SUPREME COURT OF INDIA
State of Madhya Pradesh
Vs
Mukesh and Others
Appeal (Crl.) 1087 of 2006 (Arising Out of S.L.P. (Crl.) No. 640 of 2006)
(S. B. Sinha and Dalveer Bhandari, JJ)
19.10.2006
S. B. SINHA, J.
Leave granted.
Respondents were working as reservation clerks. They were posted at Indore
Railway Station. The Assistant Sub Inspector of General Railway Police, Indore,
on an information received by him that one person had illegally been purchasing
tickets from reservation counters, came to the reservation office and in the
process apprehended a person named Suresh Shah. He was from Mumbai. From a
search conducted, 94 tickets of different trains and some filled up as well as
some unfilled reservation demand forms were recovered from him. A sum of Rs.
33, 403/- was also found in his possession. A First Information Report was
lodged. Allegedly, during investigation of the said case, he was found to have
been carrying business in procuring reservation tickets illegally. Respondents
herein were said to have abetted in commission of the said offence. On the said
charge, Respondents herein with the aforementioned Suresh Shah were prosecuted.
Whereas the said Suresh Shah was charged under Section 143 (1) of the Railway
Act, 1989, Respondents herein were charged under Section 143(2) thereof. When
the case was at an advanced stage, the said Suresh Shah absconded. The trial,
however, was concluded against Respondents. They were found guilty of
commission of the offence charged against them and were sentenced to undergo 3
years' rigorous imprisonment and to pay a fine of Rs. 10, 000/- in default
whereof they were directed to undergo further 6 months rigorous imprisonment.
They preferred an appeal thereagainst before the Sessions Judge which was
transferred to the Court of 6th Additional Sessions Judge, Indore and
registered as Criminal Appeal No. 78 of 1999. The said appeal was dismissed by
an order dated 1.05.2002. A revision application was filed before the High
Court by them which by reason of the impugned judgment has been allowed. The
State of Madhya Pradesh is, thus, before us.
Ms. Vibha Datta Makhija, learned counsel appearing on behalf of Appellant, principally raised two contentions before us. Firstly, it was submitted that although there is no direct evidence as against Respondents herein but from the circumstantial evidence adduced by the prosecution, it must be held to have been proved that the railway tickets were being clandestinely sold in black market and unless Respondents had abetted the main accused Suresh Shah and could not have been found to be in possession of 80 tickets involving 94 reservations. It was contended that Respondents were found to have issued the tickets and keeping in view the timings of issuance thereof, as has been noticed at paragraph 21 of the judgment of the learned Trial Judge, it would have been impossible for the said Suresh Shah to book so many tickets within a few hours, viz., from 0933 hrs. to 1916 hours.
It was also submitted that Respondents did not raise any particular defence.
The High Court, the learned counsel would submit, also committed a serious
error in opining that Respondents had not been asked about the circumstantial
evidence or evidence appearing against them by the learned Trial Judge while
examining them under Section 313 of the Code of Criminal Procedure.
Mr. P.N. Misra, learned senior counsel appearing on behalf of Respondents, on
the other hand, supported the judgment of the High Court.
Before embarking upon the rival contentions of the parties, we may briefly
notice the admitted facts. At the relevant time, 11 reservation counters were
functioning at the Indore Railway Station. Reservation offices at the said
place function from 0800 hours to 1400 hours and then from 1410 hours to 2000
hours. An employee works only for six hours in one reservation counter. Two of
the reservation clerks were absent. The offence is said to have taken place on
2nd October, 1995, i.e., just before the ensuing Durga Puja festival. There were
long queues. Ordinarily, minimum 2-3 minutes' time was required for issuance of
one ticket.
Indisputably, a circular was issued in terms whereof one reservation form could
be given to one person. He, however, would be entitled to ask for reservation
of six seats for passengers. If one person intends to obtain more than one
reservation form, he is required to take permission from Divisional Commercial
Manager. However, indisputably a person intending to obtain reservation for
more than six persons can make his associates stand in the queue or come again
and again demanding reservation forms. During Diwali, Dussehera and Summer
holidays, in view of rush, admittedly at least 20 persons remain in queue in
each reservation window.
Documents maintained in the reservation office had not been seized. No excess
amount was found at the cash counter. No extra cash was also found on the
person of Respondents.
In the reservation forms, handwriting of the accused Suresh Shah was allegedly
found. It stands admitted that the reservation forms were handled in different
counters. Out of the six accused persons, three were in the morning shift and
three were in the evening shift.
From the timings of issuance of tickets, as noticed by the learned Trial Judge
at paragraph 21 of its judgment, it appears that two tickets were found to have
been issued at the same time from two counters.
The learned Trial Judge in his judgment proceeded on the basis that the accused
Nos. 2 to 7 had not acted in good faith as envisaged under Section 186 of the
Railways Act.
The fact that more than one ticket had been issued from different counters at
the same time is not disputed. The possibility of the said Suresh Shah to have
associates with him who presented reservation forms in different counters
cannot, thus, be ruled out. No doubt Respondents while discharging their public
duties were required to maintain transparency, but admittedly the Investigating
Officer did not conduct any investigation as to whether the said Suresh Shah
who allegedly had been carrying on systematic business in procuring reservation
for passengers, had any associate or not. He is a resident of Bombay.
According to the prosecution he used to operate from the said place. Nothing
has been brought on records to show as to whether he had regularly been
operating from Indore or not. The prosecution is silent in regard thereto.
Reservation forms might have been filled up by Suresh Shah but then the
possibility that Respondents who were working in three different counters on two
different occasions might not have any hands therein cannot be ruled out. They
were not expected to verify the handwritings of a person while issuing tickets.
They as noticed hereinbefore, were required to deal with a person standing
before them very quickly.
How the handwriting of one person in different forms could have been checked by
Respondents is open to guess. Only for bulk tickets, approval was to be taken
but as noticed hereinbefore an associate of the same person may stand in the
queue and demand reservation forms from the reservation windows on more than
one occasion. Once a filled-up form is passed over, the reservation clerks had
admittedly no discretion in the matter but to issue tickets.
Section 143(1) of the Railways Act reads, thus:
"143. Penalty for unauthorised carrying on of business of procuring and
supplying of railway tickets.—
(1) If any person, not being a railway servant or an agent authorised in this
behalf.—
(a) carries on the business of procuring and supplying tickets for travel on a
railway or for reserved accommodation for journey in a train; or
(b) purchases or sells or attempts to purchase or sell tickets with a view to
carrying on any such business either by himself or by any other person, he
shall be punishable with imprisonment for a term which may extend to three
years or with fine which may extend to ten thousand rupees, or with both, and
shall also forfeit the ticket which he so procures, supplies, purchases, sells
or attempts to purchase or sell: Provided that in the absence of special and
adequate reasons to the contrary to be mentioned in the judgment of the court,
such punishment shall not be less than imprisonment for a term of one month or
a fine of five thousand rupees."
A person in view of the aforementioned provision can be said to have committed
an offence if he has been carrying on a business. The expression
"business" implies continuity.
The term 'abetment' has not been defined in the Railways Act. What would
constitute abetment is contained in Section 107 of the Indian Penal Code, which
reads, thus:
"107. Abetment of a thing. "A person abets the doing of a thing,
who"
First.-- Instigates any person to do that thing; or
Secondly.: Engages with one or more other person or persons in any conspiracy
for the doing of that thing, if an act or illegal omission lakes place in
pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that
thing."
A person, it is trite, abets by aiding, when by any act done either prior to,
or at the time of, the commission of an act, he intends to facilitate and does
in fact facilitate, the commission thereof would attract the third clause of
Section 107 of the Indian Penal Code. Doing something for the offender is not
abetment. Doing something with knowledge so as to facilitate him to commit the
crime or otherwise would constitute abetment. '
Admittedly, the first and second part of the said provision has no application.
No illegal omission on the part of Respondents has been established. Admittedly
in issuing the tickets, Respondents have not violated any rules. Ex facie, they
have also not violated any direction contained in any circular issued by an
appropriate authority in that behalf.
The entire prosecution is based on the purported confession of Suresh Shah. A
statement of an accused would be admissible against a co-accused only in terms
of Section 30 of the Indian Evidence Act. Such a statement of co-accused was
required to be corroborated by adduction of independent evidence. The
prosecution has not adduced any independent evidence to show that Respondents
had intentionally aided the said Suresh Shah and thereby abetted him in
commission of an offence under Section 143(1) of the Indian Railways Act.
Ms. Makhija may be correct in contending that the High Court has made a wrong
observation that all the circumstances appearing against Respondents had not
been put in their examination under Section 313 of the Code of Criminal
Procedure but its ultimate conclusion on the said issue is not correct. We have
been taken through the questions asked to all Respondents by the learned
Magistrate. The circumstances appearing against Suresh Shah and Respondents
were concededly different. However, one questionnaire common to all was
prepared. 90% of the questions in the said questionnaire were to be put to
Suresh Shah, but strangely the same questions had been put to all Respondents.
Except one question, viz., "what you want to say in your defence?",
not only similar questions had been put, similar answers had been recorded.
Strangely enough, even questions required to be put to each of the accused
persons separately have been made part of the same questionnaire. Such common
questions framed and asked to all the accused persons did not subserve the
requirements of Section 313 of the Code of Criminal Procedure. To the said
extent, the High Court's observations cannot be said to be unsustainable.
Moreover, it must be borne in mind that we are dealing with a judgment of
acquittal passed by the High Court. If two views are possible, ordinarily this
Court would not interfere therewith. The State has not been able to show any
illegality in the judgment of the High Court. We, therefore, do not intend to
interfere therewith. The appeal is dismissed.