Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Judgment Reserved on: 5 November, 2009
th
Judgment Delivered on: 10 November, 2009
+ CRL.REV.P.137/2003
STATE (THROUGH INSPECTOR RPF) ..... Petitioner
Through: Mr.Manoj Ohri, APP for State
SI R.K.Yadav, RPF O/Post
Tughlakabad
versus
RAVI KANT ..... Respondent
Through: Mr.Rajesh Mahajan, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
INDERMEET KAUR, J.
1. On 12.11.2002, the Additional Sessions Judge had
discharged the petitioner Ravi Kant in a complaint which had been
filed against 13 persons including the present petitioner under
Section 3 of the Railway Property (Unlawful Possession) Act 1966
(hereinafter referred to as „the said Act‟). The court had held that
there is no prima facie evidence against the petitioner in the
absence of which the issuance of the process for summoning the
petitioner by the Trial Court was a bad order and was accordingly
Crl. R.P.137/2003 Page 1 of 8
set aside. The Trial Court had summoned the petitioner on this
complaint vide its order dated 24.12.2001.
2. Briefly stated the facts are that on 2.7.2001, the Vigilance
department of the Railway Board received an information that
railway servants of electric loco shed Tuglakabad of Western
Railway will make excess delivery of M/s Turning/boring in
connivance with the party purchaser. Acting upon this information
Mahesh Kumar Inspector investigation, Vigilance Railway Board,
Sh.Vishok Gupta, Chief Vigilance Inspector Northern Railway,
Sh.Mahesh Chandra Gupta, Senior Vigilance Inspector Northern
Railway came to the RPF Post of Tuglakabad. They were
accompanied with HC RPF Dharam Vir Meena; they reached
Jeewan Dharam Kanta, Madan Pur Kuadar. At about 6 PM, three
trucks loaded when turning and boring arrived at the said dharam
kanta for weightment; these trucks left at about 6.35 PM;
Dharamvir Singh and Vishok Gupta followed them and stopped at a
distance of half a kilometer. In the meanwhile Mahesh Kumar and
Mahesh Chander Gutpa arrived at the Jeewan dharam kanta and
demanded the documents regarding the turning and boring loaded
in the trucks. The present petitioner i.e. Ravi Kant who was the
Assistant Controller of Stores (W.R.) Tuglakabad (ACOS) was
standing at the spot along with Raghubar Dayal, Divisional Store
Keeper, G.N.Gupta, Stock Verifier, R.L.Gupta, SI/RFP and Kadir of
M/s Saboo Ruby Traders. Sale delivery issue note and the
Crl. R.P.137/2003 Page 2 of 8
weightment slips of the dharam kanta were produced. These
documents were seized by the vigilance team; they reflected that
6070 kgs. of turning and boring had been loaded in the three
trucks; on the weightment of the material these trucks were found
to be loaded with 5465 kgs. of excess turning and boring. The
aforestated material was seized.
3. These allegations had become the subject matter of the
complaint dated 24.12.2001 on which the summons had been
issued on the same day. Petitioner had been arrayed as accused
No.12 in the complaint.
4. The court of the Additional Sessions Judge had held that
there is no dispute to the fact that the petitioner was present at the
spot i.e. at the dharam kanta when the weightment of the disputed
material had been effected. However, mere presence of the
petitioner would not have been sufficient to make out the
ingredients of an offence under Section 3 of the said Act. The
explanation given by the petitioner that his presence was required
at the spot only to countersign the sale issue note which he had not
signed and which was an admitted position, was for the reason
that the petitioner had come to know that the trucks had been
apprehended and this had reflected the bonafides on the part of
the petitioner as it was on this ground that he had refused to
countersign this sale issue note; had he been in connivance with
the other co-accused he would have signed the sale issue note.
Crl. R.P.137/2003 Page 3 of 8
Ingredients of Section 3 of the said Act not having been made out
the petitioner had been discharged.
5. The State has impugned this order. It is pointed out that the
averments in the charge-sheet make out an offence under Section
3 of the said Act; the petitioner was in possession of that property
which was suspected to be stolen/unlawfully obtained; it was also a
railway property; ingredients of Section 3 of the said Act were
prima facie made out for this proposition that the word “is” as is
contained in Section 3 of the said Act may also be read as “was”
i.e. in the past tense; reliance has been placed upon Om Prakash
vs. State of U.P. AIR 2008 SC 1112. It is submitted that the
impugned order of the Additional Sessions Judge had unjustifiably
set aside the summoning which was passed by the Magistrate; the
court was yet to go into the question as to whether the provision of
Section 114 of the IPC are attracted or not; ingredients of
abetement of the offence as contained in Section 114 of the IPC
qua the petitioner were made out; it was for this reason that he
had been roped in.
6. Arguments have been heard and the record has been
perused.
7. Railway property has been defined in Section 2 (d) of the Act
and which reads as follows:
Section 2(d) "railway property" includes any goods, money or
valuable security or animal, belonging to, or in the charge or possession
of, a railway administration.
Crl. R.P.137/2003 Page 4 of 8
8. Section 3 deals with the penalty for unlawful possession of
railway property. The same reads as follows:
Section 3. 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 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.
9. In State of Maharashtra v. Viswanath Tukaram :
1979CriLJ1193 , it was held that the following ingredients are
necessary to bring in the application of Section 3:
“(i) The property in question should be railway property;
(ii) It should be reasonably 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.”
10. The question which arises for decision is as to whether on a
prima facie reading of the complaint, the ingredients of the section
3 are made out; it was under this provision of law that the
complaint has been filed.
11. Averments made in the complaint have been perused. The
name of the present petitioner who has been arrayed at No.12
finds mention at three places i.e. in the complaint at running page
Crl. R.P.137/2003 Page 5 of 8
no. 4, 7 and 9. These averments are only to the effect that the
petitioner Ravi Kant was present at Dharamkanta; there is no
averment that he abetted the offence i.e. he had allowed the
excess of 5465 kgs. of railway property to be taken out illegally.
12. Presence of the petitioner at the Dharmakanta would not by
itself be sufficient to hold that he was guilty prima facie unless it is
substantiated by the material on record. The material on record
besides the complaint are the documents which have been filed
along with the complaint which includes the Stores Depots-
Receipts and Custody of Stores Rules contained in Chapter XII and
appended to this Act. Under Rule 1201 the Depot Officer is
responsible to the Controller of Stores. The present petitioner has
been described as ACOS i.e. Assistant Controller of Stores. Under
Rule 2417 the depot officer was to supervise the auction and would
be responsible for the conduct of the auction. Under Rule 2426 the
material sold shall be weighed and counted before the delivery and
be supervised by four persons which does not include the Assistant
Controller of Stores i.e. the present petitioner. The loading of the
sold materials under Rule 2433 has to be done under the
supervision of the Depot Officer or his assistant.
13. A perusal of these Rules shows that the presence of the
petitioner at the time of the weightment of the disputed material
was not a part of his duty; he being the Assistant Controller of
Stores was not even required to be present at the time of the
Crl. R.P.137/2003 Page 6 of 8
weightment. The Circular dated 17.2.1975 of the Western Railway
i.e. Stores Instruction No.23 RB 01 WR 03 relied upon by the Trial
Court also states that the sale issue note is to be signed by the
Controlling Officer ensure a post scrutiny of the document at the
gazetted levels. Admittedly this sale issue note had not been
countersigned by the petitioner. The explanation of the petitioner
accepted by the trial court was to the effect that he was present at
the spot to countersign the sale issue note but when he learnt
about the apprehension of the goods when he was at the
Dharamkanta itself he refused to sign the sale issue note. This
explanation appeared to be satisfactory. It appears that there was
a negligence on the part of the subordinate officers of the
petitioner for which the petitioner cannot be held liable.
14. The ingredients of Section 3 of the said Act are not attracted;
the question of the applicability of Section 114 of the IPC i.e. the
abetement of the offence would also not arise in the absence of
their being no such averment from which such an inference could
have been drawn. Even otherwise, criminal law is not based on
inferences and surmises; ingredients of the offence even at the
first stage have to be prima facie established.
15. The judgment reported in Purna Chandra Sen Gupta and
Ors. Vs. Superintendent & Remembrancer of Legal Affairs, W.B.
1993 (3) Crimes 598 (SC) relied upon the counsel for the
petitioner, was an appeal against final conviction; the appellants
Crl. R.P.137/2003 Page 7 of 8
were Rakshaks in charge of the protection of railway property;
charge-sheet against them had been filed under Section 3 (a) of
the Act and Section 114 of the IPC; they had been held guilty as
there was clear evidence after trial to establish that there has been
a dereliction of duty which amounted to an abetement under
Section 114 of the IPC.
16. Complaint in this case is only under Section 3 of the said Act.
Facts of this case are distinct; the duties of the Assistant Controller
of Stores as enumerated in the Rules discussed supra do not prima
facie qualify for a dereliction of duty on the part of the petitioner;
there is also not a whisper of this in the complaint. The second
judgment relied upon by the counsel for the State of Om Prakash
(supra) was an appeal against conviction where the appellant was
admittedly the contractor and it was at his behest that the articles
had been unloaded; said facts are also distinguishable.
17. Order of the trial court calls for no interference. It had
correctly been appreciated that there is not an iota of evidence to
summon the petitioner. Revision petition is without any merit; it is
dismissed.
(INDERMEET KAUR)
JUDGE
th
10 November, 2009
rb
Crl. R.P.137/2003 Page 8 of 8
th
% Judgment Reserved on: 5 November, 2009
th
Judgment Delivered on: 10 November, 2009
+ CRL.REV.P.137/2003
STATE (THROUGH INSPECTOR RPF) ..... Petitioner
Through: Mr.Manoj Ohri, APP for State
SI R.K.Yadav, RPF O/Post
Tughlakabad
versus
RAVI KANT ..... Respondent
Through: Mr.Rajesh Mahajan, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to see
the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
INDERMEET KAUR, J.
1. On 12.11.2002, the Additional Sessions Judge had
discharged the petitioner Ravi Kant in a complaint which had been
filed against 13 persons including the present petitioner under
Section 3 of the Railway Property (Unlawful Possession) Act 1966
(hereinafter referred to as „the said Act‟). The court had held that
there is no prima facie evidence against the petitioner in the
absence of which the issuance of the process for summoning the
petitioner by the Trial Court was a bad order and was accordingly
Crl. R.P.137/2003 Page 1 of 8
set aside. The Trial Court had summoned the petitioner on this
complaint vide its order dated 24.12.2001.
2. Briefly stated the facts are that on 2.7.2001, the Vigilance
department of the Railway Board received an information that
railway servants of electric loco shed Tuglakabad of Western
Railway will make excess delivery of M/s Turning/boring in
connivance with the party purchaser. Acting upon this information
Mahesh Kumar Inspector investigation, Vigilance Railway Board,
Sh.Vishok Gupta, Chief Vigilance Inspector Northern Railway,
Sh.Mahesh Chandra Gupta, Senior Vigilance Inspector Northern
Railway came to the RPF Post of Tuglakabad. They were
accompanied with HC RPF Dharam Vir Meena; they reached
Jeewan Dharam Kanta, Madan Pur Kuadar. At about 6 PM, three
trucks loaded when turning and boring arrived at the said dharam
kanta for weightment; these trucks left at about 6.35 PM;
Dharamvir Singh and Vishok Gupta followed them and stopped at a
distance of half a kilometer. In the meanwhile Mahesh Kumar and
Mahesh Chander Gutpa arrived at the Jeewan dharam kanta and
demanded the documents regarding the turning and boring loaded
in the trucks. The present petitioner i.e. Ravi Kant who was the
Assistant Controller of Stores (W.R.) Tuglakabad (ACOS) was
standing at the spot along with Raghubar Dayal, Divisional Store
Keeper, G.N.Gupta, Stock Verifier, R.L.Gupta, SI/RFP and Kadir of
M/s Saboo Ruby Traders. Sale delivery issue note and the
Crl. R.P.137/2003 Page 2 of 8
weightment slips of the dharam kanta were produced. These
documents were seized by the vigilance team; they reflected that
6070 kgs. of turning and boring had been loaded in the three
trucks; on the weightment of the material these trucks were found
to be loaded with 5465 kgs. of excess turning and boring. The
aforestated material was seized.
3. These allegations had become the subject matter of the
complaint dated 24.12.2001 on which the summons had been
issued on the same day. Petitioner had been arrayed as accused
No.12 in the complaint.
4. The court of the Additional Sessions Judge had held that
there is no dispute to the fact that the petitioner was present at the
spot i.e. at the dharam kanta when the weightment of the disputed
material had been effected. However, mere presence of the
petitioner would not have been sufficient to make out the
ingredients of an offence under Section 3 of the said Act. The
explanation given by the petitioner that his presence was required
at the spot only to countersign the sale issue note which he had not
signed and which was an admitted position, was for the reason
that the petitioner had come to know that the trucks had been
apprehended and this had reflected the bonafides on the part of
the petitioner as it was on this ground that he had refused to
countersign this sale issue note; had he been in connivance with
the other co-accused he would have signed the sale issue note.
Crl. R.P.137/2003 Page 3 of 8
Ingredients of Section 3 of the said Act not having been made out
the petitioner had been discharged.
5. The State has impugned this order. It is pointed out that the
averments in the charge-sheet make out an offence under Section
3 of the said Act; the petitioner was in possession of that property
which was suspected to be stolen/unlawfully obtained; it was also a
railway property; ingredients of Section 3 of the said Act were
prima facie made out for this proposition that the word “is” as is
contained in Section 3 of the said Act may also be read as “was”
i.e. in the past tense; reliance has been placed upon Om Prakash
vs. State of U.P. AIR 2008 SC 1112. It is submitted that the
impugned order of the Additional Sessions Judge had unjustifiably
set aside the summoning which was passed by the Magistrate; the
court was yet to go into the question as to whether the provision of
Section 114 of the IPC are attracted or not; ingredients of
abetement of the offence as contained in Section 114 of the IPC
qua the petitioner were made out; it was for this reason that he
had been roped in.
6. Arguments have been heard and the record has been
perused.
7. Railway property has been defined in Section 2 (d) of the Act
and which reads as follows:
Section 2(d) "railway property" includes any goods, money or
valuable security or animal, belonging to, or in the charge or possession
of, a railway administration.
Crl. R.P.137/2003 Page 4 of 8
8. Section 3 deals with the penalty for unlawful possession of
railway property. The same reads as follows:
Section 3. 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 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.
9. In State of Maharashtra v. Viswanath Tukaram :
1979CriLJ1193 , it was held that the following ingredients are
necessary to bring in the application of Section 3:
“(i) The property in question should be railway property;
(ii) It should be reasonably 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.”
10. The question which arises for decision is as to whether on a
prima facie reading of the complaint, the ingredients of the section
3 are made out; it was under this provision of law that the
complaint has been filed.
11. Averments made in the complaint have been perused. The
name of the present petitioner who has been arrayed at No.12
finds mention at three places i.e. in the complaint at running page
Crl. R.P.137/2003 Page 5 of 8
no. 4, 7 and 9. These averments are only to the effect that the
petitioner Ravi Kant was present at Dharamkanta; there is no
averment that he abetted the offence i.e. he had allowed the
excess of 5465 kgs. of railway property to be taken out illegally.
12. Presence of the petitioner at the Dharmakanta would not by
itself be sufficient to hold that he was guilty prima facie unless it is
substantiated by the material on record. The material on record
besides the complaint are the documents which have been filed
along with the complaint which includes the Stores Depots-
Receipts and Custody of Stores Rules contained in Chapter XII and
appended to this Act. Under Rule 1201 the Depot Officer is
responsible to the Controller of Stores. The present petitioner has
been described as ACOS i.e. Assistant Controller of Stores. Under
Rule 2417 the depot officer was to supervise the auction and would
be responsible for the conduct of the auction. Under Rule 2426 the
material sold shall be weighed and counted before the delivery and
be supervised by four persons which does not include the Assistant
Controller of Stores i.e. the present petitioner. The loading of the
sold materials under Rule 2433 has to be done under the
supervision of the Depot Officer or his assistant.
13. A perusal of these Rules shows that the presence of the
petitioner at the time of the weightment of the disputed material
was not a part of his duty; he being the Assistant Controller of
Stores was not even required to be present at the time of the
Crl. R.P.137/2003 Page 6 of 8
weightment. The Circular dated 17.2.1975 of the Western Railway
i.e. Stores Instruction No.23 RB 01 WR 03 relied upon by the Trial
Court also states that the sale issue note is to be signed by the
Controlling Officer ensure a post scrutiny of the document at the
gazetted levels. Admittedly this sale issue note had not been
countersigned by the petitioner. The explanation of the petitioner
accepted by the trial court was to the effect that he was present at
the spot to countersign the sale issue note but when he learnt
about the apprehension of the goods when he was at the
Dharamkanta itself he refused to sign the sale issue note. This
explanation appeared to be satisfactory. It appears that there was
a negligence on the part of the subordinate officers of the
petitioner for which the petitioner cannot be held liable.
14. The ingredients of Section 3 of the said Act are not attracted;
the question of the applicability of Section 114 of the IPC i.e. the
abetement of the offence would also not arise in the absence of
their being no such averment from which such an inference could
have been drawn. Even otherwise, criminal law is not based on
inferences and surmises; ingredients of the offence even at the
first stage have to be prima facie established.
15. The judgment reported in Purna Chandra Sen Gupta and
Ors. Vs. Superintendent & Remembrancer of Legal Affairs, W.B.
1993 (3) Crimes 598 (SC) relied upon the counsel for the
petitioner, was an appeal against final conviction; the appellants
Crl. R.P.137/2003 Page 7 of 8
were Rakshaks in charge of the protection of railway property;
charge-sheet against them had been filed under Section 3 (a) of
the Act and Section 114 of the IPC; they had been held guilty as
there was clear evidence after trial to establish that there has been
a dereliction of duty which amounted to an abetement under
Section 114 of the IPC.
16. Complaint in this case is only under Section 3 of the said Act.
Facts of this case are distinct; the duties of the Assistant Controller
of Stores as enumerated in the Rules discussed supra do not prima
facie qualify for a dereliction of duty on the part of the petitioner;
there is also not a whisper of this in the complaint. The second
judgment relied upon by the counsel for the State of Om Prakash
(supra) was an appeal against conviction where the appellant was
admittedly the contractor and it was at his behest that the articles
had been unloaded; said facts are also distinguishable.
17. Order of the trial court calls for no interference. It had
correctly been appreciated that there is not an iota of evidence to
summon the petitioner. Revision petition is without any merit; it is
dismissed.
(INDERMEET KAUR)
JUDGE
th
10 November, 2009
rb
Crl. R.P.137/2003 Page 8 of 8