H. N. Kapoor, J. - (1.)THIS appeal has been filed by the State against the order and judgment dated 11-7- 1973 of Special Railway Magistrate, North Eastern Railway, Varanasi acquitting the respondent of the charge under Section 3 of the Railway Property (Unlawful Possession) Act. The prosecution case as revealed in the FIR and by the prosecution evidence briefly stated is as follows : Respondent -Shivendra Pratap Singh was the chargeman in Traction Assembly Stores, Diesel Locomotive Works, Varanasi. On 24-12-1971 at about 4.30 P. M. after finishing his duty he wanted to leave the workshop by lorrygate on his Motorcycle. Pawan Kumar Madan (P. W. 3) Inspector, RPF was on duty. Because the respondent wanted to leave in a hurry Pawan Kumar Madan felt suspicious and he stopped him. He directed Nizamuddin Ansari (PW 9) A. S. I., R. P. F. to make a search of the motorcycle. He, accordingly, took search of the motorcycle in the presence of Pawan Kumar Madan (PW 3) and Devi Paltan Lal (PW 2) Rakshak R. P. F. On search, two coils of cable wires Exs. 6 and 7 wrapped in a polythene and having the labled reeling slips lead seal from the tin box which was attached to the carrier of the motorcycle of the accused was recovered. A. S. I. Nizam Uddin prepared the search and seizure memo Ex. Ka. 6 and the copy of the same was given to the accused. They were sealed at the spot in the same tin container Ex. Ka. 3. Nizam Uddin took the accused along with the sealed tin container to the R. P. F. Post D. L. W. Ram Prasad Singh Rakshak (PW 4) then made necessary entries in the general diary at 5.15 P. M. at the instance of Sri Ansari. Enquiry of this case under Section 8 of the Act was made by A. S. I. Nizamuddin himself. He inspected the site and prepared the site- plan Ex. Ka. 6. The sealed articles were kept in the Malkhana. Parvesh Ji Arora (PW 1) who was the senior chargeman, D. L. W. Varanasi inspected both t!ie articles at the R. P. F. Post under tie orders of the Superintendent, Traction Assembly Shop. The goods were taken out from the workshop by A. S. I. Nizamuddin and after inspection they were again sealed and kept in the Malkhana. Sri Arora had found the seal intact and had compared it with title sample seal. He submitted his report Ex. Ka. 3 after examining those cable wires. He gave his expert opinion that that type of material was being used in D. L. W. Traction Assembly Shop. A. S. I. Nizam Uddin had also gone to Poona in order to make enquiry from the firm which supplied those goods to D. L. W. Sri K. B. R. Rao, Technical Manager (PW 6) Western Insulated Cables Ltd. Poona gave his opinion in writing which is Ex. Ka. 9 that the cables with the reeling slips which had been shown to him had been despatched to D. L. W. siding vide challan No. PC/5905 dated 22-4-1970. The sealed bundles were taken to Poona by A. S. I. Nizam Uddin accompanied by his superior officer, Inspector Pawan Kumar Madan (PW 3). M. R. Hawlikar (PW 7) who was the Chief Tester in India Cable Co. Ltd. Poona also examined those cables and prepared test sheets Ex. Ka. 12 and Ex. Ka. 13. According to him the reeling slips which were Ex. 10 and Ex. 11 tallied with the material which was sent in that batch. He being the chief tester used to check each batch before it was despatched. The accused had also made a statement in writing dated 24-12-71 (Ex. Ka. 17) before the A. S. I. Nizam Uddin (PW 9) soon after his arrest. After completing the enquiry, A. S. I. Nizam Uddin filed a complaint Ex. Ka. 18 against the accused who was duly tried.
(2.)THE accused admitted that the cables Exs. 6 and 7 were recovered from the tin carrier of his motorcycle. It was, however, not locked and he did not know who had kept these goods in the tin carrier. He stated that he himself was surprised as to who had kept these articles in his carrier. He then stated that those cables were not used in D. L. W. because they did not bear any marking of the D. L. W. He, further stated that he did not know if the firm, Western Insulated Cables Ltd. Poona had supplied such cables to the D. L. W. He also stated that he did not know if such cables were received in the store but there was no shortage in the stores. With regard to his written admission he stated that Pawan Kumar Madan had asked him to give his explanation in writing. He had written something but he (Madan) had torn it out and told that he should write whatever he was asked to write. Madan had threatened him that otherwise he would be kept in the lock-up atleast for two days and it would ruin his reputation. He also told him that after all he would get another opportunity before the Magistrate. he got very much perturbed and then gave his statement Ex. Ka. 17 in writing. Lastly he stated that Madan was inimical to him and so he got him falsely implicated in this case with the help of his own R. P. F. men. He examined four witnesses in defence, namely, Samar Bahadur Singh (DW 1), Subrata Ghosh (DW 2) Krishna Chandra Srivastava (DW 3) and Kashi Prasad Singh (DW 4)., Samar Bahadur was the officer in-charge of R. P. F., D. L. W. He has not said anything particular except that a register was kept at the special gate of the workshop. DW 2 Subrata Ghosh stated that a meeting of the Area Committee was held in December, 1971 and) R. P. F. Inspector Pawan Kumar Madam attended that meeting. In that meeting; it was discussed that a number of thefts were being committed in the colony and that the R. P. F. was not being able to control the thefts. In that meeting S. P. Singh, accused had said that there was no use to entrust the R. P. F. with the duty of checking the theft etc. outside the workshop because the R. P. F. had failed to check up the thefts. Pawan Kumar Madan reacted to these remarks and had left the meeting. At that time he had said that he would show how to check the theft and would take precaution to catch the criminals. Sri S. P. Singh was the elected member of the Area Committee. He was then implicated in this case after 2 or 3 weeks. DW 3 Krishna Chandra Srivastava stated that on 24-12-71 he met S. P. Singh at about 1.30 P. M. He had then gone with S. P. Singh to the material control section for checking the printing of material issue slips. He had gone through the main gate. He stayed there for about an hour. At about 4.15 P. M., S. P. Singh had a talk with him that he would go to his house and then he left for his house. He subsequently learnt with great surprise that he was implicated in this case. Kashi Prasad Singh DW 4 stated that in 1971 Pawan Kumar Madan had asked him to give some condemned pipes for getting his sofa-set prepared. THE accused S. P. Singh was the supervisor at that time and the witness had worked under him and he told Pawan Kumar Madan to contact S. P. Singh as it was not possible for the witness to arrange for the pipe. THE witness then stated that after 3 or 4 days S. P. Singh had told him not to give pipes to Madan. THE witness, however, admitted that such pipes could not be taken out of the workshop. That could be taken by committing theft only. This suggestion was given to Madan also but he denied the suggestion.
In support of its case the prosecution has examined Rakshak Devi Paltan Lal PW 2, Inspector Pawan Kumar Madan PW 3 of R. P. F. and A. S. I. Nizam Uddin Ansari PW 9 R. P. F. as recovery witnesses. Nizam Uddin Ansari also made enquiry under Section 8. He also proved the confession of the accused Ex. Ka. 17. V. N. Sahai Verma PW 8 is the wardkeeper of General Stores Department D. L. W. He proved from the register that such cables had been received in the stores as on 18-6-70 there was entry at serial nos. 195 and 197. He also proved from the purchase order file that the order for such cables had been placed and that such cables were being used in the loco. He stated on the basis of the register dated 23-10 -1970 that this material had been issued to the storage ward. Parvesh Ji Arora (PW 1) Senior Chargeman, D. L. W. stated that the cables of such specification as noted on the coils were used in the D. L. W. K. B. R. Rao (PW 6) proved his report Ex. Ka-9 which was to the effect that these two coils cables, according to the specification mentioned, formed part of order no. P. 3313 and batch no. 159652 & 169775 were supplied to D. L. W. Varanasi by his company i. e. Insulated Cables Ltd. Poona. M. R. Hawlikar is the chief tester of that company. He stated that he tested that batch before it was being despatched and the reeling slips Exs. Ka-11 and 10 attached to these cables tallied with the description noted over the test sheets of the original batch Ex. Ka-12 and Ka-13. The remaining two witnesses, namely, Constables Ram Prasad Singh (PW 4) and constable Ramji Pandey (PW 5) are formal witnesses who made entries in the general diary.

The learned Special Magistrate arrived at the conclusion that the cable coils Exs. Ka. 6 and 7 were the railway property, possession of which was punishable under Section 3 of R. P. (U. P.). He found that this property was being passed out of the D. L. W. in the tin box of the motorcycle without any authority and, as such, this material was obtained unlawfully for being removed from the railway administration. The learned Magistrate however took the view that there was no evidence on record to suggest that the accused while in the D. L. W. was so in control of bis motor cycle that no body could have kept such cables coils in the tin box of his motor cycle without the consent and knowledge of the accused. He was also inclined to believe the defence evidence that the accused himself could not have kept the cable coils in the box between 1.30 a. m. and 4.15 P. M. He then observed that the accused was required to discharge the burden showing that he came lawfully in possession only after the prosecution was able to establish its case against the accused.

(3.)THE learned Magistrate further held that the confessional statement, paper no. A-6 (Ex. Ka-17) was the only evidence which was brought in this case for proving the prosecution case completely and in case this statement was excluded the prosecution case could not be proved. He then excluded this statement from consideration on the ground that it was hit by Sec. 162 CrPC as the A. S. I. Nizam Uddin Ansari (PW 9) of R. P. F. was the Police Officer who was conducting the enquiry under Ch. 14 of the Criminal Procedure Code. THE learned Magistrate repelled the argument of the learned counsel for the accused that the confession was obtained by threat or inducement and held that it was not hit u/S. 24 of the Indian Evidence Act. He held that the confession otherwise was complete. He ultimately held that it was hit under Sec. 25 of the Indian Evidence Act as it was recorded before the Police Officer and, as such, it was to be excluded from consideration. After excluding this confession he held that the prosecution case was not proved beyond reasonable doubt as the chances that accused had no knowledge about the presence of cable coils Exs. 6 and 7 in the tin box are not excluded in entirety. He, therefore, gave benefit of doubt to the accused and acquitted him.
The main point to be decided in this appeal therefore, is whether the confessional statement Ex Ka-17 is hit under Section 162 CrPC. The learned Assistant Government Advocate has placed reliance on the case of State v. Durga Prasad, AIR 1974 SC 2136 in which it was held that the enquiry under Sec. 8 (i) of the Railway Property (Unlawful Possession) Act, 1966 by an officer of the Railway Protection Force cannot be deemed to be an investigation for the purposes of Sec. 162 CrPC. In that case the officer of the R. P. F. making enquiry had obtained the signatures of the witnesses on their statements and the argument was that he had committed flagrant violation of Sec. 162 CrPC and the entire trial was vitiated because those statements had been brought on the record and had been put to the witnesses in the examination-in-chief. Hon'ble Supreme Court held, overruling the decision of the High Court that the trial was not vitiated even though such- statements signed by the witnesses had been brought on the record. The order of acquittal was set aside and the order of conviction recorded by the Sessions Judge was restored. This decision is dated 28-3-74 while the learned Magistrate had decided the present case on 11-7-73 when this decision was not available. In that judgment their Lordships referred to the earlier decision in the case of Radhu Joti Savant v. State, AIR 1966 SC 1746. It was a case under the Central Excise and Customs Act. The provisions of Section 21 (i) (ii) of that Act and the provisions of Sec. 8 (i) and (ii) of the Railway Property (Unlawful Possession) Act were held to be identical in material respects. In the earlier decision it was held that the confession made by an accused before the Central Excise Officer was not hit under Section 25 of the Indian Evidence Act as it would not be deemed to have been recorded under Section 162 CrPC. By referring to the earlier decision of 1966 their Lordships made it abundantly clear that the same principles would apply to a confessional statement made under R. P. (U. P.) Act even though they were not actually considering confessional statement. They were only considering the statements of witnesses recorded by the enquiry officer after obtaining their signatures. In the light of this decision of the Hon. Supreme Court there can be no doubt that the view taken by the learned Magistrate on the point of Section 162 CrPC is erroneous ami the confessional statement (paper no. A-6) Ex. 17 cannot be hit by Sec. 162 CrPC.