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CASE NO.: Appeal (crl.) 1111 2000         Appeal (crl.)   1112    2000

PETITIONER: THE STATE OF BIHAR

       Vs.

RESPONDENT: CHANDRA BHUSHAN SINGH & ORS.

DATE OF JUDGMENT:       13/12/2000

BENCH: K.T.Thomas, R.P.Sethi

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     SETHI,J.

     Leave  granted.  Respondents, who are the employees of the  Railways,  were  caught red handed on  25.3.1987  while carrying  away  Railway  Cement unlawfully for  sale.   Upon inquiry  offences  under  The  Railways  Property  (Unlawful Possession) Act, 1966 (hereinafter referred to as "the Act") were  held  proved  against the  accused  persons.   Inquiry Report  (Complaint)  under the Act was filed by M.I.   Khan, Inspector,  RPF,  Samstipur, against the accused persons  in the  court  of Judicial Magistrate, First Class,  Smastipur. The accused persons filed applications before the Magistrate praying for their discharge on the ground that Sub-Inspector of  Railway  Protection  Force, who  submitted  charge-sheet against  them was not a "police officer" within the  meaning of   Section  173  of  the   Code  of   Criminal   Procedure (hereinafter  referred to as "the Code") and upon his report submitted  in the court, the Magistrate had no  jurisdiction to  take  cognizance.   Their  prayer was  rejected  by  the Magistrate  against  which they filed petitions in the  High Court  for  quashing the order of the Magistrate.  The  High Court  allowed the petitions of the respondents-accused  and quashed  the  proceedings  pending against them  before  the Railway  Magistrate,  vide  the   order  impugned  in  these appeals.   We  have heard the learned counsel appearing  for the  parties and perused the record and relevant  provisions of  the  Act besides the Code.  Mr.P.S.  Misra, the  learned Sr.Advocate  appearing  for  the   respondents  has  frankly conceded  that the order of the High Court impugned in these appeals  cannot be justified.  He has, however, prayed  that as   the  respondents-accused  had   raised  various   other contentions  for  quashing  of the  proceedings  before  the Magistrate,   this  Court  may   consider  desirability   of adjudicating  such pleas or remand the case back to the High Court  for  decision on the points raised but  not  decided. Section  3  of  the Act provides the  penalty  for  unlawful possession  of  railway  property.  Section 6  authorises  a superior officer or member of the Force to arrest any person

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who  has  been concerned in an offence punishable under  the Act  or  against whom a reasonable suspicion exists  of  his having  been  so  concerned  without   an  order  from   the Magistrate  and without a warrant.  Section 7 provides  that every person arrested under the Act, shall, if the arrest is made  by  a person other than the officer of the  Force,  to forward such person, without delay to the nearest officer of the  Force.  Section 8 of the Act provides:  "Inquiry how to be  made against arrested persons-- (1) When any such person is  arrested  by  an  officer of the Force  for  an  offence punishable  under  this  Act or is forwarded  to  him  under section  7,  he  shall proceed to inquire  into  the  charge against such persons.

     (2)  For  this  purpose the officer of the  Force  may exercise  the  same powers and shall be subject to the  same provisions  as the officer in charge of a police station may exercise  and  is  subject  to under the  Code  of  Criminal Procedure, 1898, when investigating a cognizable case:

     Provided that--

     (a)  if  the officer of the Force is of  opinion  that there  is  sufficient  evidence  or  reasonable  ground   of suspicion  against the accused person, he shall either admit him   to  bail  to  appear   before  a   Magistrate   having jurisdiction  in the case, or forward him in custody to such Magistrate;

     (b)  if  it appears to the officer of the  Force  that there  is  no  sufficient evidence or reasonable  ground  of suspicion  against the accused person, he shall release  the accused  person  on  his executing a bond, with  or  without sureties  as the officer of the Force may direct, to appear, if  and  when  so  required, before  the  Magistrate  having jurisdiction,  and  shall  make  a full report  of  all  the particulars of the case to his official superior."

     In  this  case, after seizure of the Railway  property and  interrogation of the accused, Case Crime No.14/87 under Section  3  of the Act was registered.  As per statement  of accused  Baleshwar  Singh  further recovery of 136  bags  of cement  in  addition  to  the  cement  already  seized,  was effected.   Shri  MI.  Khan, IPF/SPJ inquired the  case  and submitted  the complaint before the Magistrate.  Copy of the complaint has been annexed with this appeal as Annexure P-3. A  perusal  of Annexure P-3 unambiguously indicates that  it was  not  a report within the meaning of Section 173 of  the Code  but a complaint filed before the Magistrate, obviously under  Section  200  of the Code.  The process  against  the accused appears to have been issued under Section 204 of the Code.   By  no  stretch of imagination, Exhibit P-3  can  be termed  to be a report within the meaning of Section 173  of the  Code.  Merely because the inquiry was held by a  member of  the Force having some similar powers as are possessed by an investigating officer, would not make the complaint to be a  report  within  the meaning of Section 173 of  the  Code. Section  2(d) of the Code defines the complaint to mean  any allegation made orally or in writing to a Magistrate, with a view  to his taking action under the Code, that some person, whether  known or unknown, has committed an offence but does not  include a police report.  Explanation to clause (d)  to Section  2  of the Code provides:  "Explanation--  A  report made  a  police  officer in a case  which  discloses,  after

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investigation,  the  commission of a  non-cognizable  office shall  be deemed to be a complaint;  and the police  officer by  whom  such  report  is made shall be deemed  to  be  the complainant."

     Section  2(d) of the Code emcompasses a police  report also  as a deemed complaint if the matter is investigated by a  police officer regarding the case involving commission of a  non-cognizable  offence.   In  such a  case,  the  report submitted  by a police officer cannot be held to be  without jurisdiction  merely because proceedings were instituted  by the police officer after investigation, when he had no power to  investigate.   For  quashing the proceedings,  the  High Court relied upon the judgment of this Court in Balkishan A. Devidayal,  etc.  v.  State of Maharashtra, etc.  [1981  (1) SCR 175].  The reliance appears to be misconceived.  In that case the court, while interpreting the provisions of Section 25  of  the Evidence Act held, "an officer of the RPF  could not,  therefore,  be deemed to be a ’police officer’  within the  meaning  of  Section  25  of  the  Evidence  Act   and, therefore,  any  confessional  or  incriminating   statement recorded  by  him in the course of an inquiry under  Section 8(1)  of the 1966 Act cannot be excluded from evidence under the  said  section".  As noted earlier by us, this Court  in Balkishan’s case also observed that an officer conducting an inquiry  under Section 8(1) of the Act has not been invested with  all powers of an officer incharge of a police  station making  an investigation under Chapter XIV of the Code.   He has  no  power to file a charge sheet before the  Magistrate concerned  under Section 173 of the Code.  The main  purpose of  the  Act  was  to invest  powers  of  investigation  and prosecution  of  an offence relating to Railway property  in the  RPF  in  the same manner as in a case relating  to  the offences under the law dealing with excise and customs.  The offences  under  the Act are non-cognizable which cannot  be investigated by a police officer under the Code.  The result is  that initiation of inquiry for an offence inquired  into under this Act can be only on the basis of a complaint by an officer of the Force, as was actually done in this case.  To the  same  effect is the judgment of this Court in  Criminal Appeal  No.512-515  of  1997 decided on 2.5.1997  (State  of Bihar  and Ors.  v.  Ganesh Chaudhry & Ors.).  Mr.Misra, the learned  Senior  counsel vehemently argued that the case  be remanded  back  to the High Court for adjudication of  other grounds on the basis of which the proceedings were sought to be  quashed.  He pointedly referred to the averments made in para 27 of the petition filed in the High Court to urge that as the trial of the case was pending against the accused for over  a period of 5 years, the proceedings against them  are liable  to be quashed under a notification allegedly  issued by  the State Government.  Learned counsel has neither shown us  the  notification nor the authority of law  under  which such  notification  could  have  been issued  by  the  State Government.   He  also  tried  to  emphasise  that  even  on admitted  facts no case under Section 3 of the Act was  made out  against the accused and that the proceedings  initiated against  his clients were otherwise not sustainable.  We are of the opinion that such pleas cannot be raised before us at this  stage and the case cannot be remanded back to the High Court  in view of the fact that the proceedings against  the respondents  appear  to have been sufficiently prolonged  on one  pretext or the other for over a period of 13 years.  We are,  however,  of the opinion that the respondents  have  a statutory  right to raise all such pleas as are available to them  under the law during the trial before the  Magistrate.

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All such pleas, when raised, can appropriately be considered and  disposed  of by the trial court.  In view of  what  has been  stated  hereinabove,  these  appeals  are  allowed  by setting  aside the order of the High Court and upholding the order   of   the  Magistrate   refusing  to  discharge   the respondents  in  the  complaint  pending  before  him.   The Magistrate is further directed to expedite the trial.