In the Court of 5th Judicial Magistrate at Bankura, Dist. Bankura. PRESENT: Mr. Sk. Md.

. Arif Hasan, 5th J.M., Bankura. Case No. 429C/08 T.R. No. 336T/09
Indian Railway (South- Eastern) V/s Subrata Mondal. JUDGEMENT DELIVERED ON: January 04, 2014 Author: Mr. Sk. Md. Arif Hasan, 5th J.M., Bankura
Charge: u/s 3(a) of Railway Property (Unlawful Possession) Act, 1966 [herein after called as RPUP Act].

JUDGEMENT
Fact behind this action: 1. Mr. Hemendra Malik, the complainant, is a S.I. of Railway Protection Force. He is now

posted at the Bomb Disposal Squad, Adra Division. In October, 2008 he was posted at RPF Post, Bankura. 2. It was October 07, 2008s night. On this night Mr. Malik went out for an ambush raid with Mr. A K Sau, the ASI of Bishnupur RPF Out-post, Mr. R K Bhui, the C/9524 of Bankura RPF Post, and Mr. B. Harmbo, the C/9532 of the same Post. It was conducted under supervision of Mr. Promod Kumar, the O/C of Bankura RPF Post. The raid commenced from an unnamed railway level crossing vide no. KA 62 at Railway KM No. 201/31-33. It is situated by the side of Tejpal Village. It comes between Ondagram and Bishnupur section. The raid began around 01:10am on that night. 3. Around 01:45 am in the night Mr. Malik noticed someone suspicious. Mr. Malik also noticed that he was carrying something on his left shoulder. It was Mr. Subrata Mandal, the accused. He had a gunny bag on his left shoulder. He was coming towards the Main road from village Tejpal. His movement was suspicious. So, the Mr. Maliks team stopped him. He initially tried to escape, but the team caught him anyhow near the level crossing. They searched him. On search eight pen-droll clips and four cut pieces of tie bar was found in his gunny bag. Mr. Mondal could not produce any document regarding his title or possession for those articles. According to Mr. Malik they belong to Indian Railway, the complainant. Mr. Malik seized those articles and arrested Mr. Mondal. According to him Mr. Mondal confessed that he had stolen those articles and they are Indian Railways property. So, Mr. Malik brought this action on behalf of Indian Railway against Mr. Subrata Mondal, the accused. Charge: 4. After the case has been transferred to this court for trial, the evidence before charge began. Subsequently charge was framed u/s 3(a) RPUP Act. The contents of the charge were read over and explained to Mr. Mondal in his mother tongue. But Mr. Mondal pleaded his innocence against the charge and claimed to be tried. Defence: 5. Mr. Mondal took the defence that he is not guilty of any crime. He has falsely been
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implicated. Nothing was recovered from him and he did not carry any Railway Property. Trial: 6. During trial the prosecution tendered the following three witnesses and failed to tender the rest witnesses named in the report of Mr. Malik i.e the complaint (Exbt.-5): Pankaj Kumar Rajak (railway property examination expert) PW-1. Hemendra Malik (complainant) PW-2. Badkala Hermbo PW-3. 7. The prosecution proved the following documentary evidences before this court: Expert Certificate issued by PW-1 Exbt.-1. Signature of PW-1 upon seizer level Exbt.-2/1. Signature of PW-2 upon seizer level Exbt.-2. Signature of PW-3 upon seizer level Exbt.-2/2. Seizer list dt. 07-10-08 Exbt.-3. Signature of accused upon the seizer list Exbt.-3/1. Signature of PW-3 upon seizer list Exbt.-3/2. Confessional Statement of Accused dt. 07-10-08 Exbt.-4. Signature of PW-2 upon Exbt.-4 Exbt.-4/1. The report of PW-2 i.e. the complaint Exbt.-5. 8. The prosecution proved the following physical evidences before this court: Four pieces of Pen droll clip (collectively) Mat. Exbt.-1 to 1/3. Two pieces of tie bar (collectively) Mat. Exbt.-2 & 2/1. 9. Mr. Mandal was examined U/S 313 Cr.P.C. He declined to tender any witness. POINTS FOR DETERMINATION 10. With reference to factual matrix, I would frame the following points for deciding this case: (i) Is Mr. Mondal guilty of committing crime u/s 3(a) of RPUP Act? (ii) Has the prosecution been able to prove Mr. Mondals guilt for the above crime beyond all reasonable doubts?
DECISION WITH REASONS 11. For convenience I would take both the points together.

12. I must say that the complainant was very negligent in prosecuting the case. Though Mr. Malik named as many as six witnesses in his report or Complaint (Exbt.-5), yet he could produce only three witnesses in long four years. He took repeated adjournments but could not produce the witnesses and finally closed the evidence before charge making written prayer. So far as evidence on record is concerned, there are a couple of evidence on record for criminalising Mr. Mandal. One is the oral evidence together with the physical and the documentary evidences like Exbt.-1 to Exbt.-3/2 and Mat. Exbt- 1 to 2/1. The other is the alleged confessional statement of Mr. Mondal i.e. the Exbt.-4. One thing I should say before turning to the evidence. Section 3 of RPUP Act, as far as I believe, is the most unfair example of reversing the burden on a suspect. Throughout the web of Indian criminal law one golden thread has always been seen it is the prosecutions duty to prove the prisoners guilt, had increasingly been regarded as empty rhetoric as the number of statutory exceptions multiplied. But still I believe that the prosecution would not enjoy an absolute liberty in shifting the burden. It must prove that the property was in possession of the
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suspect, the property belongs to Indian Railway and its possession was obtained unlawfully. This proof must be proof beyond reasonable doubts. 13. So far as oral evidences are concerned, the gist of Mr. Maliks evidence is that in the night of October 07, 2008 his ambush raid team caught Mr. Mondal near Tejpal Railway level crossing gate no. KA/62 with Mat. Exbt.-1 to 2/1. They caught him because his movement was suspicious. He initially attempted to escape. But the team managed to catch him anyhow. He was searched. Upon search 8 pc. of pen droll clip i.e Mat Exbt.- 1 to 1/3 and 4 pc. of tie bar i.e Mat. Exbt.-2 to 2/1 was recovered from his possession. He was carrying the Mat Exbts in a gunny bag. The Mat. Exbts are properties of Railway and Mr. Mondal could not produce any document showing his authority to keep possession of those articles. The team interrogated Mr. Mondal and upon interrogation he confessed that he had stolen those articles on various occasions. Similar is the evidence of Mr. Hermbo (PW-2). According to Mr. Rajaks evidence he examined the Mat Exbts and found them to be properties of Indian Railway and issued the Exbt.-1 after examination. 14. It is important to notice that none of the above witnesses stepped in to witness box postcharge for facing the cross examination. I would accordingly not give any weight to the oral evidences of the above witnesses. Let me say at once that in adversarial system the witnesses must face cross examination and the evidence of a witness who escaped cross examination is nothing more than the garbage of a dustbin. No weightage could be attach to such useless evidence. Such evidence could have been accepted if the cross examination was not deliberately evaded or prevented. [see, Davis v. Otty 1865, 55 ER 875]. But in this case, I am sorry to say, the complainant deliberately evaded the cross examination. Since evidence after charge none of the witnesses care to step into the witness box and the complainant repeatedly obtain adjournments without bringing a single witness for cross examination and ultimately the e vidence was closed on detection of complainants unscrupulous motive. [see, 45 Sol Jo 569]. One text that I particularly desire to refer here is from Haulsbury 3rd Edition, Vol 15, Para 800: No evidence affecting a party is admissible against that party unless the later has had an opportunity of testing its truthfulness by cross examination. 15. So, the oral evidence is quite insufficient for criminalizing Mr. Mondal or for proving his complicity in the alleged crime u/s 3(a) RPUP Act. But what about the confessional statement [Exbt.-4]? According to Mr. Malik, the confession was made voluntarily. He also attached a footnote at the bottom of this confessional statement in this regard [see, Exbt.4/1]. As an extra precaution he took signature of one Surojit Das Modak on it. The confessional statement (Exbt.-4) suggests that as if it was recorded in presence of Mr. Modak. I think Mr. Modak was required to tender as a witness. But Mr. Malik did not do it. Nevertheless, the alleged confession was quite short. I will read it in full: , , , , ,
( ) 07.10.2008 RPF RPF RPF RPF Typed & Printed by me: 5th J.M., Bankura. Page 3 of 8

16. If I were to consider this confession matter with the eyes of the pre 1980 Judges, they would, I believe, have seen it this way: Every confession made to a RPF would be hit by S.25 of Evidence Act. The confession to a RPF would be not less than a confession to Police. The material thing to consider would be not the name given to him, nor colour of the uniform he is required to wear but his functions powers and duties. Meaning of the word Police in S. 25 Evidence Act is not strict technical meaning but its meaning should be more comprehensive, extended and liberal. [see, The Queen v. Hurribole Chunder Ghose I.L.R. 1 Cal. 207, Queen Empress v. Salemuddin Sheik I.L.R 26 Cal. 569]. Section 11, 12 & 13 of Railway Protection Force Act, 1957 and S.6 & 8 of Railway Property (Unlawful Possession) Act, 1966 gives similar power and function to a RPF as that of Police. Under S. 8(2) of RPUP Act the RPF has been invested with all the powers of a police which it have under Chapter V and XII of Cr.P.C. They would, I believe, have referred to the statement of Object and Reason of the Act 29 of 1966 also. It is written there that RPF were not invested with the power of investigation and prosecution. Whatever action the RPF was taking was in aid of state police. Both the agencies are responsible for achieving the same object, but the machinery was not proved to be effective. So the new act brought for investing RPF with the power of investigation and prosecution in the same manner as in Excise and Customs. They would then have referred to Raja Ram Jaiswal vs. State of Bihar, [1964] 2 S.C.R. 752 or Emperor v. Nanoo Sheikh Ahmed 28 Bom. L.R. 1196 or Amin Shariff v. R 38 CWN 930. 17. But I am not deciding this case in the pre-1980 era. It is 2014 AC. The law is not standing still. I feel myself bound by the Judgement of Balkishan A. Devidayal etc v. State of Maharashtra etc 1981 SCR (1) 175. This case is cited in textbooks as if it were the last word on the subject. In this case Supreme Court of India noticed the absence of power in RPF to submit charge sheet u/s 173 Cr.P.C. and held that RPF is not a Police within the meaning of S.25 of Evidence Act. But I cannot subscribe to the view that simply because confession to a RPF is now not hit by S.25 of Evidence Act, it is to be blindly relied on for convicting a suspect. The decision has simply said that a confession if otherwise alright and lawful, it should not be discarded merely because it was made to a RPF since RPF is not a police within the meaning of S. 25 Evidence Act. This case does not say that the court should fold its hand and close its eyes and then say that I would not test if the confession passes the test of S.24 Evidence Act or not or, if it is otherwise lawful confession or not, because the Supreme Court said confession to the RPF is admissible. Section 24 of Evidence Act, as I believe, rejects a confession which was made under threat, coercion, inducement or promise. Such inducement, threat or promise need not be proved to the hilt. If it appears to the court that the making of the confession was caused by any inducement, threat or promise proceeding from a person in authority, the confession must be excluded from evidence. The expression appears in s. 24 Evidence Act, as I believe, connotes that the Court need not go to the extent of holding that the threat etc. has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the court would refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than police officer. [see, State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru & ors (2005)11 SCC 600]. I would, therefore, examine if the
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confession is truly a lawful confession or in other words was it made voluntarily and free from all disabilities mentioned in S. 24 Evidence Act or not. 18. It is important to notice that the footnote attached by Mr. Malik to the alleged confessional statement does not contain any certificate to the effect that it was voluntarily made by Mr. Mondal or that it was recorded exactly as per the version of Mr. Mondal. It only suggests that it was recorded by Mr. Malik and after recording it was read over and explained to Mr. Mondal and nothing more than that. One thing I must say here. It was the duty of Prosecution to prove that the alleged confession of Mr. Mondal was voluntary and without any pressure. [see, R v. Thompson (1893) 2 QB 12, Ashutosh v. R 26 CWN 54, Hemraj v. S AIR 1954 SC 42, R v. Panchkari 29 CWN 300]. But, I am sorry to say, the prosecution was over confident with this confessional statement. It did not take any attempt to prove Mr. Mondals voluntariness. Neither the footnote of Mr. Malik suggests that it was voluntarily made, nor any positive oral evidence was tendered to this effect. 19. Having read the entire confessional statement, I do not believe that it was the exact version of Mr. Mondal, if he made the confession at all. The statement suggests that as if Mr. Mondal said that he used to steal railway properties and on that night when he was detained, the RPF officers found eight pen droll clips and four tie bars in his bag. The interesting point is that the language is in passive and though Mr. Malik was himself leading the raid team, yet he used language RPF and not . I would refer to the exact language of Exbt.-4: .. ( )
07.10.2008 RPF

If Mr. Mondal really wanted to say this he would have said instead of RPF . No vernacular person would say in the passive. He would have been direct in saying the above underlined statement. Instead of saying that I had stolen some railway properties and I was going with those stolen articles when I was detained by RPF officers and upon search 8 pendroll clips and 4 tie bar were found in my bag, one would say in the circumstances of this case that I was going with 8 stolen pendroll clips and 4 stolen tie bars in my bag when you and your team detained me and seized them. I am sure that if Mr. Mondal had at all made any confessional statement, the Exbt.-4 is not the verbatim record of it; or in other words the Exbt.-4 was not recorded exactly as per the version of Mr. Mondal. I would quote Mr. Justice Foster in this situation: Proof may be easily procured; words are often misreported- whether through ignorance, inattention or malice, it matterth not to the defendant, he is equally affected in either case. One decision that I particularly desire to refer in this context is Respublica v. Fields 1822 Peek R 140 (Am). This was said in the decision: How easy it is for the hearer to take one word for another, or to take a word in a sense not intended by the speaker; and for want of an exact representation of the tone of voice, emphasis, countenance, eye, manner, and action of one who made the confession, how almost impossible is it to make third persons understand the exact state of his mind and meaning! For this reason such evidence is received with great distrust, and under apprehension of the wrong it may do.
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20. It is important to notice the situation under which the alleged confession was made by Mr. Mondal. He was alone in the night. Mr. Malik and his team had already detained him. He was brought to RPF post after huge drama. The alleged confession was made after he was arrested and brought in RPF post. I have noticed one interesting thing in this case. I found an interesting difference between Mr. Mondals signatures upon the seizer list (the signature was marked as Exbt.-3/1) and the alleged confessional statement. The difference is about the mental condition of Mr. Mondal. Mr. Mondals signature upon seizer list was taken immediately after his detention and the alleged seizer. The signature looks like normal. [see, the fig]. But the signature on Exbt.-4 looks like as if it was made while Mr. Mondal was trembling in fear or was under huge pressure. [see, the fig.]. After noticing this my conscience made me think. Nothing would be more unjust than convicting Mr. Mondal solely relying upon this confession, if it was made under coercion or pressure. The more I thought, I found the confession to be not voluntarily made. The moment I started thinking about this issue, I faced some questions. If Mr. Mondal was alright after his arrest and signed the seizer list (Exbt.-3 & 3/1) normally, why was he trembling while signing the Exbt.-4 which was allegedly recorded after bringing him at the RPF post? Why would a man who did not tremble yet after arrest, would shiver for nothing? If he voluntarily made the alleged confession, why he was trembling while signing it? I would say that a promise or threat or inducement or pressure need not be express, but may be implied from the conduct of the person in authority, the declarations of the prisoner or the circumstances. It need not be made directly to the prisoner. [see, R v. Thompson (1893)2 QB 12, Phip 8th Ed. P250]. The coercion may be physical as well as mental and I am sure the coercion upon Mr. Mondal in the present case was a mental one. [see, S v. Miranda 384 US 436, of US Supreme Court]. A perfectly innocent expression, coupled with acts or conduct of the person in authority together with the surrounding circumstances may amount to an inducement or thereat or pressure etc. which most probably, as I believe, might had happened in this case. [see, R v. Panchkari 29 CWN 300]. I would refer to one expression from the statement (Exbt.-4) itself. It would make the mental coercion or pressure upon Mr. Mondal clear under which the alleged confession was made. This is in the confessional statement:
. So, Mr. Mondal made the alleged confession, if at all made, under

compelling circumstances finding no other alternative and not voluntarily. I would, therefore, hold that the alleged confession was not voluntary and is, therefore, hit by S.24 of Evidence Act. I believe, for the above reasons, that it would not be safe to criminalise Mr. Mondal in this case depriving him from his Constitutional Fundamental right u/Art. 21. The 1st and foremost rule of the criminal justice system, as I believe, is that the prosecution evidence must pass proof beyond a reasonable doubt test. This is not a mere formality, but it makes the procedure of criminalisation of a citizen due process of law. [see, re Winship 397 U.S. 358 (1970), US Supreme Court]. For the reasons already discussed, I believe that the law and justice demand acquittal of Mr. Mondal in this case and accordingly, I would hold that the prosecution failed to prove guilt of Mr. Subrata Mondal beyond reasonable doubts and, therefore, he deserves acquittal.
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21. Before parting with this case, I would make one thing clear. Mr. Malik has not at all complied with the requirements of arrest as directed in D. K. Basu v. State of West Bengal (1997) 1 SCC 416. I cannot subscribe to the view that merely because the RPF is strictly not police within the meaning of S. 25 Evidence Act, it got authority to ignore the guidelines given in the case. Merely because the RPF got power to arrest would not justify the arrest of Mr. Mondal. [see, D K Basus Case (supra), Joginder Kumar v. State 1994 (4) SCC 260]. I did not find any legal necessity, as directed in the D.K Basus case, to detain Mr. Mondal. Mr. Malik in the arrest report, I am sorry to say, assigned some fallacious reasons for arrest. [see, entry 7 of the arrest report]. According to him 08 pen droll clips and 04 tie bars were allegedly found in Mr. Mondals possession. Hence he arrested Mr. Mondal. This was the reason assigned by Mr. Malik. I do not believe that this is sufficient for arresting a citizen. At least the guidelines of D K Basus Judgement prohibit such arrest. It is important to notice Mr. Maliks conduct. He did not take resort of S. 9 of RPUP Act, but straightway arrested Mr. Mondal. He did not even offer bail to Mr. Mondal as per S. 8(2) proviso (a) of RPUP Act. The forwarding report dated October 07, 2008 confirms that Mr. Mondal was not offered bail. Mr. Malik sent the forwarding report. It only suggests that the relatives of Mr. Mondal were informed about his arrest. But there is nothing to suggest that he was offered bail after his arrest. As a result Mr. Mondal suffered 13 days pre-trial imprisonment since October 07, 2008 to October 20, 2008. But when the trial began, Mr. Malik deliberately escaped from stepping into the witness box to face cross examination. In such situation, I believe, Mr. Mondal deserves some compensation. [see, Maharaj vs. Attorney General of Trinidad Tobago (1978) 2 All.E.R. 670]. I would refer to Article 9(5) of the International Covenant on Civil and Political Rights, 1966. It says: "anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation". Section 358 Cr.P.C. also ratifies, as I believe, this principle of international Law. I believe that the word unlawful is much wider than the word illegal. What may be legal could very well be unlawful. In this case Mr. Malik though was legally empowered to arrest Mr. Mondal, yet it was unlawful for ignoring D.K. Basus guidelines. I would, therefore, invoke S. 358 Cr.P.C. I believe that unlike S. 250 Cr.P.C., section 358 does not require me to draw up a separate proceeding. I have no doubt that Mr. Malik arrested Mr. Mondal in course of his official duty. I believe that the principle behind section 358 Cr.P.C. is in fact based on the law of torts and equity. I would, therefore, hold the Indian Railway vicariously liable for the act of Mr. Malik and, therefore, for payment of the damages. I would, accordingly, direct the employer of Mr. Malik i.e. Indian Railway, the complainant, (u/s 358 Cr.P.C.) to pay 1,000/- to Mr. Mondal as compensation. 22. Hence, I do hereby ORDER that, Mr. Subrata Mondal, the accused, has not been proved guilty of committing crime u/s 3(a) Railway Property( Unlawful Possession) Act, 1966. He is hereby acquitted from the charge u/s 3(a) RP(UP) Act as well as from this action. He is released from his bail bond and is set forthwith at liberty. Let his surety be discharged. Indian Railway (south-eastern), the complainant, is hereby directed to pay 1,000/- to Mr. Subrata Mondal as compensation within one month from this date. In case of default in
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payment of the compensation, it may be recovered in terms of S.421 Cr.P.C. read with S.431 of it. Mr. Mondal is at liberty to initiate such proceeding. Let a copy of this judgement be forwarded to the General Manager of South Eastern Railway, for necessary information and compliance of the compensation order. Mr. Mondal is directed to file requisite in this regards at once. Let the seized alamats be confiscated to the State. The case is thus disposed of on contest. Note in concern registers.

(Sk. Md. Arif Hasan) Judicial Magistrate of 1st Class, 5th Court, Bankura.

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5th J.M., Bankura.

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