Chandra Sen Gupta Vs. Supdt & Remembrancer of Legal Affairs  INSC 415
(8 October 1993)
K. JAYACHANDRA (J) REDDY, K. JAYACHANDRA (J) RAY, G.N. (J) CITATION: 1994 SCC
(1) 429 JT 1993 (6) 112 1993 SCALE (4)36
Judgment of the Court was delivered by K.JAYACHANDRA REDDY, J.- Both these
appeals are filed against the common judgment of the High Court of Calcutta
reversing the order of acquittal passed by the Sub- Divisional Judicial
accused were tried by the Sub-Divisional Judicial Magistrate for an offence
punishable under Section 3(a) of the Railway Property (Unlawful Possession)
Act, 1966 ('Act' for short). According to the prosecution, on August 20, 1972, M.K. Tewari, PW 1 was posted at Siliguri
Junction Diesel Shed as S.I. of R.P.F. On that day at about 3.30 hrs.
found 6/7 persons pushing a hand trolley towards gate No. 5 leading to shunting
neck which was loaded with-,some heavy materials. PW 1 suspected the activities
of those persons and raised an alarm by blowing his whistle. As soon as he came
out of gate No. 3 he also found A.S.I., PW 3, and another Rakshak near Y.M.
Office. He told them to arrest the persons for moving the trolley. All of them
rounded them up but three of them managed to escape and they +From the Judgment
and Order dated February 10, 1982 of the Calcutta High Court in Govt. Appeal
No. 17 of 1975 430 could arrest three accused persons namely P.C. Sen Gupta, K.
Appanaidu and Budhi Kr. Routh, original accused 4 to 6. PW 1 and the other
officer found that the trolley was loaded with two radiator cores. PWs 1 and 3
blew their whistles obviously to attract the attention of other Rakshaks on
duty. Original accused 1 to 3 who were the Rakshaks and were on duty on that night,
came 15 to 20 minutes late. The prosecution case against them is that they
wantonly derelicted their duties of keeping watch with a view to facilitate
other culprits to take away the railway property in the trolley and thus they
committed an offence under Section 114 IPC read with Section 3(a) of the Act.
The accused pleaded not guilty. The learned Magistrate acquitted A-1 to A-3 on
the ground that there was no proof of abetment of the offence by them. He also
acquitted A-4 to A-6 on the ground that all the ingredients of Section 3 of the
Act are not made out. The High Court held that A-1 to A-3 were not found on
duty at the time allotted to them and it is only after blowing of whistles by
PW 1 and others that they came and their conduct in coming late would show that
they facilitated the commission of the offence. The High Court also held that
A-4 to A-6 were actually found moving the trolley with the railway property
after removal and therefore an offence under Section 3(a) was proved and
accordingly set aside the order of acquittal and convicted all the six accused,
A-1 to A-3 were convicted under Section 3(a) of the Act read with Section 1 14
IPC and sentenced to undergo three years' rigorous imprisonment. A-4 to A-6
were convicted under Section 3(a) of the Act and sentenced to undergo three
years' rigorous imprisonment. Questioning the same, the present appeals have
been filed. Criminal Appeal No. 266 of 1982 is filed by A-1 Beda Nand Yadav and
A-2 Monilal Dutta and Criminal Appeal No. 713 of 1983 is filed by A-4 to A-6.
A-3, Charu Bhushan Dass is not before us.
counsel appearing for A-1 and A-2, Rakshaks, submitted that there is no
material whatsoever that they along with another Rakshak Charu Bhushan Dass
abetted the commission of the offence by the other accused. It is also
submitted that Siliguri Loco Shed is very big one and the mere fact that these Rakshaks
who were on allotted duty on that night came a little late after hearing the
whistles, would not necessarily lead to a conclusion that they abetted the
offence. PW 1 is the main witness in this case. He deposed that he saw six
persons pushing the trolley and he blew the whistle and rounded them up but
only three could be arrested. His evidence establishes that A-4 to A-6 were
caught red-handed along with others who escaped and they were moving the
trolley loaded with railway property namely two radiator cores. The reasoning
of the learned Magistrate that the possession as such was not proved is
once they moved the property from a proper place that itself shows that they
came into possession and were moving the same out of the shed. Therefore A-4 to
A-6 have rightly been convicted.
also stated that he whistled several times but A- 1 to A-3 came only after 15
to 20 minutes. In the cross- examination he stated that after 431 blowing the
whistle, he rushed through gate No. 3 outside the shed which was about 70 to 80
yards away. PW 3, A.S.I., who joined PW 1 also deposed that three persons could
be apprehended. Then he also stated that after arresting the accused he again
blew the whistle and A-1 to A-3 came and the arrested accused were handed over.
In the cross- examination he did not say that A-1 to A-3 came after 15 to 20
minutes. In any event the question is whether the dereliction of duty as such
would amount to abetment. In the instant case, A-1 to A-3 tried to explain away
by stating that they were patrolling a large area of the shed.
admittedly it was their duty which they have grossly derelicted and the same amounted
to culpable negligence which resulted in the offence being committed by the
other accused. But the same may not amount to abetment. In that view their
conviction cannot be sustained. However, we are of the view that the gross
dereliction of duty on the part of these accused, whose duty was to protect, is
a serious act and they are accordingly admonished. We also make it clear that
they do not deserve to hold such posts and the question of their being going
back and joining the service does not arise. Subject to these directions
Criminal Appeal No. 266 of 1982is partly allowed.
to A-6, appellants in Criminal Appeal No. 713 of 1983, were caughtred-handed.
An offence under Section 3(a) of the Act is punishable with imprisonment or
with fine or with both. In this case the possession of the property in the
strict sense was not there. However, an offence under Section 3(a), as already
held, is made out. The offence itself took place in the year 1972 and the
appellants have undergone some imprisonment. Therefore while confirming their
conviction, we reduce the sentence to the period already undergone. In
addition, we sentence each of them to pay a fine of Rs 1000 in default of
payment of which to undergo RI for three months. Accordingly Criminal Appeal
No. 713 of 1983 is also partly allowed.