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Jharkhand High Court · body

2019 DIGILAW 2077 (JHR)

Devendra Halder v. State of Jharkhand

2019-12-20

DEEPAK ROSHAN

body2019
ORDER : 1. Since issues in both the aforesaid revision applications are connected with each other hence both these applications are being taken up together and disposed of by this common judgment. 2. The instant application is directed against the judgment dated 30.6.2014 passed by the learned Additional Sessions Judge-I, Sahibganj in Criminal Appeal No. 6 of 2012, whereby the appeal preferred by the petitioners of both the aforesaid applications has been dismissed and the judgment of conviction and order of sentence dated 23.12.2011 passed by the learned Railway Judicial Magistrate, First Class, Sahibganj in R.P.S. No. 9 of 1998 (T.R. No. 26 of 2011), whereby the petitioners were found guilty for the offence punishable under Section 3(a) of the R.P. (UP) Act and were sentenced to undergo RI for two years each along with fine of Rs. 1,000/- each, has been affirmed. 3. The prosecution story in brief, as reflected from the written report of complainant, S.S. Paswan, ASI/RPF/Barharwa is that on the basis of confessional statement of accused Sukchand Sk. a raid was conducted on 28.4.1998 at the shop and godown of other co-accused Habbu Sk. @ Gulam Hussain and Manzoor Sk. from where Railway properties i.e. bearing plate, brake block, tie bar, CST-9 plates, ACS wire, steel trough sleeper etc. were recovered for which no valid documents or authority were produced. It has further been alleged that at the time of raid both the accused persons namely Habbu Sk. and Manzoor Sk. fled away from the place of occurrence, as such the accused persons, namely, Deanand Haldhar and Tullu Sk. who were running the shop and godown on that point of time were arrested and in their presence, seizure list was prepared and copy of the same was given to them. 4. The learned counsel for the petitioner, at the outset, submits that he will confine his argument only on the question of law and he will not canvass any argument on evidence. He further submits that the learned trial court has committed an error that copy of seizure list has not been provided to the accused persons who were running the shop and godown, as such the whole factum of seizure becomes doubtful inasmuch as there is no examination of any independent witness which has been taken into consideration. 5. He further submits that the learned trial court has committed an error that copy of seizure list has not been provided to the accused persons who were running the shop and godown, as such the whole factum of seizure becomes doubtful inasmuch as there is no examination of any independent witness which has been taken into consideration. 5. He further submits that Rule 222.1 of RPF Rules requires that all the cases of crime affecting railway property shall be entered in the “localized” crime register or in the “un-localised” crime register. In the instant case the said register was not placed before the learned trial court and has been exhibited which is mandatory as per the settled principle of law. He further submits that the procedure outlined under the RPF Rules is that there should be entries in the crime register and the same should be produced and exhibited before the court. He relied upon the judgment passed by the Hon'ble Delhi High Court in the case of The State/Railway Protection Force vs. Raju. 6. Based upon the aforesaid judgment, the learned counsel for the petitioners submits that the order is wholly erroneous and not sustainable in the eyes of law. 7. Per contra, the learned A.P.P. supports the impugned orders and submits that the learned trial court has not committed any error in convicting the petitioners. Further this crime is rampant in the area as such no relief should be granted by this Court. 8. Heard the learned counsel for the petitioners and the learned A.P.P. for the State. 9. For proper appreciation of this case few provisions of R.P.F. Rules, 1987 requires to be mentioned. 10. Rule 222.1 of RPF Rules, 1987 requires that all the cases of crime affecting railway property shall be entered in the “localised” crime register” or in the “un-localised” crime register, as the case may be. Rule 222.1 is in relation to “theft or pilferages or misappropriation of the railway property.” Railway property could be “booked consignment and railway material.” 11. Rule 222.1 requires the reports of crimes against railway property to be entered in the records and registers as specified by the Directives. Rule 221.2 requires the Post Commander to convey to the higher authorities, as may be specified by the directives, the gist of the report of the crime against the railway property. Rule 222.1 requires the reports of crimes against railway property to be entered in the records and registers as specified by the Directives. Rule 221.2 requires the Post Commander to convey to the higher authorities, as may be specified by the directives, the gist of the report of the crime against the railway property. The Post Commander is expected to make all possible efforts to investigate the case, recover the stolen property, arrest the offenders and put them up for trial before the Court. Under Rule 221.3, where the Post Commander is not empowered to take action for any crime against the railway property, he shall lodge a complaint with the police station having jurisdiction. Under Rule 221.4, if as a result of inquiry, the-Post Commander finds that no offence actually took place, then he could, after obtaining orders from the Divisional Security Commissioner, expunge the case from his records and inform the police station. 12. A collective reading of Rules 221.1 and 221.2 of RPF Rules, 1987 shows that the requirement of maintaining a record of crime against railway property is not only mandatory for the purpose of an internal inquiry in every case but also preparatory to the case being registered as a criminal case with the localised police station having jurisdiction. In other words, the inquiry at the level of RPF precedes the investigation by the police since the complaint would be filed on the basis of such inquiry by the RPF. 13. Rule 223 deals with seizures and recoveries of railway property. All seizures or recoveries of railway property are to be entered in Malkhana register and an entry to that effect is to be made in the concerned crime register after it is classified as: (a) pertaining to cases in which theft or shortage memo has been issued or received and (b) where no such memo has been issued or received. Further, Rule 223.1 states that “In respect of the first category, whenever any property is recovered or criminals are taken into custody, relevant entries shall be made in the “Localised Crime Register” against the particular crime already registered. Such a seizure shall not be reflected separately in the RP (UP) Act Register though such seizures shall invariably be taken into account for compilation of statistics in respect of action under the Railway Property (Unlawful Possession) Act, 1966.” 14. Such a seizure shall not be reflected separately in the RP (UP) Act Register though such seizures shall invariably be taken into account for compilation of statistics in respect of action under the Railway Property (Unlawful Possession) Act, 1966.” 14. The above provisions abundantly make it clear that the actions taken by the RPF have to be strictly in terms of the procedure outlined under the RPF Rules, 1987, and any infraction of the said Rules would invalidate such action. There can be no doubt that as far as the present case is concerned, prosecution has miserably failed to manifest before the learned trial court that the various documents which were produced before the Court, actually formed part of the original railway record maintained in terms of the aforementioned Rules. 15. Under the RPF Regulations, 1966, there was a requirement for the RPF to maintain registers which would show the movement of the Railway staff on patrolling duty. Although the said Regulations stand repealed, it is not known whether under Rule 268 of the RPF Rules, 1987, the proforma of the records and registers for maintaining the entries of such movement have been prescribed. In any event, when the question arises whether an RPF Officer was on patrolling duty at a particular point in time when the suspect was apprehended, the burden would be on the RPF to prove before the Court by producing such records and registers in original that fie movement of the RPF Officers involved in the arrest is reflected in the register maintained for that purpose. 16. Hon'ble Delhi High Court in the case of The State/Railway Protection Force vs. Raju has laid down the law in Para-22 and 24, which is reproduced herein-below: “22. The Court accordingly holds that the procedures outlined under the RPF Rules, 1987, and, in particular, those regarding entries to be made in the crime registers, both as regards the theft of railway property as well as the apprehension of a suspect and recovery of the stolen railway property from him, are mandatory. 24. The insistence on the procedure established by law being followed is essentially on account of the fact that the vast powers vested in the RPF under the RP (UP) Act and the RPF Rules has the potential of depriving a person of his liberty and abrogating his constitutional rights. 24. The insistence on the procedure established by law being followed is essentially on account of the fact that the vast powers vested in the RPF under the RP (UP) Act and the RPF Rules has the potential of depriving a person of his liberty and abrogating his constitutional rights. The provisions would, therefore, have to be interpreted strictly and any violation of the mandatory procedure would result in the benefit of doubt being given to the accused.” 17. In the instant case the learned trial court as well as the learned appellate court has failed to consider that the “Crime Register” was not exhibited in order to demonstrate the seizure and factum of entire episode. This laid the judgment cryptic and erroneous. 18. In view of the aforesaid discussion and provisions of RPF Rules, 1987 and the judicial pronouncement, the instant revision application is allowed and the judgment dated 30.6.2014 passed by the learned Additional Sessions Judge-I, Sahibganj in Criminal Appeal No. 6 of 2012 and the judgment of conviction and order of sentence dated 23.12.2011 passed by the learned Railway Judicial Magistrate, First Class, Sahibganj in R.P.S. No. 9 of 1998 (T.R. No. 26 of 2011) are, hereby set aside. 19. The petitioners are discharged from the liability of their bail bonds. 20. Let the lower court record be sent back to the concerned court forthwith.