[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CRIMINAL REVISION PETITION NO. 512/1999 UNION OF INDIA Vs. GOVIND SWAROOP DATE: 05/05/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. Suresh Pareek for the petitioner UOI. Mr. N.K. Joshi for the accused-respondent. **** Brief facts of the case are that on 14.04.93, an informer informed the Sub Inspector Malaya Chaturvedi that some railway lines are in illegal possession of the accused Govind Swaroop Sharma R/o Anachi Ki Dhani, Bandikui, upon which the police reached there and enquired from the accused-respondent and he committed that he has some railway lines in his house which he has taken from contractor Beni Prasad Agarwal but in support of which he has nothing in written. The police recovered the lines and arrested the accused- respondent as well as contractor Beni Prasad Agarwal for the offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 (for short 'the Act of 1966'). After investigation, the police filed challan before the Additional Chief Judge (Railway), Jaipur City, Camp Bandikui and vide impugned judgment dated 15.04.99 the Court below discharged the accused-respondent Govind [2] Swaroop from the offence under Section 3 of the Act of 1966. Accused Beni Prasad Agarwal died during trial. Being aggrieved and dissatisfied with the impugned judgment dated 15.04.99 discharging the accused-respondent from the offence under Section 3 of the Act of 1966, the petitioner has filed the instant criminal revision petition under Section 397 Cr.P.C. Learned counsel for the accused-respondent raised preliminary objection regarding maintainability of the revision petition as the present revision petition has been filed by the State of Rajasthan not by the Railway, but this Court vide order dated 06.04.2004 having considered the preliminary objection, has observed that since on a complaint been made by the Railway Protection Force, the prosecution was also initiated on behalf of the Railway Protection Force before the Railway Magistrate, after considering the facts and circumstances, the Union of India is allowed to be substituted in place of the State of Rajasthan as petitioner in the present revision petition. The application for the same is allowed. Amended cause title was ordered to be filed within seven days and the same was subsequently filed. Since the preliminary objection has already been decided, the present criminal revision petition is heard on merit. [3] The main challenge to the impugned judgment dated 15.04.99 is on the ground that the Court below erred in not considering the glaring fact that the accused-respondent has not produced any receipt or any other document in support of his illegal possession and this very fact shows the guilt of the accused-respondent. Further the Court below erred in giving direction that recovered railway lines be returned back to the accused- respondent, whereas it has been proved from the facts that the railway lines are the property of the Railway and without having any valid document to possess the railway lines, the same cannot be handed over to the accused-respondent. I have heard learned counsel for the petitioner, learned counsel appearing for the accused-respondent and carefully gone through the impugned judgment dated 15.04.99 as well as the provisions of Section 3 of the Railway Property (Unlawful Possession) Act, 1966. Section 3 of the Railway Property (Unlawful Possession) Act, 1966 reads as under:- “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 that the railway property came into his possession lawfully be punishable- [4] (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.” Here in the instant case, it is not disputed that the railway lines recovered from the accused-respondent are the railway property, but it has been alleged on behalf of the accused- respondent Govind Swaroop that contractor Beni Prasad Agarwal had given these lines in lieu of some payment. It is also not disputed that the contract for railway lines was awarded in favour of Beni Prasad Agarwal and the accused-respondent is pety contractor of Beni Prasad Agarwal, but directly the Railway has not given any contract to the accused-respondent. It was purely internal arrangement between contractor Beni Prasad Agarwal and the accused-respondent and if any work is done by the accused-respondent and money has not been paid by contractor Beni Prasad Agarwal, the [5] accused-respondent cannot take the railway lines to realise the outstanding amount against Beni Prasad Agarwal. Upon careful perusal of the impugned judgment dated 15.04.99, it is no doubt that this aspect has not been properly considered by the Court below, though it was observed that 9 railway lines have been recovered from the accused- respondent and the same are identified as railway lines and undoubtedly, are the property of the Railway and some lines are recovered from inside the house and some from outside the house. It is also not disputed that accused- respondent Govind Swaroop was not having any valid document and it cannot be said that the railway property came into his possession lawfully. It appears that the Court below has not properly appreciated the provisions of Section 3 of the Railway Property (Unlawful Possession) Act, 1966 and discharged the accused-respondent from the offence under Section 3 of the Act of 1966 vide its impugned judgment dated 15.04.99. The Court below further committed a serious illegality as the accused-respondent was not having lawful possession of the railway lines and to this effect no documentary proof has been shown by him, even then the railway lines were given back to the accused-respondent. [6] Thus, the Court below has seriously erred in discharging the accused-respondent from the offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 and there is illegality and error apparent on the face of the record in the impugned judgment and the same requires interference by this Court while exercising powers under Section 397 Cr.P.C. and the impugned judgment dated 15.04.99 deserves to be quashed and set aside. Hence, the impugned judgment dated 15.04.99 passed by the Additional Chief Judge (Railway), Jaipur City, Camp Bandikui is hereby quashed and set aside and the matter is remitted back to the Court below for fresh adjudication with direction to pass fresh order strictly in accordance with the provisions of Section 3 of the Railway Property (Unlawful Possession) Act, 1966 and on the basis of the material available on record. The criminal revision petition stands allowed as observed herein above. Record be sent back forthwith. (K.S. RATHORE),J. /KKC/ (Reserved)