STATE OF TAMIL NADU Vs. SANKARAN

JUDGEMENT

(1.) The State has preferred this appeal against the judgment of the learned Judicial First Class Magistrate, Tiruttani, acquitting the accused who has been charged for an offence under Section 3 (a) of the Railway Property (Unlawful Possession) Act, 1966.

(2.) The allegation against the accused was that on 20th November 1977 at about 4.00 a.m. he was found in possession of two fish plates which are Railway property, near the Railway Goods Shed, Tiruttani. P. W. 1 Abdul Majeed, Head Rakshak, was on his rounds detecting theft of Railway property, on the 20th of November, 1977. He found the accused at about 4.00 a.m. proceeding with a gunny bag. On suspicion he stopped him and searched him and he found fish plates, M.O. 2 series inside the gunny bag. The fish plates bore the mark of Railways. The accused was not able to explain his possession. The Head Rakshak. P.W. 1 arrested him and took him to Arakonam police station and gave a report to Saravan Kumar P.W. 3 Sub- Inspector. Railway Protection Force at Araknnam. He registered a case in Crime No. 39 of 1977 under Section 3 of the Railway Property (Unlawful Possession) Act and took a statement which was voluntarily given by the accused under Ex. P4 and after completing investigation laid the charge-sheet. The learned Magistrate held that the Head Rakshak has no power to prepare a mahazar and that there is no clinching evidence as to whether it was P.W. 1 who conducted the investigation of the crime or whether it was P.W. 3. In the end, according the benefit of doubt, be acquitted the accused. The State has preferred this appeal.

(3.) One of the contentions taken by the State is that the Head Rakshak, as a member of the Railway Protection Force, is a competent person to prepare Ex P1, the mahazar for the seizure of the Railway property, and that the learned Magistrate erred in thinking that preparation of mahazar is part of the enquiry. It should be noted that under Section 6 of the Railway Property (Unlawful Possession Act, a superior officer or a member of the force may, without an order from a Magistrate, or without a warrant, arrest any person who has been concerned in an offence punishable under the Act or against whom reasonable suspicion exists of his having been so concerned. Now, there is clear evidence that P.W. 1 is a Head Rakshak. He saw the accused moving with a heavy burden during the small hours of 20th November, 1977 near the Goods Shed at Tiruttani. On suspicion, he stopped him to make enquiry and then made a search of the bag and found the fish plates bearing Railway marks and therefore he arrested him and took him to Arakonam and handed him over to the Sub-Inspector, P.W, 3, and also gave a report. The evidence of P.W. 3 clearly shows that P. W. 1 gave a report and also handed over the accused to him. The evidence of P.W.2 shows that M.O. 2 series are Railway properties. The order of the Magistrate acquitting the accused on the ground that P.W. 1 has started investigation even when he arrested the accused and seized M.O. 2 series under a mahazar, is incorrect. It was P.W. 3 to whom the accused was forwarded by P.W.1, who started the enquiry under Section 8 (1) of the Railway Property (Unlawful Possession) Act. The Magistrate has overlooked this fact. Secondly, the Magistrate has not referred to the confession made by the accused and has not acted upon it. In Balkishan v. State of Maharashtra the Supreme Court has pointed out that any confession or incriminating statement recorded by on enquiry officer of the Railway Protection Force under Section 8 (1) of the Railway Property (Unlawful Possession) Act, 1966 cannot be excluded from evidence. The proper course under such circumstances is to set aside judgment acquitting the accused and to remit the matter back for trial afresh. The appeal is allowed, the judgment acquitting the accused is set aside and the matter is remitted for trial afresh.