STATE OF MADHYA PRADESH versus MUKESH AND ORS.

S.B. SINHA, J. Leave granted.

p. 493, margin G

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 office and in the process apprehended a person named Suresh from Mumbai. From a search conducted, 94 tickets of different some filled up as well as some unfilled reservation demand forms from him. A sum of Rs. 33,403/- was also found in his possession. Information Report was lodged. Allegedly, during investigation case, he was found to have been carrying business in procuring tickets illegally. Respondents herein were said to have abetted of the said offence. On the said charge, Respondents herein aforementioned Suresh Shah were prosecuted.

pp. 493–494, margin G

Whereas the said Suresh Shah was charged under Section Railways Act, I 989, Respondents herein were charged under thereof. When the case was at an advanced stage, the said absconded. The trial, however, was concluded against Respondents. were found guilty of commission of the offence charged against were sentenced to undergo 3 years' rigorous imprisonment and of Rs. I 0,000/- in default whereof they were directed to undergo months rigorous imprisonment. They preferred an appeal thereagainst the Sessions Judge which was transferred to the Court of Sessions Judge, Indore and registered as Criminal Appeal No. said appeal was dismissed by an order dated 1.05.2002. A revision was filed before the High Court by them which by reason of judgment has been allowed. The State of Madhya Pradesh is,

p. 494, margin C

Ms. Vibha Datta Makhija, learned counsel appearing Appellant, principally raised two contentions before us. Firstly, that although there is no direct evidence as against Respondents from the circumstantial evidence adduced by the prosecution, to have been proved that the railway tickets were being clandestinely in black market and unless Respondents had abetted the main Shah and could not have been found to be in possession involving 94 reservations. It was contended that Respondents have issued the tickets and keeping in view the timings of issuance as has been noticed at paragraph 21 of the judgment of the Judge, it would have been impossible for the said Suresh Shah many tickets within a few hours, viz., from 0933 hrs. to 1916

p. 494, margin E

It was also submitted that Respondents did not raise defence. The High Court, the learned counsel would submit, a serious error in opining that Respondents ·had not been asked circumstantial evidence or evidence appearing against them by Trial Judge while examining them under Section 313 of the Code Procedure.

pp. 494–495, margin G

Mr. P.N. Misra, learned senior counsel appearing on Respondents, on the other hand, supported the judgment of the

p. 495, margin A

Before embarking upon the rival contentions of the parties, briefly notice the admitted facts. At the relevant time, 11 reservation counters were functioning at the Indore Railway Station. Reservation offices place function from 0800 hours to 1400 hours and then from 1410 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 place on 2nd October, 1995, i.e., just before the ensuing Durga Puja There were long queues. Ordinarily, minimum 2-3 minutes' time was for issuance of one ticket.

p. 495, margin B

Indisputably, a circular was issued in terms whereof one form could be given to one person. He, however, would be entitled reservation of six seats for passengers. If one person intends to obtain than one reservation form, he is required to take permission from Commercial Manager. However, indisputably a person intending reservation for more than six persons can make his associates stand queue or come again and again demanding reservation forms. During Dussehera and Summer holidays, in view of rush, admittedly persons remain in queue in each reservation window.

p. 495, margin D

Documents maintained in the reservation office had not been excess amount was found at the cash counter. No extra cash was on the person of Respondents.

p. 495, margin E

In the reservation forms, handwriting of the accused Suresh allegedly found. It stands admitted that the reservation forms were in different counters. Out of the six accused persons, three were morning shift and three were in the evening shift.

p. 495, margin F

From the timings of issuance of tickets, as noticed by the learned Trial Judge at paragraph 2 I of its judgment, it appears that two tickets to have been issued at the same time from two counters.

p. 495, margin G

The learned Trial Judge in his judgment proceeded accused Nos. 2 to 7 had not acted in good faith as envisaged 186 of the Railways Act.

p. 496, margin A

The fact that more than one ticket had been counters at the same time is not disputed. The possibility Shah to have associates with him who presented reservation counters cannot, thus, be ruled out. No doubt Respondents their public duties were required to maintain transparency, Investigating Officer did not conduct any investigation Suresh Shah who allegedly had been carrying on procuring reservation for passengers, had any associate resident of Bombay. According to the prosecution he the said place. Nothing has been brought on records he had regularly been operating from Indore or not. The in regard thereto. Reservation forms might have been filled but then the possibility that Respondents who were working counters on two different occasions might not have any be ruled out. They were not expected to verify the handwritings while issuing tickets. They as noticed hereinbeforc, were a person standing before them very quickly.

p. 496, margin A

How the handwriting of one person in different checked by Respondents is open to guess. Only for was to be taken but as noticed hereinbefore an associate may stand in the queue and demand reservation forms windows on more than one occasion. Once a filled-up the reservation clerks had admittedly no discretion in tickets.

p. 496, margin D

Section 143(1) of the Railways Act reads, thus: "143. Penalty for unauthorised carrying on of and supplying of railway tickets.- (I) If any person, not being a railway servant in this behalf.- (a) carries on the business of procuring and travel on a railway or for reserved accommodation train; or (b) purchases or sells or attempts to purchase or sell tickets with a 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 B 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."

pp. 496–497, margin F

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.

p. 497

The term 'abetment' has not been defined in the Railways Act. What would constitute abetment is contained in Section 107 of the Indian Penal D Code, which reads, thus:

p. 497

"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 takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by act or illegal omission, the doing of that thing."

p. 497

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 G Section I 07 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 wou Id constitute abetment. '

p. 497

Admittedly, the first and second part of the said provision has no application. No illegal omission on the part of Respondents has been H 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.

pp. 497–498

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.

p. 498, margin A

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.

p. 498, margin C

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. N.J. Appeal disposed of.

p. 498, margin E