1 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE BEFORE: THE HON’BLE JUSTICE UDAY KUMAR CRR 2101 of 2017 Inspector, Railway Protection Force, Sonarpur, Eastern Railway Sealdah Vs. Biswanath Naskar & Ors. For the Petitioners : Mr. Dhiraj Trivedi, Sr. Adv., Mr. Qamar Alam For the Opposite Party No. 1 & 2 : Ms. Tithi Mazumdar Hearing Concluded on : 25th April, 2025 Judgment on : 2nd May, 2025 UDAY KUMAR, J.: – 1. This criminal revision application, has been preferred under Section 397 read with Section 401 and Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), to assail the legality, propriety, and correctness of the order dated 28th April, 2017 (hereinafter referred to as "the impugned order"), passed by the Learned Judicial Magistrate, 4th Court-cum-Railway Magistrate, Sealdah (hereinafter referred to as "the Learned Magistrate"), whereby the Learned Magistrate discharged the respondents/accused persons, namely Mr. Biswanath Naskar, Md. Samim khan, Sushanta Kumar Mitra, and Tapan Mondal, from the charges under Sections 3 (a) and 4 of the Railways Properties (Unlawful Possession) Act, 2012 (hereinafter referred to as "the RP(UP) Act, 2012") labelled against them in RPF GR-154/2015/TR-159 of 2016, arising out 2 of Sonarpur RPF Post Case No. 04/2015 dated 28th October, 2015, registered. 2. The petitioner, Inspector of the Railways Protection Force (RPF), Sonarpur Sealdah Division, Eastern Railways, sought for the intervention of this Court to set aside the said order of discharge and direct the Learned Magistrate to proceed with the trial of the accused persons. 3. The prosecution case, as gleaned from the petition and annexed documents, revolves round the alleged missing of railway cash amounting to Rs.1,57,160/- from the Canning Railway Station Booking Office on 28th October, 2015. 4. The relevant facts are that - (a) On 28th October, 2015, during the counting of the previous day's earnings, a significant sum of Rs.1,57,160/- was reported missing from the custody of respondent no. 1, Mr. Biswanath Naskar, the Chief Booking Clerk. (b) A written complaint was promptly lodged by the Chief Ticket Inspector, Sonarpur Railway Station, implicating respondent No. 1 as the custodian and further mentioning the presence of respondent Nos. 2, 3, and 4 in the Chief Booking Clerk's room during the counting process. (c) Following the complaint, the Railway Protection Force (RPF) initiated an investigation, leading to the apprehension of all four respondents on 29th October, 2015. The initial search did not yield the missing cash from their direct physical possession. 3 However, relevant documents were seized from respondent no. 1. (d) A significant development occurred on 3rd November, 2015, with the recovery of Rs.1,56,205/- from a black polythene bag found near the backside booking window of the Canning Railway Station. This recovery was made in the presence of witnesses, and a seizure list was duly prepared. (e) Subsequent to the recovery, an enquiry was conducted by RPF, which was culminated into a report, submitted on 16th July, 2016. It was concluded therein that a prima facie case of misappropriation was established against all four accused, as their collective involvement was highly probable in given the circumstances, particularly in the light of recovery of the bulk of the missing cash from the close proximity to the Chief Booking Clerk's office. (f) Despite that, the Learned Magistrate discharged all four accused, through the impugned order dated 28th April, 2017. The primary ground for discharge, as discernible from the order, was the absence of direct physical recovery of the missing cash from the person of the accused. The Learned Magistrate seemingly held that such direct recovery was a sine-qua-non for the applicability of the RP(UP) Act, 2012. 5. However, petitioner has challenged the impugned order on the following grounds that: 4 (a) the Learned Magistrate fundamentally misconstrued Sections 3(a) and 4 of the RP(UP) Act, 2012, failing to appreciate its nature as a special statute that shifts the burden of proving lawful possession onto the accused once possession of property reasonably suspected to be unlawfully obtained is established. (b) the recovery of a substantial portion of the missing cash within the railway premises, in close proximity to the scene of the crime and shortly after its occurrence, constitutes significant circumstantial evidence implicating the accused, especially respondent No. 1 as the initial custodian. (c) the crucial role of respondent No. 1 as the entrusted custodian of the missing cash and the presence of the other respondents during the relevant time, arguing that the plea of non-recovery from their direct physical possession is unsustainable in this context. (d) the impugned order is perverse and illegal as it disregards the special provisions of the RP(UP) Act, 2012, and the compelling circumstantial evidence available, leading to a misapplication of law to the established facts. 6. Mr. Dhiraj Trivedi, learned advocate representing the petitioner, meticulously drew the Court's attention to the specific and crucial provisions enshrined within Section 4 of the Railways Properties (Unlawful Possession) Act, 2012. In his exposition, he underscored the profound legal significance of the statutory presumption articulated in this Section. He elucidated that this presumption operates to establish a 5 prima facie case against an individual when it is demonstrated that they are either found to be in possession of railway property at a particular point in time, or that they have been in possession of such property at any prior juncture, provided that the said railway property is reasonably suspected of having been unlawfully obtained. The legal consequence of this presumption, as highlighted by Mr. Trivedi, is a discernible shift in the burden of proof. Once the foundational fact of possession of suspiciously obtained railway property is established, the onus probandi transitions to the accused individual, compelling them to furnish a satisfactory explanation to the Learned Magistrate regarding the legitimacy of their possession. Absent such a satisfactory account, the law presumes the commission of an offense punishable under Section 3 of the aforementioned Act. 7. Expanding upon this foundational legal principle, Mr. Trivedi cogently argued that the factual matrix of the present case squarely triggers this statutory presumption. He posited that the recovery of a substantial quantum of the missing railway cash, amounting to Rs.1,56,205/-, within the geographical confines of the Canning Railway Station premises, and occurring within a remarkably short temporal frame following the initial report of its disappearance, must be unequivocally construed as falling within the legal ambit of "possession" under circumstances that inherently and objectively arouse a reasonable suspicion of unlawful handling. He emphatically contended that this crucial act of recovery should not be analysed in isolation, as a discrete event devoid of context, but rather must be integrally viewed in 6 conjunction with the preceding and equally significant fact of respondent No. 1, Mr. Biswanath Naskar, the Chief Booking Clerk, having been in the initial lawful possession of the entire sum of Rs.1,57,160/-. Mr. Trivedi asserted that this sequence of events – the initial lawful entrustment, the subsequent disappearance, and the proximate, concealed recovery within railway property – collectively generates a compelling and logical inference of unlawful dealing with the said property. 8. Furthermore, the learned counsel for the Petitioner meticulously submitted that the Learned Judicial Magistrate, in arriving at the decision to discharge the respondents/accused, had demonstrably failed to accord due weight and legal significance to the established custodial responsibility vested in respondent no. 1. Mr. Trivedi persuasively argued that the very nature of Mr. Naskar's role as the Chief Booking Clerk entailed a fiduciary duty and a concomitant accountability for the safe custody of the railway revenue. Consequently, the disappearance of a significant sum of cash from his direct control inherently placed a substantial onus upon him to provide a credible and legally acceptable explanation for its loss. Moreover, Mr. Trivedi extended this argument to encompass the presence of the other respondents, namely Md. Shamim khan, Sushanta Kumar Mitra, and Tapan Mondal, in the Chief Booking Clerk's room during the critical period when the cash was being handled and counted. He contended that this contextual fact, when intricately coupled with the subsequent recovery of the bulk of the missing cash within the railway premises, collectively furnished a sufficiently robust 7 factual basis to warrant the formal framing of charges against all four accused individuals. He reasoned that these intertwined circumstances necessitated the procedural safeguard of a full and comprehensive trial, thereby affording the accused individuals a legitimate platform to proffer their respective explanations for the unfolding events, while simultaneously enabling the prosecution to adduce further evidentiary material aimed at establishing the complete chain of circumstances and the specific involvement, if any, of each respondent in the alleged offense. 9. In a pivotal legal submission, Mr. Trivedi astutely highlighted that in legal jurisprudence concerning offenses such as misappropriation, criminal breach of trust, or other analogous violations involving entrusted property, the absence of a direct physical recovery of the illicitly obtained funds or property from the immediate physical possession of the accused individual should not be treated as the sole and invariably conclusive determinant of guilt. 10. He meticulously argued that the established principles of law recognize and give due credence to other legally recognized forms of possession, including the concept of constructive possession (where an individual has dominion and control without direct physical holding) and, critically in the context of the RP(UP) Act, 2012, the established fact of having been in possession of the property at a relevant point in time. 11. To lend further legal credence and authority to this crucial aspect of his argument, Mr. Trivedi explicitly relied upon the legal principles and the ratio decidendi articulated within paragraphs 3 and 7 of the 8 authoritative judgment rendered by the Hon'ble Supreme Court of India in the case of (1979) 4 SCC 23, titled State Of Maharashtra vs Vishwanath Tukuram Umale & Ors. This landmark case, dealing with the interpretation of the analogous provisions of the Railway Property (Unlawful Possession) Act, 1966, unequivocally established the legal proposition that "possession" under such statutes is not confined to the moment of seizure or apprehension but crucially encompasses the fact of having been in possession of the railway property at any material point in time relevant to the alleged offense. This precedent, according to Mr. Trivedi, directly supported the contention that the initial lawful possession of respondent no. 1, followed by the suspicious disappearance and recovery, was sufficient to trigger the provisions of the RP(UP) Act, 2012, irrespective of whether the cash was found in the direct physical custody of any of the accused at the time of their apprehension. 12. Mr. Trivedi, learned advocate appearing for the petitioner, reiterated the grounds mentioned in the petition and relied on the ratio decidendi under paragraph 3 and paragraph 7 of State Of Maharashtra vs Vishwanath Tukuram Umale & Ors., (1979) 4 SCC 23, to support his contentions regarding the interpretation of "possession" under the analogous Railway Property (Unlawful Possession) Act, 1966. 13. Per contra, learned advocate Ms. Tithi Mazumdar, representing respondents no. 1 and 2, anchored her defence on the assertion that the prosecution had demonstrably failed to adduce any direct evidence establishing their culpability in the alleged misappropriation of railway 9 cash. She underscored the critical absence of any eyewitness testimony that could place her clients at the scene of the crime in an incriminating manner or directly link them to the act of taking the missing funds. 14. Ms. Mazumdar argued that the entirety of the prosecution's case appeared to be predicated on unsubstantiated inferences, vague presumptions, and speculative conjectures, is legally untenable in the realm of criminal prosecution, where the burden of proof rests squarely on the prosecution to establish guilt beyond a reasonable doubt. 15. Specifically addressing the implication of respondent no. 1, the Chief Booking Clerk, Ms. Mazumdar contended that his implication stemmed solely from his designated role as the custodian of the missing cash. Similarly, she argued that the implication of the other respondents appeared to be solely based on their presence in the Chief Booking Clerk's room during the routine process of counting the day's earnings, a circumstance that, in itself, does not establish criminal intent or involvement. 16. A significant aspect of her argument revolved around the fact that despite apprehending the respondents by RPF during inquiry, they did not recover any portion of the missing cash from their direct physical possession or from any location under their active or constructive control. This absence of recovery severely undermined any assertion of their possession of unlawfully obtained railway property, a crucial element for charges under the RP(UP) Act, 2012. 17. Furthermore, Ms. Mazumdar addressed the nature of the alleged offence, emphasizing that the mere act of removing movable property, 10 without the requisite dishonest intention and other elements of theft as defined under the Indian Penal Code, would not automatically constitute the offense of theft. 18. In a critical point concerning the recovered cash, Ms. Mazumdar highlighted a significant investigative lapse on the part of the prosecution. She asserted that there was no evidence to suggest that the denomination and serial numbers of the missing cash were ever verified and compared with the cash recovered from the vicinity of the Chief Booking Clerk's chamber. The failure to establish a definitive link between the missing and recovered funds, she argued, cast serious doubt on the prosecution's claim that the recovered money was indeed the misappropriated railway property, raising the possibility that her clients were falsely implicated in the matter. 19. Based on these comprehensive arguments, Ms. Mazumdar concluded that the prosecution had failed to present a legally sound case warranting the continuation of proceedings against her clients. She asserted that the Learned Magistrate's order of discharge was not tainted by any illegality, impropriety, or irregularity and therefore earnestly prayed for the dismissal of the present Criminal Revision Petition. 20. On careful consideration of the impugned order, the averments made in the Criminal Revision Petition, the annexed documents, and the submissions advanced by the learned advocates, the core issue for determination involved in this case is: “Whether the Learned Magistrate was justified in discharging the respondents/accused solely on the ground of non-recovery of the 11 missing cash directly from their physical possession, particularly in light of the special provisions of the RP(UP) Act, 2012, the subsequent recovery of a substantial portion of the cash within the railway premises, and the custodial responsibility of respondent no. 1.” 21. To address the core issue, it is imperative to examine the relevant provisions of the RP(UP) Act, 2012, and to analyse the facts of the present case in light of established legal principles, including the interpretation of "possession," the significance of circumstantial evidence, and the principles governing discharge under Section 239 of Cr.P.C. 22. The Railways Properties (Unlawful Possession) Act, 2012: The RP(UP) Act, 2012, is a special enactment intended to curb the unlawful possession of railway property. Section 3 defines the offence, and Section 4 lays down a crucial presumption: "4. Presumption as to unlawful possession. —Where any person is found, or has been found, in possession of any railway property reasonably suspected of having been unlawfully obtained, unless he can account for such possession to the satisfaction of the Magistrate, he shall be presumed to have committed an offence punishable under section 3." This provision creates a statutory presumption, shifting the burden of proof onto the accused once possession of suspiciously obtained railway property is established.” 23. The term "possession" under law is not limited to physical custody. It includes both actual physical control and constructive possession, which signifies dominion and control over the property. In cases of 12 entrustment, the person entrusted with the property is considered to be in possession. 24. The Hon'ble Supreme Court in State Of Maharashtra vs Vishwanath Tukuram Umale & Ors., (1979) 4 SCC 23, interpreting the analogous 1966 Act, held that "possession" under the Act need not be subsisting at the time of seizure; it is sufficient if the accused is proved to "have been in possession" of the property at any point in time. The Court further clarified that even the transient possession involved in the act of theft is sufficient to attract the provisions of the Act. The relevant paragraphs of the judgment are instructive: "3. The word ‘possession’ is not a simple word of a single meaning. It has a variety of shades in different contexts. It is at least clear that under Section 8 of the Act, the fact that a person is ‘found’ in possession is sufficient to raise the presumption. It is equally clear that the words ‘has been found’ in the latter part of the section are also significant. They cannot mean that the possession must be subsisting at the time when he is found. If it is proved that he had been in possession of railway property which is reasonably suspected of having been unlawfully obtained, the presumption would arise. The emphasis is on the proof of possession of such property at any point of time." "7. ...Even the transient possession which a thief has over the stolen goods is covered by the word ‘possession’. It is not necessary that the possession must be legal or that the person in possession must have a valid title thereto." 25. Applying the aforementioned legal principles to the facts of the present case, I find that: 13 (a) Respondent no. 1, as the Chief Booking Clerk, was the lawful custodian of the missing Rs.1,57,160/-. The disappearance of such a significant sum from his custody inherently raises a reasonable suspicion that the property was unlawfully dealt with during his possession. This establishes that respondent no. 1 "had been in possession" of railway property reasonably suspected of being unlawfully obtained, thus potentially triggering the presumption under Section 4 of the RP(UP) Act, 2012. The Learned Magistrate appears to have overlooked this crucial aspect of initial lawful possession and the subsequent disappearance. (b) The disappearance of the cash during the counting process where other respondents were present, followed by the recovery of a substantial portion of it (Rs.1,56,205/-) within the railway premises in a concealed manner just a few days later, constitutes significant circumstantial evidence. While direct physical possession was not found with any of the accused at the time of apprehension, the recovery near the scene of the alleged offence, coupled with respondent no. 1's initial lawful possession and the presence of the other respondents during the crucial time, creates a crucial link that cannot be ignored at the stage of framing charges. The concealed nature of the recovery further strengthens the suspicion of unlawful possession. 14 (c) the ratio decidendi laid down by the Hon'ble Supreme Court in Vishwanath Tukuram Umale & Ors. (supra) is directly applicable to the present case. The emphasis on "proved to have been in possession" and the understanding that even transient possession during an unlawful act is sufficient under the Act negate the Learned Magistrate's narrow focus on direct physical recovery at the time of apprehension. Respondent No. 1 was undoubtedly in possession of the railway property, and its subsequent disappearance under suspicious circumstances brings the case within the ambit of Section 4 of the RP(UP) Act, 2012. (d) The Learned Magistrate's sole ground for discharge being the absence of direct physical recovery is, in the considered opinion of this Court, erroneous and a misapplication of the law. The RP(UP) Act, 2012, and the interpretation of "possession" under it, as elucidated by the Supreme Court, encompass situations where the accused may not be in physical possession at the time of apprehension but were in possession of the property reasonably suspected to be unlawfully obtained at an earlier point. The subsequent recovery within the railway premises further strengthens the suspicion and necessitates an inquiry into how the property was dealt with. (e) The stage of discharge under Section 239 Cr.P.C. is not meant for a mini-trial. The Magistrate is required to consider the police report and the documents sent with it and to hear the 15 accused and the prosecution to determine if there is sufficient ground for proceeding. "Sufficient ground for proceeding" exists when there is prima facie material, which if unrebutted, could lead to a conviction. In the present case, the disappearance of the cash from the custodian's possession, the suspicious circumstances surrounding it, and the subsequent recovery of a substantial portion within the railway premises constitute sufficient material to raise a reasonable suspicion of unlawful possession and warrant a trial under the RP(UP) Act, 2012. The accused would then have the opportunity to explain the circumstances and rebut the statutory presumption under Section 4 of the Act. The arguments raised by the learned advocate for the respondents regarding the lack of direct evidence and the failure to verify the denominations are matters that can be appropriately addressed during the trial through evidence and cross-examination. 26. For the reasons stated above, I am of the view that the Learned Magistrate committed a grave error of law and acted with material irregularity in discharging the respondents/accused persons solely on the ground of non-recovery of the missing cash from their direct physical possession. The impugned order fails to appreciate the special provisions of the Railways Properties (Unlawful Possession) Act, 2012, particularly Section 4, and the significance of the circumstantial evidence available on record. 16 27. In the result, the Criminal Revision Petition being no. CRR 2101 of 2017 is allowed. 28. There is no order as to the cost. 29. Interim order if any, stands vacated. 30. The order dated 28th April, 2017, passed by the Learned Judicial Magistrate, 4th Court-cum-Railway Magistrate, Sealdah, in RPF GR- 154/2015/TR-159 of 2016, arising out of Sonarpur RPF Post Case No. 04/2015 dated 28th October, 2015, discharging the respondents/accused, is hereby set aside. 31. The Learned Magistrate is directed to restore the case to its file and proceed with the trial in accordance with the provisions of the Code of Criminal Procedure, 1973, and the Railways Properties (Unlawful Possession) Act, 2012. 32. The respondents, namely Mr. Biswanath Naskar, Md. Shamim khan, Sushanta Kumar Mitra, and Tapan Mondal, are directed to appear before the Learned Judicial Magistrate, 4th Court, Sealdah, within four weeks from the date of this order for further proceedings in the case. 33. Let a copy of this judgment be sent to the Learned Judicial Magistrate, 4th Court-cum-Railway Magistrate, Sealdah, for necessary action and compliance. 34. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard. (Uday Kumar, J.)