Of Madhya Pradesh Vs. Mukesh & Ors  Insc 685 (19 October 2006)
Sinha & Dalveer Bhandari
out of S.L.P. (Crl.) No. 640 of 2006] S.B. SINHA, J :
were working as reservation clerks. They were posted at Indore Railway Station.
The Assistant Sub Inspector of General Railway Police, Indore, on an information received by him
that one person had illegally been purchasing tickets from reservation
counters, came to the reservation office and in the process apprehended a
person named Suresh Shah. He was from Mumbai. From a search conducted, 94
tickets of different trains and some filled up as well as some unfilled
reservation demand forms were recovered from him. A sum of Rs. 33,403/- was
also found in his possession. A First Information Report was lodged. Allegedly,
during investigation of the said case, he was found to have been carrying
business in procuring reservation tickets illegally. Respondents herein were
said to have abetted in commission of the said offence. On the said charge,
Respondents herein with the aforementioned Suresh Shah were prosecuted.
the said Suresh Shah was charged under Section 143 (1) of the Railway Act,
1989, Respondents herein were charged under Section 143(2) thereof. When the
case was at an advanced stage, the said Suresh Shah absconded. The trial,
however, was concluded against Respondents.
were found guilty of commission of the offence charged against them and were
sentenced to undergo 3 years' rigorous imprisonment and to pay a fine of Rs.
10,000/- in default whereof they were directed to undergo further 6 months
rigorous imprisonment. They preferred an appeal thereagainst before the
Sessions Judge which was transferred to the Court of 6th Additional Sessions
Judge, Indore and registered as Criminal Appeal
No. 78 of 1999. The said appeal was dismissed by an order dated 1.05.2002. A
revision application was filed before the High Court by them which by reason of
the impugned judgment has been allowed. The State of Madhya Pradesh is, thus, before us.
Datta Makhija, learned counsel appearing on behalf of Appellant, principally
raised two contentions before us. Firstly, it was submitted that although there
is no direct evidence as against Respondents herein but from the circumstantial
evidence adduced by the prosecution, it must be held to have been proved that
the railway tickets were being clandestinely sold in black market and unless
Respondents had abetted the main accused Suresh Shah and could not have been found
to be in possession of 80 tickets involving 94 reservations. It was contended
that Respondents were found to have issued the tickets and keeping in view the
timings of issuance thereof, as has been noticed at paragraph 21 of the
judgment of the learned Trial Judge, it would have been impossible for the said
Suresh Shah to book so many tickets within a few hours, viz., from 0933 hrs. to
also submitted that Respondents did not raise any particular defence. The High
Court, the learned counsel would submit, also committed a serious error in
opining that Respondents had not been asked about the circumstantial evidence
or evidence appearing against them by the learned Trial Judge while examining
them under Section 313 of the Code of Criminal Procedure.
P.N. Misra, learned senior counsel appearing on behalf of Respondents, on the
other hand, supported the judgment of the High Court.
embarking upon the rival contentions of the parties, we may briefly notice the
admitted facts. At the relevant time, 11 reservation counters were functioning
at the Indore Railway Station. Reservation offices at the said place function
from 0800 hours to 1400 hours and then from 1410 hours to 2000 hours. An
employee works only for six hours in one reservation counter. Two of the
reservation clerks were absent. The offence is said to have taken place on 2nd October, 1995, i.e., just before the ensuing Durga
Puja festival. There were long queues. Ordinarily, minimum 2-3 minutes' time
was required for issuance of one ticket.
a circular was issued in terms whereof one reservation form could be given to
one person. He, however, would be entitled to ask for reservation of six seats
for passengers. If one person intends to obtain more than one reservation form,
he is required to take permission from Divisional Commercial Manager. However,
indisputably a person intending to obtain reservation for more than six persons
can make his associates stand in the queue or come again and again demanding reservation
forms. During Diwali, Dussehera and Summer holidays, in view of rush,
admittedly at least 20 persons remain in queue in each reservation window.
maintained in the reservation office had not been seized.
excess amount was found at the cash counter. No extra cash was also found on
the person of Respondents.
reservation forms, handwriting of the accused Suresh Shah was allegedly found.
It stands admitted that the reservation forms were handled in different
counters. Out of the six accused persons, three were in the morning shift and
three were in the evening shift.
the timings of issuance of tickets, as noticed by the learned Trial Judge at
paragraph 21 of its judgment, it appears that two tickets were found to have
been issued at the same time from two counters.
learned Trial Judge in his judgment proceeded on the basis that the accused
Nos. 2 to 7 had not acted in good faith as envisaged under Section 186 of the
fact that more than one ticket had been issued from different counters at the
same time is not disputed. The possibility of the said Suresh Shah to have
associates with him who presented reservation forms in different counters
cannot, thus, be ruled out. No doubt Respondents while discharging their public
duties were required to maintain transparency, but admittedly the Investigating
Officer did not conduct any investigation as to whether the said Suresh Shah
who allegedly had been carrying on systematic business in procuring reservation
for passengers, had any associate or not.
a resident of Bombay. According to the prosecution he
used to operate from the said place. Nothing has been brought on records to
show as to whether he had regularly been operating from Indore or not. The prosecution is silent
in regard thereto. Reservation forms might have been filled up by Suresh Shah
but then the possibility that Respondents who were working in three different
counters on two different occasions might not have any hands therein cannot be
ruled out. They were not expected to verify the handwritings of a person while
issuing tickets. They as noticed hereinbefore, were required to deal with a
person standing before them very quickly.
the handwriting of one person in different forms could have been checked by
Respondents is open to guess. Only for bulk tickets, approval was to be taken
but as noticed hereinbefore an associate of the same person may stand in the
queue and demand reservation forms from the reservation windows on more than
one occasion. Once a filled-up form is passed over, the reservation clerks had
admittedly no discretion in the matter but to issue tickets.
143(1) of the Railways Act reads, thus:
Penalty for unauthorised carrying on of business of procuring and supplying of
any person, not being a railway servant or an agent authorised in this behalf.—
on the business of procuring and supplying tickets for travel on a railway or
for reserved accommodation for journey in a train; or
purchases or sells or attempts to purchase or sell tickets with a view to
carrying on any such business either by himself or by any other person, he
shall be punishable with imprisonment for a term which may extend to three
years or with fine which may extend to ten thousand rupees, or with both, and
shall also forfeit the ticket which he so procures, supplies, purchases, sells
or attempts to purchase or sell:
that in the absence of special and adequate reasons to the contrary to be
mentioned in the judgment of the court, such punishment shall not be less than
imprisonment for a term of one month or a fine of five thousand rupees." A
person in view of the aforementioned provision can be said to have committed an
offence if he has been carrying on a business. The expression
"business" implies continuity.
term 'abetment' has not been defined in the Railways Act. What would constitute
abetment is contained in Section 107 of the Indian Penal Code, which reads,
Abetment of a thing.A person abets the doing of a thing, who First.--
Instigates any person to do that thing; or Secondly.Engages with one or more
other person or persons in any conspiracy for the doing of that thing, if an
act or illegal omission lakes place in pursuance of that conspiracy, and in
order to the doing of that thing; or Thirdly.-- Intentionally aids, by any act
or illegal omission, the doing of that thing." A person, it is trite,
abets by aiding, when by any act done either prior to, or at the time of, the
commission of an act, he intends to facilitate and does in fact facilitate, the
commission thereof would attract the third clause of Section 107 of the Indian
Penal Code. Doing something for the offender is not abetment. Doing something
with knowledge so as to facilitate him to commit the crime or otherwise would
Admittedly, the first and second part of the said provision has no application.
No illegal omission on the part of Respondents has been established. Admittedly
in issuing the tickets, Respondents have not violated any rules. Ex facie, they
have also not violated any direction contained in any circular issued by an
appropriate authority in that behalf.
entire prosecution is based on the purported confession of Suresh Shah. A
statement of an accused would be admissible against a co-accused only in terms
of Section 30 of the Indian Evidence Act. Such a statement of co-accused was
required to be corroborated by adduction of independent evidence. The
prosecution has not adduced any independent evidence to show that Respondents
had intentionally aided the said Suresh Shah and thereby abetted him in
commission of an offence under Section 143(1) of the Indian Railways Act.
may be correct in contending that the High Court has made a wrong observation
that all the circumstances appearing against Respondents had not been put in
their examination under Section 313 of the Code of Criminal Procedure but its
ultimate conclusion on the said issue is not correct. We have been taken
through the questions asked to all Respondents by the learned Magistrate. The
circumstances appearing against Suresh Shah and Respondents were concededly
different. However, one questionnaire common to all was prepared. 90% of the
questions in the said questionnaire were to be put to Suresh Shah, but
strangely the same questions had been put to all Respondents. Except one
question, viz., "what you want to say in your defence?", not only
similar questions had been put, similar answers had been recorded. Strangely
enough, even questions required to be put to each of the accused persons
separately have been made part of the same questionnaire. Such common questions
framed and asked to all the accused persons did not subserve the requirements
of Section 313 of the Code of Criminal Procedure. To the said extent, the High
Court's observations cannot be said to be unsustainable.
it must be borne in mind that we are dealing with a judgment of acquittal
passed by the High Court. If two views are possible, ordinarily this Court
would not interfere therewith. The State has not been able to show any
illegality in the judgment of the High Court. We, therefore, do not intend to
interfere therewith. The appeal is dismissed.