RUSTOM SHAHABUDDIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioner-original accused was prosecuted under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, having been found in possession of battery connections belonging to the railways, on August 14, 1 974 at Matunga Workshop. The said case was numbered as 255/S of 1974. The prosecution, led the evidence of one Nasaruddin Rakshak attached to Railway Protection Force, Post Matunga. In his evidence the said witness stated that the property seized from the accused had no specific marks indicating that the property belonged to the railways. No further evidence was led by the prosecution and the learned Magistrate on the basis of the said evidence discharged the accused on June 25, 1976.

(2.) It is thereafter criminal case bearing Case No. 115/S of 1 977 was filed on the same facts. No leave was obtained by the prosecution to file a fresh complaint. It further appears that no objection was taken regarding the maintainability of the second complaint. However at the final hearing a point was raised before the learned Magistrate that the second complaint was not maintainable in view of the provisions of section 300 of the Code of Criminal Procedure. That contention was negatived by the learned Magistrate and on appreciation of evidence the learned Magistrate by his judgment and order dated September 30, 1978 was pleased to convict the petitioner accused under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 and sentenced him to pay a fine of Rs. 500/-. In default of payment of fine the accused was ordered to suffer R.I. for two months.

(3.) Feeling aggrieved by the said order of conviction and sentence, the petitioner preferred an appeal being Criminal Appeal No. 705 of 1 978 to the Court of Sessions for Greater Bombay. The appeal was barred by limitation. The learned Additional Sessions Judge by his judgment and order dated October 19, 1982 dismissed the appeal holding that the appeal was time barred. However, on the merits, it is held that the second complaint filed by the prosecution was not maintainable.