Badri Vishal and another vs State of Madhya Pradesh

R.J. Bhave, J.

Both the applicants have been found guilty u/s 379 of the Indian Penal Code and have been sentenced to pay a fine of Rs. 150/-each; and, in default, simple imprisonment for 45 days.

When the revision came before me for hearing arguments I had issued a notice dated 12-2-1969 to the applicants to show cause why their sentence should not be enhanced.

The facts of the case, in brief, are that Rajendra Bahadur Singh (P. W. 2), the Assistant Sub-Inspector of the Railway Protection Force, Katni, was on duty on the night of 5th May 1965 at the New Katni Junction. At about 12.20. A.M., when he reached the Despatch Yard, along with P.L. Yadav (P. W. 4), the Sub-Inspector of the Railway Protection Force, he found the two applicants coming with Jholas (cloth bags) in their hands. On search of the said Jholas, it was found that each Jhola contained one lantern of the Dipti Metal Works, Calcutta. On being questioned, the two applicants admitted before the two witnesses that they had taken out the lanterns after opening a wagon which was lying in the Yard. The two lanterns were thereupon seized and a report was lodged against the two applicants.

Shri Rajendra Singh, learned counsel for the applicants, urged that there is no evidence for sustaining the conviction of the applicants. He pointed out that the only evidence tendered by the prosecution was to the effect that a certain wagon was tampered with ; but it was not proved that the wagon had any consignment of any lanterns and that any lanterns were missing from the wagon. He, therefore, urged that on the basis of the prosecution evidence it was not proved that the lanterns found with the two applicants were the lanterns removed from the wagon. It is no doubt true that this lacuna is left by the prosecution in its evidence. But that lacuna is made good by the extra-judicial confession made by the two applicants before Rajendra Bahadur Singh P. W. 2) and P.L. Yadav (P. W. 4) that they had removed the lanterns from the wagon after tampering with it. I do not find any reason to disbelieve the statement of these two witnesses that the applicants made the said confession before them. It may be noted that when the accused persons were examined by the trial Court for the first time on 31-5-1965, they did admit that they had removed the lanterns from the wagon and pleaded guilty to the charge, but subsequently an application was made on their behalf that the accused claimed a full trial and hence the trial was held and the accused were not convicted on their plea of guilty. Subsequently, of course, the accused persons denied to have stolen the goods from the wagon. But the fact remains that, to start with, they had admitted to have removed the lanterns from the wagon. This fact goes a long way to support the evidence of the two prosecution witnesses that the accused-applicants had admitted before them that they had removed the lanterns from the wagon. It has also come on record that the lanterns were new and unused. I am, therefore, satisfied that it is satisfactorily proved that the accused persons had removed the lanterns from the wagon.

Shri Rajendra Singh, however, urged that the confessions made before Rajendra Bahadur Singh (P. W. 2) and P.L. Yadav (P. W. 4) are not admissible in evidence, as they were made before the police officers. Shri Rajendra Singh urged that the two prosecution witnesses belonged to the Railway Protection Force established under the Railway Protection Force Act, 1957. He referred to various sections of the Act to show that they had the authority to make a search, to seize property and even to arrest persons. He therefore, urged that the Railway Protection Force was nothing but awing of the Police and hence the statements made before them were not admissible in evidence. In Badku Joti Savant Vs. State of Mysore, their Lordships of the Supreme Court noted that section 21(2) of the Central Excises and Salt Act, 1944 conferred on the Central Excise Officers the same powers as on Officer-in-charge of a police station; but this power did not include the power to submit a charge- sheet u/s 173 of the Code of Criminal Procedure. In this view of the matter, it was held:

Thus, though u/s 21(2) the Officer has powers of an Officer-in-charge of a police station when investigating a cognizable case the power is for purpose of enquiry u/s 21(1) and the power does not include power to submit a charge sheet u/s 173, Cr. P. C. Even if the broader view, viz., that a Central Excise Officer is a ''police officer'' is accepted mere conferment of powers of investigation like an officer-in-charge of a police station, into criminal offences u/s 9 of the Central Excise Act, does not make the officer a police officer.

On this reasoning, their Lordships further held :

......the statement made by the appellant to the Deputy Superintendent of Customs and Excise would not be hit by section 25 of the Evidence Act and would be admissible in evidence unlese the appellant can take advantage of section 24 of the Evidence Act.

The position in this particular case is not, in any way different. The officers belonging to the Railway Protection Force can, no doubt, exercise many of the powers of the police officer in charge of a police station, but they have no authority to put up a challan on their own authority. They cannot, therefore, be said to be ''police officers'' in the sense that expression is used in section 25 of the Evidence Act. The contention of Shri Rajendra Singh that the confession made before them is not admissible in evidence cannot, therefore, be sustained.

On the question of sentence, Shri Rajendra Singh urged that no doubt the sentence of fine is not justified in the case of thefts by the Railway servants, even though the articles stolen may not be very valuable; but he urged that the offence was committed in 1965; the applicants have already been removed from service; and an such a late stage, that is, after a period of five years, no useful purpose would be served by sending the applicants to jail. I am inclined to accept the submission only because the matter is too much delayed. I would, however, like to bring it to the notice of the trial Court that such lenient sentences in the matter of theft of Railway property are not at all justified and the trial Court should take note of the same.

In the result, the revision fails and is dismissed. The notice for enhancement of sentence is discharged.