State of Madhya Pradesh V/s Mukesh & Ors.

 Appeal10806 State of Madhya Pradesh Mukesh & Ors DATE OF JUDGMENT: 19 10 2006 S.B. Sinha & Dalveer Bhandari JUDGMENT Arising out of S.L.P.No. 6406 S.B. SINHA J Leave granted Respondents were working as reservation clerks. They were posted at Indore Railway Station. The Assistant Sub Inspector of General Railway Police Indore on an information received by him that one person had illegally been purchasing tickets from reservation counters came to the reservation office and in the process apprehended a person named Suresh Shah. He was from Mumbai. From a search conducted 94 tickets of different trains and some filled up as well as some unfilled reservation demand forms were recovered from him. A sum of Rs. 33 403 was also found in his possession. A First Information Report was lodged. Allegedly during investigation of the said case he was found to have been carrying business in procuring reservation tickets illegally. Respondents herein were said to have abetted in commission of the said offence. On the said charge Respondents herein with the aforementioned Suresh Shah were prosecuted. Whereas the said Suresh Shah was charged under Section 143of the Railway Act 1989 Respondents herein were charged under Section 143(2) thereof. When the case was at an advanced stage the said Suresh Shah absconded. The trial however was concluded against Respondents. They were found guilty of commission of the offence charged against them and were sentenced to undergo 3 years’ rigorous imprisonment and to pay a fine of Rs. 10 000 in default whereof they were directed to undergo further 6 months rigorous imprisonment. They preferred an appeal thereagainst before the Sessions Judge which was transferred to the Court of 6th Additional Sessions Judge Indore and registered as Criminal Appeal No. 78 of 1999. The said appeal was dismissed by an order dated 1.05.2002. A revision application was filed before the High Court by them which by reason of the impugned judgment has been allowed. The State of Madhya Pradesh is thus before us Ms. Vibha Datta Makhija learned counsel appearing on behalf of Appellant principally raised two contentions before us. Firstly it was submitted that although there is no direct evidence as against Respondents herein but from the circumstantial evidence adduced by the prosecution it must be held to have been proved that the railway tickets were being clandestinely sold in black market and unless Respondents had abetted the main accused Suresh Shah and could not have been found to be in possession of 80 tickets involving 94 reservations. It was contended that Respondents were found to have issued the tickets and keeping in view the timings of issuance thereof as has been noticed at paragraph 21 of the judgment of the learned Trial Judge it would have been impossible for the said Suresh Shah to book so many tickets within a few hours viz. from 0933 hrs. to 1916 hours. It was also submitted that Respondents did not raise any particular defence. The High Court the learned counsel would submit also committed a serious error in opining that Respondents had not been asked about the circumstantial evidence or evidence appearing against them by the learned Trial Judge while examining them under Section 313 of the Code of Criminal Procedure. Mr. P.N. Misra learned senior counsel appearing on behalf of Respondents on the other hand supported the judgment of the High Court. Before embarking upon the rival contentions of the parties we may briefly notice the admitted facts. At the relevant time 11 reservation counters were functioning at the Indore Railway Station. Reservation offices at the said place function from 0800 hours to 1400 hours and then from 1410 hours to 2000 hours. An employee works only for six hours in one reservation counter. Two of the reservation clerks were absent. The offence is said to have taken place on 2nd October 1995 i.e. just before the ensuing Durga Puja festival. There were long queues. Ordinarily minimum 2 3 minutes’ time was required for issuance of one ticket. Indisputably a circular was issued in terms whereof one reservation form could be given to one person. He however would be entitled to ask for reservation of six seats for passengers. If one person intends to obtain more than one reservation form he is required to take permission from Divisional Commercial Manager. However indisputably a person intending to obtain reservation for more than six persons can make his associates stand in the queue or come again and again demanding reservation forms. During Diwali Dussehera and Summer holidays in view of rush admittedly at least 20 persons remain in queue in each reservation window. Documents maintained in the reservation office had not been seized. No excess amount was found at the cash counter. No extra cash was also found on the person of Respondents In the reservation forms handwriting of the accused Suresh Shah was allegedly found. It stands admitted that the reservation forms were handled in different counters. Out of the six accused persons three were in the morning shift and three were in the evening shift. From the timings of issuance of tickets as noticed by the learned Trial Judge at paragraph 21 of its judgment it appears that two tickets were found to have been issued at the same time from two counters. The learned Trial Judge in his judgment proceeded on the basis that the accused Nos. 2 to 7 had not acted in good faith as envisaged under Section 186 of the Railways Act The fact that more than one ticket had been issued from different counters at the same time is not disputed. The possibility of the said Suresh Shah to have associates with him who presented reservation forms in different counters cannot thus be ruled out. No doubt Respondents while discharging their public duties were required to maintain transparency but admittedly the Investigating Officer did not conduct any investigation as to whether the said Suresh Shah who allegedly had been carrying on systematic business in procuring reservation for passengers had any associate or not. He is a resident of Bombay. According to the prosecution he used to operate from the said place. Nothing has been brought on records to show as to whether he had regularly been operating from Indore or not. The prosecution is silent in regard thereto. Reservation forms might have been filled up by Suresh Shah but then the possibility that Respondents who were working in three different counters on two different occasions might not have any hands therein cannot be ruled out. They were not expected to verify the handwritings of a person while issuing tickets. They as noticed hereinbefore were required to deal with a person standing before them very How the handwriting of one person in different forms could have been checked by Respondents is open to guess. Only for bulk tickets approval was to be taken but as noticed hereinbefore an associate of the same person may stand in the queue and demand reservation forms from the reservation windows on more than one occasion. Once a filled up form is passed over the reservation clerks had admittedly no discretion in the matter but to issue Section 143(1) of the Railways Act reads thus 143. Penalty for unauthorised carrying on of business of procuring and supplying of railway tickets. 1) If any person not being a railway servant or an agent authorised in this behalf. a) carries on the business of procuring and supplying tickets for travel on a railway or for reserved accommodation for journey in a train or b) purchases or sells or attempts to purchase or sell tickets with a view to carrying on any such business either by himself or by any other person he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to ten thousand rupees or with both and shall also forfeit the ticket which he so procures supplies purchases sells or attempts to purchase or sell Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court such punishment shall not be less than imprisonment for a term of one month or a fine of five thousand rupees A person in view of the aforementioned provision can be said to have committed an offence if he has been carrying on a business. The expression business" implies continuity. The term ’abetment’ has not been defined in the Railways Act. What would constitute abetment is contained in Section 107 of the Indian Penal Code which reads thus 107. Abetment of a thing.\027A person abets the doing of a thing who\027 First. Instigates any person to do that thing or Secondly.\027Engages with one or more other person or persons in any conspiracy for the doing of that thing if an act or illegal omission lakes place in pursuance of that conspiracy and in order to the doing of that thing or Thirdly. Intentionally aids by any act or illegal omission the doing of that thing A person it is trite abets by aiding when by any act done either prior to or at the time of the commission of an act he intends to facilitate and does in fact facilitate the commission thereof would attract the third clause of Section 107 of the Indian Penal Code. Doing something for the offender is not abetment. Doing something with knowledge so as to facilitate him to commit the crime or otherwise would constitute abetment Admittedly the first and second part of the said provision has no application. No illegal omission on the part of Respondents has been established. Admittedly in issuing the tickets Respondents have not violated any rules. Ex facie they have also not violated any direction contained in any circular issued by an appropriate authority in that behalf. The entire prosecution is based on the purported confession of Suresh Shah. A statement of an accused would be admissible against a co accused only in terms of Section 30 of the Indian Evidence Act. Such a statement of co accused was required to be corroborated by adduction of independent evidence. The prosecution has not adduced any independent evidence to show that Respondents had intentionally aided the said Suresh Shah and thereby abetted him in commission of an offence under Section 143(1) of the Indian Railways Act Ms. Makhija may be correct in contending that the High Court has made a wrong observation that all the circumstances appearing against Respondents had not been put in their examination under Section 313 of the Code of Criminal Procedure but its ultimate conclusion on the said issue is not correct. We have been taken through the questions asked to all Respondents by the learned Magistrate. The circumstances appearing against Suresh Shah and Respondents were concededly different. However one questionnaire common to all was prepared. 90% of the questions in the said questionnaire were to be put to Suresh Shah but strangely the same questions had been put to all Respondents. Except one question viz. "what you want to say in your defence " not only similar questions had been put similar answers had been recorded. Strangely enough even questions required to be put to each of the accused persons separately have been made part of the same questionnaire. Such common questions framed and asked to all the accused persons did not subserve the requirements of Section 313 of the Code of Criminal Procedure. To the said extent the High Court’s observations cannot be said to be unsustainable. Moreover it must be borne in mind that we are dealing with a judgment of acquittal passed by the High Court. If two views are possible ordinarily this Court would not interfere therewith. The State has not been able to show any illegality in the judgment of the High Court. We therefore do not intend to interfere therewith. The appeal is dismissed. 

Summary: Doing something for the offender is not abetment. Doing something with knowledge so as to facilitate him to commit the crime or otherwise would constitute abetment.  [Case Brief] State of Madhya Pradesh V/s Mukesh &amp; Ors. Case name: State of Madhya Pradesh V/S Mukesh &amp; Ors. Case number: Criminal Appeal number-1087 of 2006 Court: The Supreme Court of India Bench: JUSTICE S.B SINHA, JUSTICE DALVEER BHANDARI Decided on: OCTOBER 19, 2006 Relevant Act/Sections: Section 143 (1) of the Railway Act, 1989, Section 313 of the Code of Criminal Procedure, Section 30 of the Indian Evidence Act    In the present case, the Hon’ble Supreme Court was approached by the state of Madhya Pradesh under the appellate jurisdiction of the court. The petitioner i.e, State of Madhya Pradesh has approached the Supreme Court against the allowance of the revision application filed by the respondents in the High Court of Madhya Pradesh.The respondents in the present case were working as reservation clerks at Indore Railway Station. The Assistant Sub Inspector of General Railway Station came to the reservation office upon receipt of the information that a person had been illegally purchasing tickets from reservation counters. The Inspector thereof apprehended a person named Suresh Shah, for illegal purchasing the tickets. Upon a search conducted on Suresh, 94 tickets along with filled and non-filled reservation demand forms and cash money of Rs. 33,403/-were also recovered from him.Subsequent to this, an FIR was lodged against Suresh. It was further alleged that he has been carrying business in obtaining reservation tickets illegally. PROCEDURAL HISTORY: The Respondents in the present case have been accused of abetting Suresh in commission of the illegal act. The respondents along with Suresh were prosecuted for offences committed under Section 143 (2) and Section 143(1) of the Railway Act 1989, respectively. Whereas Suresh absconded during the trial itself, the respondents were found guilty of the offences levelled against them and were sentenced to undergo 3 years of rigorous imprisonment with a fine of Rs. 10,000/-in default.However, the respondents were further directed to undergo 6 months additional imprisonment. Against which they preferred appeal to the Sessions Judge, consequently being transferred to the 6th Additional Sessions Judge Indore.The appeal was dismissed by the Judge, resulting in filing of revision application by the respondents before the Madhya Pradesh High Court, which allowed the application.Consequent to the allowance of revision application, the state of Madhya Pradesh moves to the Apex Court against such allowance ISSUE BEFORE THE COURT: Whether doing something for the offender amounts to abetment of an offence? RATIO OF THE COURT: The court while examining the facts of the case observed that reservation forms might have been filled up by the main accused Suresh Shah with the help of his associates. And the Respondents who were working in three different counters on two different occasions might not have any hands therein. While issuing tickets they were not able to examine the person before them due to heavy rush at the counters and less time to issue huge number of tickets. Further the main accused used different handwritings on different reservation forms that could not have been figured out by the respondents while checking them.As far as abetment is concerned, the court after analysing the definition of ‘abetment’ given under section 107 of the IPC said that that it requires three essentials viz., instigation to do the wrongful act, engagement in any conspiracy with one or more persons for commission of the act, intentionally aiding to the commission of the act. The court held that neither of the three conditions given under the section were fulfilled by the acts of the respondents. They merely were fulfilling their duties in issuing the tickets and due to rush of people they were not able to locate the illegal acts committed by the main accused Suresh Shah.On this, the court declared that doing something for the offender does not amount to abetment for an offence. However doing something with knowledge to facilitate the commission of the act for the main offender amounts to abetment.The court observed that the respondents by their acts have not violated any rules or directions contained in any circular issued by the concerned authorities in that behalf and declined to interfere with the proceedings before the High Court. DECISION HELD BY COURT: In this case the judgment was given by JUSTICE S.B SINHA that the Court did not find the respondents guilty of abetment under Section 143 (2) for the offence committed by the main accused Suresh Shah. The court found High Court’s observation as sustainable and declared that the State has not been able to show any illegality in the judgment of the High Court.The court considered not to interfere therewith and dismissed the appeal.