The importance of adhering to procedural requirements and the need for independent witnesses when recording confessional statements under the RPUP Act.

1. The present appeal has been preferred by the Union of India against the judgment and order dated 17-08-2000 delivered in Regular Criminal Case No.44 of 1995 by the learned Judicial Magistrate First Class (Railways), Bhusawal, whereby the learned Judge acquitted the respondent/accused under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred as, ’the RPUP Act’ for the sake of brevity).

2. Heard Mr. Dhumane, the learned Standing Counsel for the appellant/Union of India and Mr. H.R. Gadhia, the learned Counsel for the respondent. I have carefully gone through the record of the case and the impugned judgment and order.

3. The complainant's version, as unfolded during the trial, is as follows:

Complainant Dattatrya Agarkar (PW-1) was on patrolling duty as a Head Constable at about 8.00 hours to 16.00 hours on 05-02-1995 at Shegaon Railway Yard. At about 11.30 hours, he saw the accused carrying some heavy material on his shoulder, at the side of ‘B’ Cabin. PW-1 caught hold the accused while he was crossing the railway line which is by the side of cabin. On carrying out the inspection of the material, which was on the shoulder of the accused, (PW-1) found that it was a iron brake block belonging to the Railway. On making enquiry with the accused, the accused did not give satisfactory answer about the goods. He could not produce the receipt of the said material. The PW-1 then asked the accused to accompany him to Akola and accordingly produced him before ASIL. K. Dhurve (PW-2). PW-1 then lodged his report about the said incident (Exhibit-7). On receipt of the said report, Enquiry Officer ASI-Dhurve (PW-2) took charge of the said property and seized the same in the presence of two panchas under panchanama (Exhibit-11). ASI-Dhurve recorded the confessional statement of the accused as per his say (Exhibit-12). On 11-02-1995, ASI-Dhurve obtained the certificate from an expert, regarding the fact that the said material was railway property (Exhibit-14). On completion of enquiry, the Enquiry Officer ASI-Dhruve lodged complaint against the accused in the Court on 02-03-1995. The learned Judicial Magistrate First Class conducted the trial, recorded the evidence of the witnesses and after hearing both the sides, acquitted the accused as aforesaid.

4. Mr. Dhumane, vehemently argued that, the learned trial Judge has passed an erroneous and perverse judgment and order, inasmuch, as the learned Judicial Magistrate First Class has not considered the fact that the confessional statement of the accused is admissible in evidence. As per the provisions of the RPUP Act, as the Railway Protection Force authority is not a Police Officer and the confessional statement is not hit by either Section 25 of the Indian Evidence Act, 1872 or Section 162 of the Code of Criminal Procedure, 1973. According to Mr. Dhumane, the officer of Railway Protection Force, making enquiry under Section 8(1) of the RPUP Act, is not a Police Officer conducting an investigation under the Code of Criminal Procedure. It is contended that the confessional statement of the accused clearly indicates that he has committed an offence of theft of the railway property and he was found in possession of the said railway property. In view thereof, the learned trial Judge ought to have convicted him for the offence punishable under Section 3(a) of the RPUP Act. Mr. Dhumane has placed reliance upon the judgment of the Hon’ble Apex Court in case of Balkisan A. Devidayal v. State of Maharashtra, reported in AIR 1981 SC 379 to substantiate his contention.

5. Per contra, the learned Counsel for the respondent Mr. Gadhia canvassed that the prosecution has failed to prove that the articles which were taken charge from the accused were serviceable railway articles. He further submitted that though the confessional statement of the accused recorded by the Railway Protection Force officials is admissible in evidence, the Railway Protection Force authorities