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2003 DIGILAW 421 (JHR)

Saifuddin Ansari v. State Of Bihar

2003-04-02

AMARESHWAR SAHAY

body2003
ORDER Amareshwar Sahay, J. 1. In this present application the petitioner has prayed for quashing of the entire criminal prosecution being BKSC/ RPF Post Case No. 6/98 registered under Sections 3 of the Railway Property (Unlawful Possession) Act (Herein after referred to as the R.P.U.P. Act) and also the order dated 17-2-1999 taking cognizance passed by the learned Railway Magistrate, Dhanbad, against the accused persons namely Sagir Ansasri, Sukra Majhi, Hriday Chowdhury, Saifuddin Ansari, Lachhu Oraon and Lakhindar Singh. 2. The facts of the case in brief are that the prosecution report in the form of complaint dated 9-2-1999 was submitted by one Sri. R.S. Prasad I.P.F./BKSC alleging therein that in the night of 3/4-2-1998 one portable generator was stolen away from Railway Medium carriage Shed, Bokaro. In connection with the enquiry of the said theft. On 13-10-1998 two outsiders namely Sukhra Majhi and Hriday Chowdhury were arrested in Unlawful possession of Railway Property, and during their interrogation they disclosed that they had committed theft of Railway Generator from medium carriage shed/Bokaro. They also disclosed the names of their associates as Lakhindar Singh and Lachhu Oraon and they stated that the said stolen generator was sold to one person of Siwandeh for Rs. 5000/-. It is further alleged that on their pointing out, the said stolen generator was recovered and seized from the possession of the accused Sagir Ansari, which was kept in the house owned by Saifuddin Ansari (Petitioner). The petitioner (Saifuddin Ansari) is the father of accused Sagir Ansari. No valid paper could be produced regarding the receipt of the said railway property i.e. generator by the accused persons. 3. Thereafter the statement of Sagir Ansari was recorded by R.P.F. personnel. In the said statements, Sagir Ansari confessed his guilt and stated that his father and other family members have no knowledge regarding the illegal, possession of the said generator. 4. M. Mahesh Tiwari learned counsel for the petitioner submitted when the said accused, Sagir Ansari made statements before the R.P.F. personnel confessing his guilt and recovery of the railway property from his exclusive possession, then in that event the learned Railway Magistrate committed an error in taking cognizance against the petitioner, Saifuddin Ansari i.e., the father of Sagir Ansari. 5. On the basis of the above facts Mr. 5. On the basis of the above facts Mr. Tiwari submits that there is no iota of evidence so as to connect this petitioner in the present case registered under R.P.U.P. Act. No case at all is made out against him and therefore, the cognizance taken by the trial Court against the petitioner is liable to be quashed. 6. A counter affidavit has been filed on behalf of the opposite party No. 2 duly sworn in by the Inspector Railway Protection Force, Bokaro Steel City in which it has been stated that in course of the enquiry the petitioner, Saifuddin Ansari also gave his statement where he admitted that seized generator was recovered from his house and he was aware that the same was illegally purchased. A copy of the statement has been annexed as Annexure A to the counter affidavit. 7. Mr. Basab Chatterjee the learned counsel for the opposite party No. 2 relying on the decision reported in AIR 1974 SC 2136 : (1974 Cri LJ 1465), followed by AIR 1981 SC 635 : (1981 Cri LJ 38), submitted that the admission/confession of the accused made before the Official of the Railway Protection Force during the enquiry under Section 8(1) of the Railway Property (Unlawful Possession) Act is admissible in evidence and therefore, on the basis of the admission made by the petitioner that generator was recovered from the house of the petitioner, was admissible in evidence and therefore, the Court below has rightly taken cognizance against the petitioner also. He further submits that Section 3(a) of the R.P.U.P. Act may not be applicable in the case of the petitioner but Section 4 of the said Act would certainly apply because Section 4 of the R.P.U.P. Act provides that any owner or occupier of land or building, or any agent of such owner or occupier incharge of the management of that land or building, who willfully 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 both. 8. I have carefully perused the so called confessional statement of the petitioner which has been annexed as Annexure A to the counter affidavit as well as the confessional statements of Sagir Ansari which has been annexed as Annexure 3 to this application. 9. 8. I have carefully perused the so called confessional statement of the petitioner which has been annexed as Annexure A to the counter affidavit as well as the confessional statements of Sagir Ansari which has been annexed as Annexure 3 to this application. 9. Sagir Ansari has made categorical statements that he had purchased the generator at a cheaper rate and said generator was recovered from a room which was in his exclusive possession, and his father or any member who were residing jointly in the said house which belonged to his father had no knowledge at all about the possession of the said generator. From the confessional statements of Saifuddin Ansari (Petitioner) it appears that no where in his statements, he has stated that he had any knowledge regarding the fact that the said generator was a stolen railway property, rather he has stated that the said generator was recovered from the possession of the Sagir Ansari who was also living with him in his house. There was no other material collected by the police during the enquiry so as to connect this petitioner with the said unlawful possession of railway property. 10. The submission of Mr. Chatterjee is that Section 4 of R.P.U.P. Act would be attracted in case of the petitioner, cannot be accepted because of the reasons that Section 4 of R.P.U.P. Act envisages that a person who wilfully connives at an offence against the provision of the Act shall, be punishable as provided under the said provision of the Act. There was no material at all to give to a finding that this petitioner had in any way willfully connived in commission of the offence or any knowledge whatsoever that the generator kept in his house, was a stolen property. 11. In that view of the matter I find that there was nothing on record before the commission of the offence under the R.P.U.P. Act against the petitioner. 12. In the result this application is allowed and cognizance of the offence taken against the petitioner only, by the impugned order dated 17-2-1999 is hereby quashed.