings conducted u/[SECTION] of the Act are null and void. 18 The deliberate violation of prescribed rules by the RPF since the alleged apprehension of accused till the completion of the inquiry casts a duty upon this court to evaluate the evidence adduced on record against the accused with extra caution and circumspection.
19. The case of the prosecution has many other weaknesses apart from the above mentioned technical shortcomings. The prosecution projects the DD Ex. PW1/E as the entry made in the roznamcha register after the arrival of the RPF staff consequent to the alleged apprehension of the accused. However, the prosecution has not placed 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 PS RPF / DKZ arrest of the accused is a place frequented by public persons or railway officials. Either the passengers or the vendors, or the coolies are always present in the railway premises. This court can take note of the fact that running of railways is a herculean 24 hours task. It could not be imagined that the presence of even an independent railway official could not be ensured by the RPF. This further makes the recovery doubtful in view of the observations made by the Hon'ble Supreme Court in [PRECEDENT], 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".
20. 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. PS RPF / DKZ It is difficult to believe that the documentation allegedly done by the RPF official was in fact done at the spot of apprehension.
21. 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 [ENTITY] A. Devi Dayal vs. State of Maharashtra, AIR 1981 SC 379. However, the observations made by the Hon'ble Court in [ENTITY]'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 confessional statement contains 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. 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 PS RPF / DKZ 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.
22. 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 [ENTITY] deserves benefit of doubt and is accordingly acquitted of all charges.
Announced in the open court this 28th day of July 2014. ([ENTITY]) MM 07/ Central PS RPF / DKZ