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1994 DIGILAW 273 (ORI)

DAYANIDHI MALLIK v. STATE

1994-09-15

K.L.ISSRANI

body1994
K. L. ISSRANI, J. ( 1 ) THE present revision petition has been filed by the petitioners against the-judgment and order dated 18/07/1992 passed by the Additional Sessions Judge, Balasore arising out of the judgment and order dated 21-10-1989 passed by Sri S. C. Rath, J. M. F. C. Balasore in S. 2 (c) C. C. 21/83 convicting the petitioners under S. 3 (a) of the Railway Property (Unlawful Posses sion) Act, 1966 (for short 'the Act' ). The submis sion of the learned counsel for the petitioners is that in this case, other two accused persons Kamalakanta Sahoo and Abhiram Mallik were acquitted but the present petitioners were found guilty and sentenced to undergo R. I. for one year. ( 2 ) THE case of the petitioners is not different from the one who were acquitted. The further submission is that as property seized were not seized from the possession of the petitioners but were seized from water. It cannot be said that the petitioners were in possession of the same. The prosecution has also the knowledge of the prop erty being there. Moreover, the circumstantial evidence taken into consideration against the pe titioners is not valid, legal and proper. The courts below have not taken into consideration the fact that such circumstances must be true. For this he has relieved on AIR 1957 SC 637 (Sarwan Singh Rattan Singh v. State of Punjab) and also AIR 1984 SC 1622 (Sharad Birdhichand Sarda v. State of Maharashtra ). For the confessionary statement, Exts. 7 and a relied on by the prosecution in this case, the learned counsel has relied on the prin ciples laid down in 1992 Cri LJ 1888 (N. S. R. Krishna Prasad v. Directorate of Enforcement. Loknayak Bhawan Khan Market, New-Delhi) wherein it has been held that the warning must be given to the person giving such confessionary statement. The further submission is that this confessionary statements recorded after the pe riod of about 15 days from the date of arrest are of no value and were obtained under duress. ( 3 ) THE learned counsel for the State vehe mently opposes the submission of the learned counsel for the petitioners. He relies on the prin ciples laid down in AIR 1981 SC 379 (Balkishan A. Devidayal v. State of Maharashtra) and AIR 1981 SC 635 (State of Uttar Pradesh v. Vyas Tewari ). ( 3 ) THE learned counsel for the State vehe mently opposes the submission of the learned counsel for the petitioners. He relies on the prin ciples laid down in AIR 1981 SC 379 (Balkishan A. Devidayal v. State of Maharashtra) and AIR 1981 SC 635 (State of Uttar Pradesh v. Vyas Tewari ). For the principle that the officers are two but enquiry under S. 3 of the Railway Property (Unlawful Possession) Act, 1966 (for short 'the Act') is not the Police Officer, the person arrested under S. 6 of the Act incriminating statements made by him during enquiry under S. 8, the protection under S. 20 (3) of the Constitution of India is not avail able to him. ( 4 ) THE language of S. 3 of the Act is repro duced below : -"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 prove 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 then 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. " ( 5 ) ACCORDING to S. 8 of the Act though powers of the Officer-in-charge of the Police-Station are conferred on the officer of the Railway Protection forces, but all powers have not been conferred on him as in the case of an officer-in-charge of the police-station is to particularly not he has no power to initiate the prosecution by filing a charge sheet before the Magistrate. Under S. 173 of the Code of Criminal Procedure, 1908 which has been held to be the clinching attribute of an Investigating "police Officer". Under S. 173 of the Code of Criminal Procedure, 1908 which has been held to be the clinching attribute of an Investigating "police Officer". It is also the settled law that an officer of the protection force make an enquiry under S. 8 (1) of the Act is held to be not a police officer conducting an investigation under the Criminal Procedure Code. That being so, it is to be seen whether the confessionary statements made before him by the petitioners to an officer of the Railway Protection force cannot be said to be legal, valid and proper. The character of the enquiry is different from that of investigation under the Code. The official status and powers of an officer of the force and the manner of enquiry under the Act is different on material aspects from offices of the Police Officers conducting an in vestigation under the Code. In AIR 1981 SC 635 also it has been held that an officer of Railway Protection Force is not a Police Officer conducting investigation within meaning of S. 162 of the Code of Criminal Proce dure. ( 6 ) REGARDING possession, the learned coun sel for the petitioners raised a point that the seized wire was not seized from the petitioners, AIR 1972 SC 1756 (Gunwantlal v. State of Madhya Pradesh) which is a case under the Arms Act, it has been therein that 'possession' need not be physical possession but can be con structive having power and control over the gun. In AIR 1979 SC 1825 (State of Maharashtra v. Vishwanath Tukaram Umale) which was a case under the Act, it has been held that it is true that the gravement of the offence under S. 3 of the Act is the "possession" of the property, but it need not necessarily be a subsist ing possession, and it is sufficient if the accused was proved to "have been in possession" of that property at any point of time. But for the require ments of the proof under this Section, it has been held that the essential requirements of S. 3 are that the property in possession should be Railway Property, (ii) it should reasonably be suspected/or 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. In 1990 Cri. In 1990 Cri. LJ 2449 (Cal) (Janardhan Show v. State) which was also a case under the Act, the courts below have come to a finding that it was a Railway Property which was stolen. ( 7 ) IN the present case, the prosecution witnesses, P. W. 7, S. I. RPP along with his staff went to the spot on 11-3-1983 and during investigation got reliable information that the culprits after having committed theft were in the water under Railway bridge. They also got further informa tion that in that night, there was a chance of removal of those wire from the place of conceal ment. Accordingly, they lay an anguish waiting in for the culprits to come. While they were waiting, the appellants along with two others appeared in the scene and tried to recover wire from the water. Seeing this, P. W. 7 along with his staff gave a chase and caught hold of the appel lants. Property was held by both the courts to be Railway Property and seized from the possession of the petitioners view seizure Annexure-1. Pretex ably, evidence and also the findings that the wire was seized from the petitioners cannot be said to be wrong or erroneous. The fact that the accused persons were found there trying to take out the seized wire at about 2-45 a. m. goes to show nothing but the fact that the accused persons had. knowledge that it was there. It can safely be presumed that the accused being either thief or in possession of the stolen property had put the same under water in order to take it out at the appropri ate time in lees bears (sic ). ( 8 ) FURTHER besides the seizure memo, Ext. 1, reliance has been placed on confessionary Statements, Exts. 7 and 8 given by the petitioner. The submission of the learned counsel for the peti tioner is that the confessionary statements of the accused were obtained under duress and are not admissible. For this proposition he had relied on 1983 Cri LJ NOC 188 (Orissa) (State of Orissa v. Kapildeo Singh) and in 1992 Cri LJ 1888 (Andh Pra) (N. S. R. Krishna Prasad v. Directorate of Enforcement Loknayak Bhawan Khan Market, New Delhi) it has been held that while recording the statement under S. 164, Cr. For this proposition he had relied on 1983 Cri LJ NOC 188 (Orissa) (State of Orissa v. Kapildeo Singh) and in 1992 Cri LJ 1888 (Andh Pra) (N. S. R. Krishna Prasad v. Directorate of Enforcement Loknayak Bhawan Khan Market, New Delhi) it has been held that while recording the statement under S. 164, Cr. P. C. , the Magis trate must administer warning or caution as con templated under S. 164 (2), Cr. P. C. , to the con cerned person that it will be used against him. This is not the case here. In this case, there was also nothing on record to hold that these state ments Exts. 7 and 8 were obtained under duress except the fact that they were under arrest and hand-cuff. Although Ext. 1 shows the place of seizure as under water but it also shows that it was seized from the present petitioners. Mere fact that other accused persons have been acquitted will not be a ground for the acquittal of the present petitioners as the property seized was from them and not from the other accused acquitted. Ext. 1, seizure memo has been amply proved. Therefore, the rulings cited by the learned counsel for the petitioner in this case are not applicable to the facts of the present case. Consequently, the revi sion petition has no force and is accordingly, dismissed. Petition dismissed.