# Jai Narain Tiwari v. U.O.I. & Ors. Opp. Parties

- **Citation:** (2019) 2 ILRA 653
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-30
- **Case number:** U/S 482/378/407 No. 4553 of 2019
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-narain-tiwari-v-u-o-i-ors-opp-parties-44724
- **Pages:** 5

## Headnote

Act, 1966 - Section 3 - Essential that the
allegations of theft of Railway property or
dishonest
misappropriation
should
be
alleged to prosecute anyone under Section
3 of the Act - Only averment against the
applicant is that he was the Supervisor and
was negligent - No case made out for
prosecuting the applicant under Section 3
of the Act. (Para 5,6,7,12,13 & 14)

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'. 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'.

On the basis of law laid down by the Apex
Court as well as the plain reading of the
complaint, no case is made out for prosecuting
the applicant under Section 3 of the ''Act,
1966'. The learned Magistrate has further
erred in summoning the accused without any
application of mind.

The proceedings in Criminal Case under
Section 3 of Railway Property (Unlawful
654 INDIAN LAW REPORTS ALLAHABAD SERIES
Possession) Act, 1966, as well as the
summoning order as against the applicant are
quashed and the application under Section 482
Cr.P.C. is allowed.

Application u/s 482 Cr.P.C. allowed (E-3)

Case law relied upon/discussed: -

## Text

2 All. Jai Narain Tiwari Vs U.O.I. & Ors.
653
for the reason of skipping the process
issued to procure the presence of
applicant in trial running against her.

34. This would be in the interest of
justice to make balance between the
apprehension of the feared applicant from
the non-bailable warrant running against
her with regard to irreparable loss of her
reputation and in convenience of her
presence being lady of 68 years old age
and the proceeding of a legitimate trial
running against her by issuing certain
directions in exercise of power under
Section 482 Cr.P.C. as follows.

35. In view of the aforesaid
observation, the accused-applicant if
appears within three weeks from the date
of order and applies for bail, the Court
concerned is directed to entertain the
same promptly as soon as practicable, if
possible, on the same date keeping in
mind that the accused-applicant is a 68
years old lady and she is willing to
participate in proceeding, moreover, the
purpose of issuance of process is only to
ensure the participation in the trial, the
same be disposed of.

36. Till the aforesaid three weeks or
till the applicant appears/surrenders and
applies for bail on non-bailable warrant
running against the accused-applicant, no
coercive action shall be taken pursuant to
the non-bailable warrant.

37. Accordingly the application
under Section 482 Cr.P.C. is disposed of.
----------

(2019)10ILR A 653

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.09.2019
BEFORE

THE HON'BLE PANKAJ BHATIA, J.

U/S 482/378/407 No. 4553 of 2019

Jai Narain Tiwari ...Applicant
Versus
U.O.I. & Ors. ...Opp. Parties

Counsel for the Applicant:
Bal Keshwar Srivastava, Jai Prakash Narain

Counsel for the Opposite Parties:
Shiv P. Shukla

A. Railway Property (Unlawful Possession)
Act, 1966 - Section 3 - Essential that the
allegations of theft of Railway property or
dishonest
misappropriation
should
be
alleged to prosecute anyone under Section
3 of the Act - Only averment against the
applicant is that he was the Supervisor and
was negligent - No case made out for
prosecuting the applicant under Section 3
of the Act. (Para 5,6,7,12,13 & 14)

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'. 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'.

On the basis of law laid down by the Apex
Court as well as the plain reading of the
complaint, no case is made out for prosecuting
the applicant under Section 3 of the ''Act,
1966'. The learned Magistrate has further
erred in summoning the accused without any
application of mind.

The proceedings in Criminal Case under
Section 3 of Railway Property (Unlawful
654 INDIAN LAW REPORTS ALLAHABAD SERIES
Possession) Act, 1966, as well as the
summoning order as against the applicant are
quashed and the application under Section 482
Cr.P.C. is allowed.

Application u/s 482 Cr.P.C. allowed (E-3)

Case law relied upon/discussed: -

1. Madhavrao Jiwajirao Scindia & ors. Vs
Sambhajirao chandrojirao Angre & ors. (1988)
1 SCC 692
2. St. of Har. & ors. Vs Chaudhary Bhajan Lal
& ors. 1992 SCC (Cri) 426
3. Dilawar Babu Kurane Vs St. of Mah. (2002)
2 SCC 135
4. Som Mittal Vs Govt. of Kar. (2008) 3 SCC
753
(Delivered by Hon'ble Pankaj Bhatia, J.)

1. 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.

2. I have heard learned counsel for
the applicant as well as the learned
A.G.A. for the State.

3. The brief submission of the
learned counsel for the applicant is that
from perusal of the F.I.R., the chargesheet 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.

4. 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
2 All. Jai Narain Tiwari Vs U.O.I. & Ors.
655
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.

5. 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."

6. 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'.

7. 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
656 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 3 of the ''Act, 1966' is not made
out against the applicant.

8. 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."

9. 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."
2 All. Siya Ram Saran Aditya Vs The State of U.P. & Ors.
657

10. 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."

11. 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 the inherent
power of the Court under section 482 of
the Code of Criminal Procedure can be
invoked by the High Court either to
prevent abuse of process of any Court, or
otherwise To secure the ends of justice."

12. Thus on the basis of law laid
down by the Apex Court as well as the
plain reading of the complaint, no case is
made out for prosecuting the applicant
under Section 3 of the ''Act, 1966'. The
learned Magistrate has further erred in
summoning the accused without any
application of mind.

13. As a result of the conclusion and
the
findings
recorded
above,
the
proceedings 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, Police
Station R.P.F. Post Gonda, District Gonda
as well as the summoning order dated
3.5.2019 as against the applicant Jai
Narain Tiwari are quashed.

14. The application under Section
482 Cr.P.C. is allowed in terms of the
order passed above.
----------

(2019)10ILR A 657

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.09.2019

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

U/S 482/378/407 No. 3855 of 2013
alongwith
U/S 482/378/407 No. 5430 of 2013

Siya Ram Saran Aditya ...Applicant
Versus
The State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Santosh Srivastav, K.K. Sharma

Counsel for the Opposite Parties:
Bireshwar Nath, Nadeem Murtaza

A. Cr.P.C., 1973 - Section 482 and Section
197 - For initiation of prosecution of Public
Servant, the sanction under Section 197 of
Cr.P.C. is mandatory and submission of
charge sheet without any valid sanction is
illegal - Subsequent sanction granted by
State Government on the same materials
cannot be a ground for reviewing or
reconsidering the earlier order refusing to
grant sanction - On facts, act of the
Petitioners found to be done within their