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2005 DIGILAW 494 (GAU)

Sudhangshu Chandra Dey v. State of Assam

2005-06-30

P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. This revision is directed against the judgment and order dated 21.2.1997 passed by the learned Sessions Judge, Jorhat in Criminal Appeal No. 34 of 1996. 2. Heard Mr. J.M. Choudhury, learned Senior Advocate assisted by Mr. D. Talukdar, learned Counsel for the Petitioner and Mr. S.B. Singha, learned Public Prosecutor, Assam for the Respondents. 3. In CR Case No. 244 of 1994 the accused Petitioner was tried by the Special Judicial Magistrate, (Railway) Tinsukia for commission of the offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, (for short the Act) on the allegation that on 30.10.1994 while searching the house of the accused Petitioner some railway properties namely - G.I . Wire, A.C.S.R. wire, Cable wire, etc. were found in possession of the accused Petitioner. On verification and examination, the seized wire were found to be railway properties and thereafter the accused was tried and the learned trial Court convicted the accused Petitioner and sentenced him to imprisonment for one year and to pay a fine of Rs. 500/- in default further imprisonment for one month. 4. Feeling aggrieved, the Petitioner preferred Criminal Appeal No. 34/96 and vide impugned judgment dated 21.2.1997 the learned appellate Court dismissed the appeal and maintained the order of conviction and sentence and hence the present revision. 5. In this case, as per prosecution allegation as many as nine items were recovered and seized from the possession of the accused. During trial, prosecution examined six witnesses and there is sufficient oral evidence regarding possession of these properties in the exclusive and conscious possession of the accused Petitioner. 6. Subhash Kr. Das P.W. 2 is a Telecom Inspector who was asked to examine the seized articles and he issued the certificates to the effect that the seized articles are Railway properties and they are exclusively used in the Railways. Although P.W. 2 was cross examined at length, we find that the defence failed to dislodge his testimony. The trial Court as well as the appellate Court accepted the evidence of P.W. 2 and the certificate Ext. A granted by this witness and on perusal of the evidence of P.W. 2 we also find no material to disbelieve P.W. 2 and hence hold that the seized articles are Railway properties. 7. The trial Court as well as the appellate Court accepted the evidence of P.W. 2 and the certificate Ext. A granted by this witness and on perusal of the evidence of P.W. 2 we also find no material to disbelieve P.W. 2 and hence hold that the seized articles are Railway properties. 7. In the present revision, the conviction and sentence of the Petitioner has been challenged mainly on the ground that the present prosecution is not maintainable in view of the provisions of Section 300 of the Code of Criminal Procedure. It is submitted that for the seized articles, which were the subject-matter in CR No. 244 of 1994, the accused Petitioner was tried by the SDJM (S), Jorhat in GR Case No. 1146 of 1994 and the accused Petitioner was acquitted and hence when the Petitioner has been tried for the same offence once and acquitted he cannot be tried again in view of the provisions of Section 300, Code of Criminal Procedure. 8. In the present case, there is no dispute at the Bar that the Petitioner Sudhangshu Chandra Dey was the accused in GR Case No. 1146 of 1994 and in that case the Petitioner was acquitted. 9. Section 300, Code of Criminal Procedure is based on the English Principle of autrefois acquit and it is available to a person when he is tried again for the same offence or on same facts for any other offence for which a different charge from the one made against him might have been under Section236, Code of Criminal Procedure. 10. The case of the Respondent Railways is that there was a particular incident of theft of cable at Mariani and during investigation of the above case the articles in question were seized and thereafter the accused persons were tried for commission of offence under Section 379/414 IPC. However, during trial, prosecution failed to establish that the seized articles are the stolen properties of that particular case and as such the accused Petitioner was acquitted. It is, however, submitted that the seized articles are Railway properties. However, during trial, prosecution failed to establish that the seized articles are the stolen properties of that particular case and as such the accused Petitioner was acquitted. It is, however, submitted that the seized articles are Railway properties. The accused Petitioner was prosecuted in the present case under Section 3(a) of the Railway Properties (Unlawful Possession) Act which is a special Act and the accused could not have been tried for commission of offence under Section 3(a) of the Act in the earlier GR case as the offence under Section 3(a) is a different offence. 11. In the case of State of Bombay v. S.L. Apte, AIR 1961 SC 578 a Constitution Bench of the Apex Court held that where the offences are distinct, there is no question of the rule of double jeopardy as embodied under Article 20(2) of the Constitution being applicable. In the case of State of Bombay (supra), the accused was convicted for the offence under Section 409IPC and subsequently he was again charged for the offence under Section 105 of the Insurance Act. The trial Court as well as the Bombay High Court held that the subsequent prosecution under Section105 of the Insurance Act is barred in view of the provisions contained under Article 20(2) of the Constitution. The Apex Court, however, held that as the offence under Section 409 IPC and Section105 of the Insurance Act are distinct offence provisions of Article 20(2) is not applicable. The same view was taken by the Apex Court in the case of Kharkan v. State of U.P. AIR 1965 SC 83 . The decision in the State of Bombay was reiterated in the case of Harjinder Singh v. State of Punjab, (1985) 1 SCC 422 . 12. In the present case, we find that the accused Petitioner was tried in the earlier case for commission of the offence of theft of particular property belonging to the Railways. The charge failed. Subsequently, the accused was again tried for unlawful possession of Railway properties. Section 3(a) of the Act provides that if any person is found in unlawful possession of Railway properties, he is guilty of the offence under Section 3(a) of the Act. The charge failed. Subsequently, the accused was again tried for unlawful possession of Railway properties. Section 3(a) of the Act provides that if any person is found in unlawful possession of Railway properties, he is guilty of the offence under Section 3(a) of the Act. The offence under Section 379/411 IPC is altogether distinct from the offence under Section 3(a) of the Act as in the earlier case the allegation is in respect of a particular incident of theft or dishonest possession of the stolen properties of that particular incident of theft. On the other hand, the offence under Section 3(a) of the Act is broad based and any Railway property found in possession of a person is made to be brought within its parameter and the person in whose possession the property is found or from whom it is recovered, becomes liable under the Act. Further, offences under Section 3(a) of the Act are to be investigated by special agency. Even Railway property unlawfully obtained becomes an offence. Moreover, the offence under Section 3(a) of the Act are non-cognizable and are required to be enquired into by members/officers of the Force which means the Railway Protection Force. The offence under Section379 IPC and the offence under Section 3(a) of the Act could not have been clubbed together under Section 223 of the Code of Criminal Procedure. 13. In view of the aforesaid, we hold that the subsequent prosecution of the present Petitioner in the present case is not barred under Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure. 14. In the result, the revision petition has got no merit and it is accordingly dismissed. Send down the records. 15. The Railway Magistrate shall take the accused Petitioner in custody to serve out the sentence and pay the fine. Petition dismissed.