Full Judgment Text
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 03.02.2025
+ CRL.L.P. 493/2024, CRL.M.A. 30759/2024, CRL.M.A.
30760/2024 & CRL.M.A. 30761/2024
STATE THROUGH RPF ..... Petitioner
versus
FAROOQ AND ORS ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Amit Tiwari, CGSC alongwith Mr.
Hussain Taqvi (GP), Mr. Chetanya Puri, Mr.
Ayush Tanwar & Mr. Rahul Bhaskar,
Advocates.
For the Respondents :
CORAM
HON’BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present petition is filed seeking grant of special leave to
appeal against the judgment dated 04.01.2024 (hereafter ‘ impugned
judgment ’), passed by the learned Metropolitan Magistrate, Tis
Hazari Courts, Delhi, in CC No. 4/2017.
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2. By the impugned judgment, the learned Trial Court acquitted
the respondents of the offence under Section 3 of the Railway
Property (Unlawful Possession) Act, 1966 (‘ RP Act ’).
3. The present case came to be registered against the accused
persons pursuant to secret information received on 28.06.2017 that the
stolen RO Machines were in the possession of a scrap dealer, namely,
Farooq/accused and he was going to sell them on the same day.
During the search and seizure proceedings, three RO machines were
recovered from Farooq. It was alleged that Farooq in his confessional
statement stated that the RO machines were stolen by Maksood Ali @
Sher Khan, Firoz and Mohd. Miyan @ Kawa (co-accused persons)
and were subsequently sold to him in return of ₹5,000/-.
4. On the basis of the disclosure statement of Farooq, accused
Mohd. Miyan was apprehended and he disclosed that he along with
co-accused Maksood Ali and Firoz, had stolen five RO machines.
5. Thereafter, accused – Firoz was apprehended and two stolen
RO machines were recovered from his house.
6. After the completion of the investigation, the inquiry officer
filed a complaint and subsequently, charge under Section 3 of the RP
Act was framed against the respondents.
7. As noted above, the learned Trial Court, by the impugned
judgment, acquitted the respondents and held as under :
“25. In State/Railway Protection Force v. Raju (Supra) it was
mandated that in the absence of public persons the Court needs
to be circumspect relying upon the confessional statements
recorded by the RPF officials. In present case firstly, recovery
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has been effected from accused Farooq near Buland Masjid at
Community Center, Shastri Park, Delhi which is a densely
populated area however, despite that fact RPF has not joined
any public witness to the enquiry and they have mentioned one
public witness in the list of witness namely Jimal and Vikas,
however, they were not examined by RPF in support of their
case for the reasons best known to them. In State/Railway
Protection Force v. Raju, 2014 SCC OnLine Del 575, the
Hon’ble High Court has held that RPF Rules,1987 are
mandatory. The Court further held that requirement of
associating public witnesses must not be treated as a mere
formality. It must not be presumed by the RPF in every case that
the requirement can be dispensed with. Where there are no
public witnesses involved, a trial Court is bound to view with
suspicion the confessional statement made by an accused in the
presence of the RPF officers.
26. In instant case accused Farooq got recovered two
Aquagaurds from his house and at the time of search and seizure
no independent witness was joined to the enquiry by RPF
witness SI Jargish Mohd. And Ct. Vikas Kumar which is
violation of Section 100 Criminal Procedure Code, 1973.
Further he disclosed that he received the stolen case property
from co-accused persons namely Mohd. Miyan, Sher Khan
(since already convicted) and Feroz. Similarly, accused Mohd.
Miyan@ Karwa was also arrested on the basis of secret
information from a public place i.e Murga Mandi near Buland
Masjid, Shastri Park at that time also no public witness was
joined to enquiry, RPF has even failed to shown to have made
any effort to any public person to enquiry. Accused Firoz was
formally arrested from Tis Hazari Court when he came on
hearing in some other case on 29.08.2017. Thereafter, accused
Firoz was also arrested on the basis of his disclosure statement
and he confessed that wherein he stated that he along with co-
accused Sher Khan (already convicted) Mohd Miyan@ Karwa
stolen the R.O Aquaguards from the Yoga Express Train no.
19032 and further sold the same to accused Farooq, scrap
dealer.
27. In the considered opinion of this Court when accused
persons are arrested only on the basis of their disclosure and
confessional statement the Court need to be circumspect and in
the absence of any independent witness or material it would not
be safe to convict the accused persons. In the present case the
mandatory rules of RPF are violated by witnesses as no public
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witness was joined during enquiry or RPF has failed to examine
them, if joined, hence, abovesaid non-compliance has created
doubt about the voluntariness of accused person in making
confessional statement to the RPF witnesses/officials.
28. From the aforesaid evidence on record it is clear that case of
Complainant/RPF suffers from inconsistencies and in violation
of mandatory RPF Rules hence, it has failed to prove its case
against the accused Md. Miyan@ Karwa, Feroz and Farooq
beyond reasonable doubt. Accordingly accused Md. Miyan@
Karwa, Feroz and Farooq Md. Afzal@ Rahul and Ramzani@
Ramzan are given benefit of doubt and acquitted in the present
case for the offence under Section 3 RP(UP) Act.”
8. The learned CGSC for the State submits that the impugned
judgment is erroneous as the learned Trial Court, while acquitting the
respondents failed to appreciate the evidentiary value of the disclosure
statements of the respondents and that the property recovered from the
respondents was also subsequently verified as railway property.
9. He submits that the learned Trial Court erred in not appreciating
the confessional statements made to the RPF officials as the same are
admissible in the eyes of the law as the RPF official is not a police
officer.
10. He submits that the evidence and witness statements of RPF
officials cannot be excluded merely due to the non-availability of
independent witnesses.
11. I have heard the learned counsel and perused the record.
12. It is trite law that this Court must exercise caution and should
only interfere in an appeal against acquittal where there are substantial
and compelling reasons to do so. At the stage of grant of leave to
appeal, the High Court has to see whether a prima facie case is made
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out in favour of the appellant or if such arguable points have been
raised which would merit interference. The Hon’ble Apex Court in the
case of State of Maharashtra v. Sujay Mangesh Poyarekar : (2008) 9
SCC 475 held as under:
“ 19. Now, Section 378 of the Code provides for filing of appeal by
the State in case of acquittal. Sub-section (3) declares that no
appeal “shall be entertained except with the leave of the High
Court”. It is, therefore, necessary for the State where it is
aggrieved by an order of acquittal recorded by a Court of Session
to file an application for leave to appeal as required by sub-section
(3) of Section 378 of the Code. It is also true that an appeal can be
registered and heard on merits by the High Court only after the
High Court grants leave by allowing the application filed under
sub-section (3) of Section 378 of the Code.
20. In our opinion, however, in deciding the question whether
requisite leave should or should not be granted, the High Court
must apply its mind, consider whether a prima facie case has
been made out or arguable points have been raised and not
whether the order of acquittal would or would not be set aside.
21. It cannot be laid down as an abstract proposition of law of
universal application that each and every petition seeking leave to
prefer an appeal against an order of acquittal recorded by a trial
court must be allowed by the appellate court and every appeal
must be admitted and decided on merits. But it also cannot be
overlooked that at that stage, the court would not enter into minute
details of the prosecution evidence and refuse leave observing that
the judgment of acquittal recorded by the trial court could not be
said to be “perverse” and, hence, no leave should be granted.”
(emphasis supplied)
13. Suffice it to say that leave to appeal can be granted only if there
is any perversity in the order of the learned Trial Court or a substantial
error in the view taken by the learned Trial Court. Hence, an order of
acquittal can only be set aside if the approach of the lower court is
vitiated with the manifest illegality or the decision is perverse and the
trial court has committed a manifest error of law and ignored material
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evidence on record.
14. The learned Trial Court has passed a well-reasoned order after
appreciating the evidence on record. It was observed that the
respondents were arrested only on the basis of their disclosure and
confessional statements and there are no independent witnesses
corroborating the prosecution case as to the manner in which the case
properties were seized and the learned Trial Court, after a thorough
consideration, has rightly extended the benefit of doubt and has
acquitted the respondents.
15. A coordinate Bench of this Court in State/Railway Protection
Force v. Raju : 2014 SCC OnLine Del 575 , while considering a
similar issue regarding the evidentiary value of disclosure and
confessional statements in the absence of independent corroboration,
held as under :
“27. Where there are no public witnesses involved, a trial Court is
bound to view with suspicion the confessional statement made by an
accused in the presence of the RPF officers. It has been held
in Balkishan Devidayal v. State of Maharashtra 1981 SCC (Cri) 62 that
the statement made to an RPF officer will not be hit by Section 25 of the
Evidence Act, 1872. In Babu Lal v. State 1977 Crl LJ. 2008 (All), it was
held that the statements recorded by the officers of the RPF during the
investigation do not attract the provisions of Section 162 Cr PC.
In Chinna v. State, (1977) 2 Karn LJ 480, it was held that the
statements recorded by an officer of the RPF in the course of inquiry
can be read in evidence. This makes it all the more necessary for the
Court to cautiously evaluate the confessional statement purportedly
made by an accused to an officer of the RPF soon after his arrest. The
Court will have to be satisfied that the statement was voluntary.
Otherwise, it will be a denial of a just, fair and reasonable procedure
and constitute a violation of Article 21 of the Constitution as well. The
voluntariness of the statement will have to be tested on a case by case
basis and evaluated in light of the attendant circumstances of each
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case. Where there are no public witnesses associated, or where, as in
the present case, all the RPF officers stated to have been present at the
time of the arrest do not sign the confessional statement, or where, as in
the present case, the entries mandatorily required to be made in the
registers maintained under the RPF Rules as regards the arrest of the
accused and the seizure of the railway property are not proved by
producing the original registers, it would be unsafe for the Court to
proceed to convict the Respondent only on the basis of his confessional
statement.”
16. The confessions allegedly made by the respondents falls within
the category of ‘extra-judicial confession’ and the law on the subject
has been clarified by the Hon’ble Apex Court in a catena of decisions
and the principle that emerges out as essence from the various
decisions is that the extra-judicial confession can be accepted and can
be made the basis of conviction if it passes the test of credibility and
such confession should inspire confidence and the Court must find out
whether there are other cogent circumstances on record to corroborate
it.
17. In Subramanya vs. State of Karnataka : (2023) 11 Supreme
Court Cases 255 , the Hon’ble Apex Court explaining the law on the
subject held as under:
“ 54. Extra judicial confession is a weak piece of evidence and
the court must ensure that the same inspires confidence and is
corroborated by other prosecution evidence. It is considered to
be a weak piece of evidence as it can be easily procured
whenever direct evidence is not available. In order to accept
extra judicial confession, it must be voluntary and must inspire
confidence. If the court is satisfied that the extra judicial
confession is voluntary, it can be acted upon to base the
conviction. ”
“ 55. Considering the admissibility and evidentiary value of
extra judicial confession, after referring to various judgments,
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in Sahadevan and Another v. State of Tamil Nadu, (2012) 6
SCC 403, this Court held as under: —
“ 15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4)
SCC 259 : 1996 SCC (Cri) 59] this Court stated the principle
that: (SCC p. 265, para 10)
“ 10. An extra-judicial confession by its very nature is rather a
weak type of evidence and requires appreciation with a great
deal of care and caution. Where an extra-judicial confession is
surrounded by suspicious circumstances, its credibility
becomes doubtful and it loses its importance. ”
18. The learned Trial Court noted that the recovery, in the present
case, was effected from Farooq from his house who further disclosed
that he received the stolen property from one, Mohd. Miyan, who was
then arrested near Buland Masjid at Community Centre, Shastri Park,
Delhi which is a densely populated area however, despite the same,
RPF did not examine any public witnesses. It further observed that
where there are no public witnesses, a trial Court is bound to view
with suspicion the confessional statement made by an accused in the
presence of the RPF officers.
19. Hence, the alleged extra-judicial confession, which is not
supported by any cogent independent evidence, loses its importance
and its credibility becomes doubtful in a case like this.
20. The learned Trial Court had rightly appreciated the judgment
passed by this Court in the case of State/Railway Protection Force v.
Raju ( supra ) and noted that in the absence of public witnesses, the
Trial Court is bound to view with suspicion any confessional
statement made by an accused in the presence of RPF officials.
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Furthermore, the failure to examine public witnesses mentioned in the
case records creates doubt regarding the voluntariness of the accused
persons’ statements. It was also noted that no notice under Section 100
of the CrPC was served upon independent witnesses before
conducting the search and seizure, thereby violating the procedural
safeguards meant to ensure transparency and fairness in the
investigation . Thus, in light of the observations in State/Railway
Protection Force v. Raju ( supra ), the learned Trial Court found that
the non-compliance with mandatory procedures by the RPF led to a
situation where the prosecution case could not be sustained beyond
reasonable doubt.
21. In the present case, it is not disputed that the RPF officer was
entitled to make an inquiry under the RPUP Act and the officer under
the said Act is not a Police officer for the purposes of Section 25 of
the Indian Evidence Act and the confessional statement recorded by
him is admissible in evidence. [Ref : State of U.P. v. Durga Prasad :
(1975) 3 SCC 210 ]
22. However, the evidence of RPF officials as prosecution
witnesses to prove the extra-judicial confession allegedly made by the
respondents cannot be taken as a reliable piece of evidence as none of
the witnesses has seen the respondents committing the crime. When
the accused himself denies any of such offence committed and states
that the investigation was conducted in a biased manner, the accused
could not be convicted on the basis of the testimony of highly
interested witnesses and in this way, the prosecution lacks an
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independent reliable corroboration of the confession made by the
accused.
23. While irregularity and violation of the provisions of Section 100
of the CrPC does not vitiate the seizure, the same would make it
indispensable for the Court to consider the question as to whether the
weight of evidence has been effected in any manner by the non-
compliance or if the same has prejudiced the accused person in any
manner. The Hon’ble Apex Court in the case of State of Punjab v.
Balbir Singh : (1994) 3 SCC 299 had observed as under:
“ 6. At this juncture we may also dispose of one of the
contentions that failure to comply with the provisions of CrPC in
respect of search and seizure even up to that stage would also
vitiate the trial. T his aspect has been considered in a number of
cases and it has been held that the violation of the provisions
particularly that of Sections 100, 102, 103 or 165 CrPC strictly
per se does not vitiate the prosecution case. If there is such
violation, what the courts have to see is whether any prejudice
was caused to the accused and in appreciating the evidence and
other relevant factors, the courts should bear in mind that there
was such a violation and from that point of view evaluate the
evidence on record. Under Section 100 CrPC the officer
conducting search under a warrant should call upon two or more
independent and respectable inhabitants of the locality in which
the place to be searched is situate or of any other locality if no
such inhabitant of the said locality is available or is willing to be a
witness to the search, to attend and witness the search…..Section
165(4) lays down that the provisions of this Code as to search
warrants and the general provisions as to searches contained in
Section 100 shall, so far as may be, apply to a search made under
Section 165 also…..
7. It therefore emerges that non-compliance of these
provisions i.e. Sections 100 and 165 CrPC would amount to an
irregularity and the effect of the same on the main case depends
upon the facts and circumstances of each case. Of course, in such a
situation, the court has to consider whether any prejudice has
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been caused to the accused and also examine the evidence in
respect of search in the light of the fact that these provisions have
not been compiled with and further consider whether the weight
of evidence is in any manner affected because of the non-
compliance. It is well settled that the testimony of a witness is not
to be doubted or discarded merely on the ground that he happens
to be an official but as a rule of caution and depending upon the
circumstances of the case, the courts look for independent
corroboration. This again depends on question whether the
official has deliberately failed to comply with these provisions or
failure was due to lack of time and opportunity to associate some
independent witnesses with the search and strictly comply with
these provisions….. It thus emerges that when the police, while
acting under the provisions of CrPC as empowered therein and
while exercising surveillance or investigating into other offences,
had to carry out the arrests or searches they would be acting
under the provisions of CrPC. At this stage if there is any non-
compliance of the provisions of Section 100 or Section 165 CrPC
that by itself cannot be a ground to reject the prosecution case
outright. The effect of such non-compliance will have a bearing on
the appreciation of evidence of the official witness and other
material depending upon the facts and circumstances of each
case…..
xxxx xxxx xxxx
22. We have also already noted that the searches under the
NDPS Act by virtue of Section 51 have to be carried under the
provisions of CrPC particularly Sections 100 and 165. The
irregularities, if any, committed like independent witnesses not
being associated or the witnesses not from the locality, while
carrying out the searches etc. under Sections 100 and 165 CrPC
would not, as discussed above, vitiate the trial ….
xxxx xxxx xxxx
25. The questions considered above arise frequently before
the trial courts. Therefore we find it necessary to set out our
conclusions which are as follows:
xxxx xxxx xxxx
(4-A) If a police officer, even if he happens to be an
“empowered” officer while effecting an arrest or search
during normal investigation into offences purely under
the provisions of CrPC fails to strictly comply with the
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provisions of Sections 100 and 165 CrPC including the
requirement to record reasons, such failure would only
amount to an irregularity .
(4-B) If an empowered officer or an authorised officer
under Section 41(2) of the Act carries out a search, he
would be doing so under the provisions of CrPC namely
Sections 100 and 165 CrPC and if there is no strict
compliance with the provisions of CrPC then such search
would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by
the courts while appreciating the evidence in the facts and
circumstances of each case. ”
(Emphasis supplied)
24. Sections 100 of the CrPC delineate the procedure for involving
independent witnesses during a search. 100(4) of the CrPC mandates
that the officer or individual authorized to conduct the search must
summon two or more independent and respectable inhabitants from
the locality where the search is to be executed. These witnesses are
required to be present during the search to observe the proceedings,
ensuring transparency and fairness throughout the process.
25. It is peculiar that the RPF Officers were unable to examine even
a single public witness and no efforts to serve any notice under
Section 100 of the CrPC have been pointed out to have been made
either. In such circumstances, prima facie , the non-joinder of
independent witnesses by the prosecution is a frailty in the
prosecution’s case.
26. Further, this Court also observes that with so many
technological advancements, the RPF officials can no longer be
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excused for not improving its methods of gathering and presenting
evidence and violating the RPF Rules. Almost all individuals carry a
mobile phone compatible with videography/photography these days.
While a little play in the joint has to be afforded to investigating
agencies to enable them to discharge their duties, the authorities also
have to be held accountable to prevent abuse of law.
27. The learned Trial Court was justified in concluding that the case
of the prosecution suffered from significant inconsistencies. The
respondents were arrested solely on the basis of disclosure statements
and in the absence of any independent witnesses. The learned trial
court cannot be faulted for concluding that the prosecution failed to
prove the allegations against the respondents beyond reasonable
doubt.
28. In view of the aforesaid discussion, this Court finds no reason to
interfere with the impugned judgment and grant leave to appeal in the
present case.
29. The leave petition is dismissed in the aforesaid terms.
AMIT MAHAJAN, J
FEBRUARY 03, 2025
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