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2015 DIGILAW 114 (RAJ)

Saleem Bux v. State of Rajasthan

2015-01-14

VIJAY BISHNOI

body2015
JUDGMENT 1. - This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 20.11.2013 passed by the Additional Sessions Judge No.3, Jodhpur Metropolitan (hereinafter referred to as 'the revisional court') whereby the revisional court while dismissing the revision petition filed by the petitioner has affirmed the order dated 22.5.2012 passed by the Additional Chief Judicial Magistrate (Railway), Jodhpur Metropolitan (hereinafter referred to as 'the trial court') whereby the charges have been framed against the petitioner for the offence punishable under Section 3 of the Railway Properties (Unlawful Possession) Act, 1966 (hereinafter referred to as 'RP (UP) Act'). 2. Learned counsel for the petitioner has argued that there is no iota of evidence available on record to suggest that the petitioner has committed any offence under Section 3 of RP (UP) Act. It is contended that railway property was recovered from the coaccused Kamlesh on 20th of February, 2009 and an entry to this effect is made in Malkhana register, however, the police has again shown the recovery of the said railway property from the petitioner on 21.2.2009 and only on that basis, the charge sheet has been filed against the petitioner for the offence punishable under Section 3 of RP (UP) Act. Learned counsel for the petitioner has also argued that the petitioner has been made accused in the case only on the basis of the statement of co-accused Kamlesh and, therefore, the order of framing charges against the petitioner is liable to be quashed. It is also argued by learned counsel for the petitioner that the revisional court has not taken into consideration these aspects of the matter and has illegally rejected the revision petition filed by the petitioner. 3. Learned counsel for the petitioner has placed reliance upon the decision of this Court rendered in Pradeep Kumar Jain v. State of Rajasthan reported in RLW 1999(2) Rajasthan page 268. 4. Heard learned counsel for the petitioner and perused the impugned orders and material placed on record. 5. The trial court, after taking into consideration exhibit P/17 - arrest memo and recovery memo prepared by the investigating agency at the time of arrest of the petitioner, has held that in the Exhibit P/17, the description of railway property recovered from the possession of the petitioner has been given. 5. The trial court, after taking into consideration exhibit P/17 - arrest memo and recovery memo prepared by the investigating agency at the time of arrest of the petitioner, has held that in the Exhibit P/17, the description of railway property recovered from the possession of the petitioner has been given. The trial court has also taken into consideration the statement of Lakhan Singh (PW- 3), the Investigating Officer, who has specifically stated that entry in the Malkhana register, regarding the recovery of the railway property, has been made on account of some clerical error and a wrong date i.e. 20.2.2009 has been mentioned. The trial court has observed that Lakhan Singh (PW-3) has specifically stated in his statement that the recovery of the railway property from the possession of the petitioner has been made on 21.2.2009 only. The trial court has observed that simply on the basis of clerical error committed in the Malkhana register, the petitioner cannot be discharged. The revisional court has also taken into consideration all aspects of the matter and refused to interfere in the order passed by the trial court. 6. After going through the impugned orders as well as the material available on record particularly the arrest and seizure memos pertaining to the petitioner, this Court is also of the opinion that in the arrest memo of the petitioner, the description of railway property recovered at the instance of the petitioner is given and, therefore, at this stage, it cannot be said that the police has filed charge sheet against the petitioner before the trial court for the offence punishable under Section 3 of RP (UP) Act without any basis. 7. So far as the law laid down by this Court in Pradeep Kumar Jain's case (supra) is concerned, the facts of that case are quite distinguishable from the facts of the present case because in this case, the petitioner has not been charged merely on the basis of statement of co-accused, but has been charged because the police has recovered railway property from the possession of the petitioner. 8. In view of above discussions, this Court does not find any force in this criminal misc. petition. The same is, therefore, dismissed. The stay petition is also dismissed.Petition dismissed. *******