PANNA LAL v. UNION OF INDIA — 1988 DIGILAW 770 (ALL)

A. N. DIXITA, J. ( 1 ) THESE are four connected Criminal Misc. Applications under section 482 Cr. P. C; forquashing the First Information Report registered as Crime No. 1 of 1982 under section 3 of the Railway Property Unlawful Possession Act. 1966, at Police Station R. P. F. Gorakhpur, (2) for quashing the Enquiry Report dated 29. 6. J 983, and (3) for quashing the proceedings in Criminal Case No. 1509 of 1983 pending against the applicants in the court of Judicial Magistrate (Railways), Gorakhpur. ( 2 ) IT appears that on 26. 11. 1981 a public auction was held at Central Store Depot, NE. Railways, Gorakhpur, where lots of various store items were put up for auction by the Railways. Auction in respect of Lots No. 1 081133/ 101, 1081134/41, 1081178/li, and 1081314/11 concluded in favour of M/s Ram Krishna Satish Kumar of Kanpur. It is not necessary to mention the facts regarding the auction in great details and I proceed to mention only these facts which are necessary for the disposal of these applications. After the auction It appears that Panalal, the representative of the aforementioned purchaser firm took delivery of the first lot from the Central Store Depot. Gorakhpur, on 19. 12. 1981 On 9. 1. 1952 the aforesaid representative of the - firm went to Central Store Depot, Gorakhpur, for taking delivery of the remaining part of the auctioned goods. According to the applicants the auctioned goods were loaded in the truck but the R. P. F. personnel did not permit the transportation of the goods on the ground that Panna Lal with the connivance of the employees of the Central Store Depot and other persons was unlawfully taking away goods which were not auctioned to the aforementioned firm. It might be mentioned here that the employees who were suspected to be involved in the matter were suspended by the Railways. Panna Lal and two others who were found in the truck were taken into custody by the Protection Force. A first information report was lodged on 9. 1. 1982 against Panna Lill and two others under section 3 of the Railway Property Unlawful Possession Act, 1966 (for short the Act ). During the investigation of the case the complicity of the remaining applicants alongwith some other persons in the commission of the offence came to light. A first information report was lodged on 9. 1. 1982 against Panna Lill and two others under section 3 of the Railway Property Unlawful Possession Act, 1966 (for short the Act ). During the investigation of the case the complicity of the remaining applicants alongwith some other persons in the commission of the offence came to light. After the completion of the investigation and submission of the enquiry report charge-sheet was submitted against the applicants under section 3/4 of the Act. The Magistrate took cognizance and Criminal Case No. 1509 of 1983 against the applicants is in progress where, as disclosed in the counter affidavit, seven witnesses have been produced on behalf of the prosecution. ( 3 ) LEARNED counsel for the applicants has contended that there is no legal evidence against the applicants and no case whatsoever is made out against them on the evidence produced and consequently it is a fit case where the first information report, the enquiry report and the proceedings in the Criminal Case ought to be quashed by this Court. Having given my anxious consideration to the matter I do not find myself inclined to accept the above contentions. ( 4 ) AT this stage when the entire prosecution evidence has not come on record it would be to early to say that there is no legal evidence against the applicants. Had the entire prosecution evidence been led and had this Court been satisfied that it was unlikely that the said evidence would be accepted on their face value this Court might have exercised jurisdiction under section 482 Cr. P. C. on the ground that there was no legal evidence against the applicants. Unlike that in the instant criminal case the Magistrate being prima facie satisfied about the commission of the offence has taken cognizance and the case is in progress. That being so at this stage it also cannot be said that no case is made out against the applicants on the evidence produced in the case. ( 5 ) THAT apart, the questions which these four cases themselves pose for determination may be mentioned. That being so at this stage it also cannot be said that no case is made out against the applicants on the evidence produced in the case. ( 5 ) THAT apart, the questions which these four cases themselves pose for determination may be mentioned. They are: (1) Whether the goods seized from the possession of Panna Lal and others were or were not Railways property, (2) Whether or not the applicants were guilty of conspiracy or whether some others were guilty of such conspiracy; and (3) Whether out of 286 bags seized only 50 bags were sealed by the police and the remaining bags remained unsealed and whether if the remaining unsealed bags contained material which were not actually auctioned by the Railways to the aforesaid firm, could the applicants be convicted for the offence under section 3/4 of the Act. Determination of these questions is clearly outside the scope of section 482 Cr. P. C. The provisions of section 482 can be successfully availed of if the applicants are able to demonstrate before this Court that continuance of the criminal proceedings against them in the court below is nothing but abuse of the process of law or this Court is satisfied that even otherwise to secure the ends of justice it Wall necessary to pass suitable orders. In the instant cases neither of the two contingencies exist. The guilt or innocence of the applicants can only be ascertained when the questions polled in the applications as shown above arc properly determined which can only be done by the learned Magistrate find not by this Court. The proceedings in the criminal case no. 1509 of 1983 Where seven witnesses have already been examined cannot, therefore, be said to be abuse of the procure of law liability be quashed under section 482 Cr. P. C. It might also be observed that under Section 482 Cr. P. C. in my opinion, it is not open to this Court to quash-either a first information report or an enquiry report. ( 6 ) NO doubt the learned counsel for the applicants has placed reliance on a catena of decisions in support of his contention but none the called cited fortify the submission that no legal evidence is there on record which may warrant quashing of the first information report, the enquiry report of she proceedings in the case. ( 6 ) NO doubt the learned counsel for the applicants has placed reliance on a catena of decisions in support of his contention but none the called cited fortify the submission that no legal evidence is there on record which may warrant quashing of the first information report, the enquiry report of she proceedings in the case. As has been discussed above the prosecution has embarked upon itself to adduce the necessary evidence to bring borne the guilt of the applicants within the postulates of sections 3 and 4 of the Act which read asunder: 113 Penalty for unlawful possession of railway property-Whoever is found, or is proved to have been, in possession of any fail way property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into this 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 of 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 fines shall not be less than two thousand rupees. 4. Punishment for connivance at offences -Any owner or occupier of land or building, or any agentof such owner or occupier in charge of the management of that land or building who wilfully connives at an offence against the provisions of this Act, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with be thet A bare reading of the above two provisions of the Act indicate that any person who has unlawfully stained or is reasonably suspected of the violation of the said provisions would come with in their am bit. ( 7 ) PRESENTLY the prosecution has produced evidence to clearly indicate that the material in question which was found in possession of Panna Lal in the truck was not the one which was auctioned. ( 7 ) PRESENTLY the prosecution has produced evidence to clearly indicate that the material in question which was found in possession of Panna Lal in the truck was not the one which was auctioned. The analytical report of the Examiner has clearly revealed that the auctioned material is not the one which was found in the truck. Moreover, the prosecution at this stage cannot be throttled to prove by necessary evidence the lot which was auctioned. The case is in its infancy and in stalling of the prosecution evidence instead of securing the ends of justice would tentamount to be a clear abuse of the process of law was this could or would deny the prosecution an opportunity to establish the guilt of the applicants. Further it cannot be said that at present the proceedings in the trial court at the behest of the prosecution is based on alarmists or conjectures. The examination of the veracity of the evidence at this stage would be preempting the issue and it is manifest that there is no hypothetical material which may be assailed by the applicants. The learned Magistrate who, is seized of the matter is fully empowered and competent to permit the prosecution to prove its case and presently neither it can be said that the evidence is hypothetical or that it may come within the scope of no legal evidence. In a case like the instant one where the prosecution has to establish unlawful possession or reason bane spic on as regards possession of the railway property it is imperative that in order to secure the ends of justice the prosecution is given full opportunity and liberty to prove the ingredients as postulated in sections 3 and 4 of the Act. Moreover, very many employees of the railways and other personnel are accused in this case on the premise that during the enquiry their complicity is radiantly revealing inasmuch as they conspired together to permit or assist the unlawful removal of the railway property and for this purpose it appears that number of witnesses have been cited and will, have to be produced to establish the guilt of the applicants and the other persons who are proceeded against (many of the accused persons are not party to these applications ). ( 8 ) IN view if the above it is very difficult to hold that the first information report or the enquiry report, deserve to be quashed. A Larger Bench of this Court of which I was also It member in Criminal Misc. Case No 2852 of 1986 connected with Criminal Misc. Case No. 4201 of 1987-Mukesh Kumar v. State and Present Gaur v. State respectively decided on 21. 5. 1988 has held that in the rarest of the rare cases where the F. I. R. and the investigation in the instant case the enquiry report) does not disclose the commission of a cognizable offence or any offence of any kind, the High Court may invoke the powers under section 482 Cr. P. C. Presently neither the F. I R. nor the enquiry report do indicate that no offence is made out. On the other hand, prima facie a case has been set out which warrants a trial. ( 9 ) THIS Court while disposing of an application under section 482 Cr. P. C would not appreciate the evidence in part unless the entire evidence is placed on record. On the face value the ingredients, the alleged offence appear to have been satisfied. It would have been legitimate for this Court where the F. I. R. , the enquiry report or the evidence did not disclose the offence alleged not to allow the process of the criminal court to be issued against the applicants. It cannot, be said that at the present juncture the evidence is manifestly and clearly inconsistent with the accusations made. The High Court while exercising its jurisdiction under section 482 Cr. P. C. would not embark upon an enquiry as to whether the evidence, in question is reliable and sufficient or not. This function is clearly within the domain of the trial Magistrate. It is not open to the applicants, to invoke the inherent Jurisdiction of the High Court by contending that on a reasonable appreciation of the evidence the accusations made against the applicants would not the sustained. Again the High Court would not usurp the functions of the trial Magistrate and it would be for him to dispose of the case according to law in the light of the evidence. Such an intervention or interference in the powers of the trial Magistrate is uncalled for. Again the High Court would not usurp the functions of the trial Magistrate and it would be for him to dispose of the case according to law in the light of the evidence. Such an intervention or interference in the powers of the trial Magistrate is uncalled for. Neither it is the function of the High Court while exercising its inherent jurisdiction to appraise the evidence nor to enquire as to whether it is reliable or not, as was held in the case of R. P. Kapoor v. State of Punjab. ( 10 ) IN the case of Kurukshetra University and another v. State of Haryana. It has been Observed by the Supreme Court: It ought to be realized that inherent powers do not confer an arbitrary, jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. Justice requires that a person who commits an offence must be brought to book and must he punished for the same. If the Court interferes with the proper trial in a case where an offence has been disclosed the offence will go unpunished to the serious detriment of the society and the cause of justice suffers has been observed in the case of State of State of West Bengal v. Swapan Kumar Guha and others. The Supreme Court further held, that it is on the basis of this principle that Court would not interfere with the investigation. Here in the case before me the investigation has been completed and the applicant along with other persona are facing trial against serious activation, - of being found in unlawful Possession of railway propend or being reasonably suspected of billing in its possession by entering into a conspiracy. Railway property is national wealth and its loss would be detrimental to the national interest. Public property deserves protection and if it is found that such property was being possessed and derogation of the tenets of the statute as enshrined in sections 3 and 4 of the Act it cannot be light, taken into account. ( 11 ) IN view of the above I do not find any merit in these applications under section 482 Cr. P. C. ( 12 ) THESE four applications are, accordingly, dismissed. ( 11 ) IN view of the above I do not find any merit in these applications under section 482 Cr. P. C. ( 12 ) THESE four applications are, accordingly, dismissed. It would, however, be expedient in the interest of justice that the learned Magistrate proceeds with the case expeditiously and avoids, unnecessary adjournments. .