The present application under Section 482 Cr.P.C. has been filed praying for quashing the enquiry report/charge-sheet dated 30.3.2019 passed in Criminal Case No. 1203 of 2019 arising out of Crime No. 13 of 2018, under Section 3 of Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the ''Act, 1966'), Police Station R.P.F. Post Gonda, District Gonda as well as the summoning order dated 3.5.2019.
I have heard learned counsel for the applicant as well as the learned A.G.A. for the State.
The brief submission of the learned counsel for the applicant is that from perusal of the F.I.R., the charge-sheet even if taken to be a gospel truth, does not make out any case against the applicant under Section 3 of the ''Act, 1966'. The learned counsel for the applicant has taken me across the F.I.R. filed, which is on record as Annexure-6. A plain reading of the F.I.R. on record states that on 19.7.2018, Sri Vishal Srivastava, Chief Commercial Superintendent, Gonda had written a written report that Sri Jamuna Prasad, the Ticket Inspector, Gonda did not deposit the entire amount collected for the period October, 2016 to May, 2018, which amounts to approximately Rs. 13,78,673/-. It is stated that the said report was sent by the Chief Commercial Superintendent, Gonda to the Zonal Officer, Lucknow, which is being audited at Gorakhpur. The said Audit Department has confirmed the deficiency of Rs. 4,12,584/- for the period January, 2018 to May, 2018, the rest amount is under audit. It was further stated that Sri Jamuna Prasad, the Ticket Inspector, did not deposit the amoutn of Rs. 92,830/- for the month of Autust, 2017 and subsequently when the matter came to light, Sri Jamuna Prasad deposited the said amount. It was thus alleged that not depositing the income of the Railways in accordance with law amounts to misappropriation and criminal breach of trust. As regards the applicant, it was stated that Supervisor J.N. Tiwary is also negligent and prima facie appears to be involved in the crime and with the said allegations, the complaint was filed.
The counsel for the applicant has placed on record a report dated 13.6.2018, wherein departmental action was proposed against Sri Jamuna Prasad on account of non-deposit of the revenue of Railways. Counsel for the applicant has further placed on record the fact that on the basis of the allegations made in the complaint, summoning orders were passed on 31.5.2019 recording that on the basis of the complaint a cognizable offence is made out for trial and thus the accused Jamuna Prasad and Jai Narain Tiwary be summoned. It is stated that in pursuance to the said summons, the applicant was not arrested and was released on personal sureties. The summoning order was under Section 3 of the ''Act, 1966'. The counsel for the applicant has specifically argued that from the plain reading of the provisions of Section 3 of the ''Act, 1966', no offence can be said to be made out even if the entire allegations levelled are treated to be correct. It is stated that the only averment with regard to the applicant is that he was the Supervisor and was negligent and thus Jamuna Prasad could carry out the offences as alleged against him.
Section 3 of the ''Act, 1966' is as under:-
"3. [Penalty for theft, dishonest misappropriation or unlawful possession of railway property.] [Whoever commits theft, or dishonestly misappropriates or is found, or is proved] to have been, in possession of any railway property reasonably suspected of having been stolen or unlawful 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."
A plain reading of Section 3 of the ''Act, 1966' as quoted above makes it clear that for the rigour of the Section 3 of the ''Act, 1966' to apply, it is essential to allege that theft or dishonest misappropriation was found or the person accused should have been in possession of any Railway property reasonably suspected of having been stolen or unlawfully obtained. Thus, in sum and substance, it is essential that the allegations of theft of Railway property or dishonest misappropriation should be alleged to prosecute anyone under Section 3 of the ''Act, 1966'. As already pointed out even in the allegations levelled in the complaint, there is no averment or whisper with regard to any theft or misappropriation of any Railway property as against the applicant. The only allegation is that the applicant being a Supervisor was negligent in supervising. It is clear that the negligence will not constitute an offence which can be tried under Section 3 of the ''Act, 1966'.
The learned counsel for the applicant states that for prosecuting under Section 3 of the ''Act, 1966' it is essential to allege that the property recovered is a Railway property and the same was found in possession of the accused and if these two allegations are alleged and established the onus shifts on the accused to prove that the Railway property came into his possession lawfully. There being no averment even in the complaint against the applicant, the prosecution under Section 3 of the ''Act, 1966' is not made out against the applicant.
The Apex Court in Madhavrao Jiwajirao Scindia and others vs. Sambhajirao chandrojirao Angre and others (1988) 1 SCC 692 observed in para 7 as under :-
"The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
The Apex Court in State of Harayana and others vs Chaudhary Bhajan Lal and others 1992 SCC (Cri) 426, considering a series of decisions has laid down seven criterias for quashing the entire proceedings in exercise of powers under Section 482 Cr.P.C. by this Court, which reads as under:-
"(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
The Apex Court in case of Dilawar Babu Kurane Vs. State of Maharashtra 2002 (2) SCC 135, has observed that:-
" In exercise of jurisdiction under Section of Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but could not make a roving enquiry into the pros and cons of the matter and weigh the evidence, as if he was conducting a trial."
The Apex Court in the case of Som Mittal vs Government of Karnataka, 2008 (3) SCC 753, has held that :-
"When grave miscarriage of justice would be committed if the trial is allowed to proceed; or where the accused would be harassed unnecessarily if the trial is allowed; or when prima facie it appears to Court that the trial would likely to be ended in acquittal. Then t