High Court · 2024

Legal Reasoning

902-ABA-630-24.odt {1}IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD902 ANTICIPATORY BAIL APPLICATION NO. 630 OF 2024Amol Devram VardeVERSUSThe Railway Police Force (RPF) And Another......Mr. Rajendra Deshmukh, Senior Advocate along with Mr. Nimish S.More i/b Mr. Devang R. Deshmukh, Advocate for ApplicantMr. R.B. Bagul, Advocate for Respondent No.1Ms. P.V. Diggikar, APP for Respondent No.2 - State......CORAM: HITEN S. VENEGAVKAR, J. DATE: 30 SEPTEMBER, 2025PER COURT :-1.The present application is filed under Section 438 of Code ofCriminal Procedure (Cr.P.C.)1973 seeking anticipatory bail in connectionwith C.R No. 18 of 2023 registered before the Judicial Magistrate, FirstClass (Railways), Aurangabad for the offence punishable under Section3(a) of the Railways Property (Unlawful Possession) Act 1966 (in short,‘RPUP’ Act). This court, by order dated 19th April 2024 granted interimprotection to the present applicant, directing him to attend theconcerned police station from 26th April 2024 to 2nd May 2024 and toco-operate with the investigation. The learner APP does not dispute thatthe applicant has scrupulously complied with the directions andattended the police station as required. The interim protection hasremained in force since then. 902-ABA-630-24.odt {2}2.The prosecution story in brief is that on 30th December 2023,one Head Constable Kailash Kokre of Malegaon Police Station informedthe Railway Police Force that he had detained one person, namelyShaikh Hussain, having several pieces of railway signaling cables in hispossession. Said person could not produce any valid authorization forpossessing or transporting such cables, acting on the said information,Officers from the Railway Police Force visited the spot at Malegaon,District Washim and seized around 1,235 k.g. of unserviceable insulatedrailway signaling cables valued at approximately Rs. 1,48,000/-3.Upon interrogation of Shaikh Hussain, it was alleged that fiveother persons were involved in the theft or unlawful possession of therailway property. Consequently, six accused persons were arrested on31st December, 2023 and were produced before the learned railwaymagistrate for remand. All the arrested persons were subsequentlyreleased on bail on 1st January 2024. The name of the present applicantwho is a serving signal engineer with Nanded Railway Division, doesnot appear either in the FIR or in the remand papers of those arrestedpersons. 4.The record further reveals that the applicant joined services as aSignal Engineer in the year 2015 and was posted at Aurangabad at therelevant time. Pursuant to a notice issued by the railway police, the 902-ABA-630-24.odt {3}applicant attended the office of the Investigating Officer at Nanded onmultiple occasions, including on 21st December, 2023 and again on6th March 2024 and extended full cooperation during the inquiry. It isnot in dispute that he has attended whenever called and that there wasno non-compliance on his part.5.The learned advocate for the applicant contains that there is nomaterial whatsoever to connect with the crime in question. It is urgedthat neither the seizure panchanama nor the statements of any of theco-accused disclose any role of the present applicant. The applicant wasnot found in possession of any railway property, nor was any suchproperty entrusted to him. It is further contended that the confessionalstatements recorded by the RPO from the arrested accused undersection 8(2) of the RPUP act do not attribute any involvement to theapplicant. Therefore, his arrest at this stage when investigation iscomplete and the complaint already filed would serve no usefulpurpose.6.Learned advocate further pointed out that the offence undersection 3 of RPUP act is punishable with imprisonment which mayextend to 5 years or with fine or with both and in the absence of specialreasons the minimum sentence prescribed is 1 year with fine of Rs.1,000/-. Thus, the offence is clearly punishable below 7 years. It is 902-ABA-630-24.odt {4}therefore submitted that custodial interrogation is not necessary,especially when the applicant has cooperated with the investigation forseveral months and has been under interim protection. 7.On the other hand, learned APP opposed the applicationcontending that the applicant is the mastermind behind the crime.According to the prosecution, the cables were removed and transportedthrough connivance of certain officials of the signal department and theapplicant being a senior Signal Engineer might have facilitated thesame. It is urged that custodial interrogation is necessary to unearth thelarger conspiracy and to trace the source of the railway property. 8.On a pointed query by the Court as to whether the investigationis complete and the charge-sheet or complaint has been filed, learnedAPP fairly submitted that the complaint has already been lodged beforethe learned Judicial Magistrate (Railways) and the matter is pendingtrial. Thus, investigation is over and no further recovery is to be effectedfrom the applicant.9.The offence alleged against the applicant is under section 3 (a)of the RPUP Act. The said section reads as follows.“3. [Penalty for theft, dishonest misappropriation or unlawfulpossession of railway property] - [Whoever commits theft, ordishonestly misappropriates or is found, or is proved] to havebeen, in possession of any railway property reasonably suspected 902-ABA-630-24.odt {5}of having been stolen or unlawfully obtained shall, unless heproves that the railway property came into his possession lawfully,be punishable —(a) for the first offence, with imprisonment for a termwhich may extend to five years, or with fine, or with bothand in the absence of special and adequate reasons to bementioned in the judgment of the court, suchimprisonment shall not be less than one year and such fineshall not be less than one thousand rupees”10.Thus, it is evident from the statutory provision that themaximum punishment prescribed is 5 years. Thus, the offence ispunishable below 7 years.11.In the context of the section 438 of CrP.C. the principles laiddown by the Hon’ble Supreme Court in Gurbaksh Singh Sibbia v. Stateof Punjab, (1980) 2 SCC 565, (1980) 2 SCC 565 and reiterated by theConstitution Bench in Sushila Aggarwal v. State (NCT of Delhi), (2020)5 SCC 1 are well settled. The power to grant anticipatory bail is anextraordinary remedy to prevent arbitrary arrest and humiliation, andonce the applicant demonstrates co-operation with the investigation andabsence of likelihood of misuse, the protection ordinarily continues tillthe conclusion of the trial unless there are exceptional circumstancesjustifying its withdrawal.12.In the present case, the record unmistakably shows that theapplicant has honoured all directions of this court and of the 902-ABA-630-24.odt {6}investigating officer. There is nothing on record to show that he hasattempted to evade investigation, tamper with the evidence or influenceany witnesses. His conduct has remained fair throughout. Theco-accused who were actually found in possession of the railwayproperty, have already been released on bail by the competent Court.The applicant was not apprehended on the spot, nor is any recoveryshown from him.13.The submission of the learned APP that the applicant is themastermind is based on mere suspicion and is not sustained and is notsubstantiated by any concrete material. Once the complaint has beenfiled and the investigation is concluded, the need for custodialinterrogation does not survive. The liberty of an individual cannot becurtailed on unverified assumptions when investigation has run in itscourse.14.The RPUP Act, though a special statute, does not create anoffence punishable with life imprisonment or death. Section 3prescribes punishment below 7 years. The offence is non-bailable, butnot so grave as to justify pre-trial incarceration, particularly when theaccused has been cooperative. The purpose of the custodialinterrogation is primarily to facilitate investigation, once investigation isover, arrest loses its rational and becomes punitive. 902-ABA-630-24.odt {7}15.It is well settled that anticipatory bail, once granted, should notordinarily be limited by time unless circumstances warrant itscancellations. The same principle has been narrated in the case ofSushila Aggarwal, (supra), where the Hon’ble Apex Court observed thatthe protection under Section 438 of Cr.P.C. need not be time-bound andmay continue till the end of trial, subject to the conditions imposed andthe right of the prosecution to seek cancellation upon misuse. 16.In the light of these settled principles, I find no reason to denyprotection to the present applicant. The interim protection grantedearlier deserves to be confirmed. The applicant being a governmentemployee in a responsible post, is unlikely to abscond or evade trial.There is no allegation of violation of the interim conditions.17.Considering the entire material on report, the stage ofproceedings, the conduct of the applicant and the nature of the offence,I am satisfied that this is a fit case to grant anticipatory bail.18.In the light of the above, the application is allowed and theinterim protection granted to the applicant by order dated 19th April,2024 stands confirmed on the same terms and conditions. [ HITEN S. VENEGAVKAR ] JUDGES P Rane