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CASE NO.: Appeal (crl.)  1087 of 2006

PETITIONER: State of Madhya Pradesh

RESPONDENT: Mukesh & Ors

DATE OF JUDGMENT: 19/10/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (Crl.) No. 640 of 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

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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

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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.\027A person abets the  doing of a thing, who\027   First.--  Instigates any person to do that thing; or   Secondly.\027Engages 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. ‘

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       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.