Judgment

SHINGHAL, J.:- This appeal by special leave is directed against the judgment of the Bombay High Court dated November 30, 1972, upholding the view of the trial Court and the Additional Sessions Judge of Jalgaon that it was not necessary to frame a charge under Section 3 of the Railway Property (Unlawful Possession) Act, 1966, hereafter referred to as the Act, against accused 1, 2, 5 and the absconding accused, and directing that a charge under that section may be framed as an alternative charge only against accused 3 and 4. The State of Maharashtra feels aggrieved because of the failure to frame a charge under the aforesaid Section 3 against the accused mentioned above.

2. It was alleged that seven tyres and seven tubes were booked from Wadi Bunder goods shed of the Central Railway on March 20, 1971, in wagon No. WR 35775. The seven tyres were stolen by accused 1, 2, 5 and the absconding accused, from the Down Yard of the Bhusawal railway station while in transit, and were kept in the hut of Ragho Motiram Birhade. Accused 1 sold seven tyres to accused 3 for Rs. 2700/-, and accused 3 removed them in his motor-lorry to Savda.He produced four tyres from his lorry, but three tyres were found to have been sold to accused 4 and were seized from his possession. It was therefore specifically alleged that accused 1, 2, 5 and the absconding accused were proved to "have been found in unlawful possession" of the railway property while accused 3 and 4 were found in unlawful possession thereof within the meaning of Section 3 of the Act. The trial Magistrate however refused to frame a charge under that section against any of the accused and framed charges for the commission of offences under Ss. 379, 461 and 411 I.P.C. against all the accused. The State felt aggrieved and applied for a revision of that order, but it was upheld by the Additional Sessions Judge, Jalgaon, as mentioned above. We have made a mention of the view which was taken when the matter went up to the High Court in revision.

3. It is not in controversy before us that in the absence of the evidence of the prosecution, which has still to be recorded, the case has to be examined on the basis of the allegations mentioned above, and the short question therefore is whether they justify the framing of a charge under Section 3 of the Act against accused 1, 2, 5 and the absconding accused.

4. Section 3 which provides the penalty for unlawful possession of railway property reads as follows:-

"Whoever is found or is proved to have been in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable-

(a) for the first offence with imprisonment for a term which may extend to five years or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees;

(b) for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees."

The essential requirements of the section therefore are that (i) the property in question should be railway property, (ii) it should reasonably be suspected of having been stolen or unlawfully obtained, and (iii) it should be found or proved that the accused was or had been in possession of that property. It is not in dispute before us that the property in question was railway property within the meaning of Sec. 2 (d) of the Act. It is also not in dispute before us that it was reasonably suspected of having been stolen or unlawfully obtained. It is not disputed therefore that two of the three essential requirements o