B.C. Saxena vs State

In all these petitions the petitioners are the employees of Andhra Steel Corporation and the respondent in the State represented by the Inspector, Railway Protection Force R.P.F. Post, Marripalem Visakhapatnam.

The common question of law that arises in all these cases of considered are :

(1) When does a person against whom an enquiry is stated for offences punishable under the Railway Property (Unlawful Possession) Act, become an accused within the meaning of Article 20(3) of the Constitution of India ?

(2) What is the scope of enquiry u/s 9 of the Railway Property (Unlawful Possession) Act, and at what stage can a person take shelter under Art 20(3) during such an enquiry ?

The necessary facts which give rise to this question are as follows :-

In all these cases the respondent viz. the Inspector Railway Protection Force, R.P.F. Marripalem Visakhapatnam is the complainant. He registered a case against the Director and other officials of the Andhra Steel corporations at Waltair. It is alleged that the premises of the Corporation was searched on suspicion wherein several properties belonging to the Railway were found. A regular complaint under S. 3(a) of the Railway Property (Unlawful Possession) Act was filed against one C. L. Mittal and four other on 29-11-1982 which was taken on file as a Calendar case by the Judicial Magistrate of the First Class for Railway at Waltair. But before, that an enquiry was conducted under S. 8 of the Act and thereafter under S. 9 of the Act and a notice was issued to B. C. Saxena, Accountant of the Corporation. Thereafter a separate complaint u/s 193 I.P.C. was filed against B. C. Saxena on the same date i.e. 29-11-1982. It is alleged in this complaint that the persons mentioned their who were found in unlawful possession of several properties belonging to the Railway, were required to produce certain documents but they produced false documents like challans etc., and that therefore, all of them are liable for the offence punishable under S. 193 I.P.C. This complaint was taken on file as C.C. No. 319 of 1982 by the learned magistrate. To quash these proceedings Cr.M.P. 25 of 1983 is filed in this court. Another complaint was filed as 19-11-1982 against C. L. Mittal, chief Executives of the Corporation, for offences punishable under Sections 174 and 175 I.P.C. on the ground that though he was summoned to give evidence as contemplated under S. 9 of the Act, he attend only once but later failed to attend only once but later failed to attend the enquiry with the necessary documents and therefore, he deliberately and intentionally disobeyed the instructions contained in the summons served upon him. This complaint was taken on file by the learned Magistrate as C.C. No. 323 of 1982. To quash these proceedings Cr.M.P. 33 of 1983 is filed in this court. On the same day another complaint was filed under Sections 179 and 180 I.P.C. against the same accused viz., C. L. Mittal, chief Executives of the Corporation, alleging that the accused refused to give a statement and also refused to sign. This complaint was also registered as C.C. 324 of 1982 Cr.M.P. No. 35 of 1983 is filed to quash the proceedings in C.C. 324 of 1983. A compliant was also filed under Secs. 174 and 175 I.P.C. against C. L. Mittal President of the management Committee of the Corporation alleging that during the enquiry in Case No. 75 of 1981, summons were served on the accused at his Officer at Bangalore and he was directed to furnish records but he disobeyed the same. This case is registered as C.C. No. 187 of 1982 and to quash these proceedings 1982 Cri M.P. 2947 is filed. As already mentioned, against all these persons the Railway Protection Force registered a case u/s 3 of the Act.

The learned counsel of the petitioners submits that all these persons against whom the cases is registered by the R.P.F. under S. 3(a) of the Act, cannot be compelled to give evidence against themselves, inasmuch as they have become accused and are protected under Art. 20(3) of the Constitution of India; and even if they refuse to participate in any enquiry of produce false documents in an enquiry under S. 9 of the Act, they cannot be prosecuted for offences punishable under Sections 174 175 and 193 etc. of the Indian Penal Code.

Before I proceed to consider this question in detail it becomes necessary to refer to some of the relevant provisions of the Railway Property (Unlawful Possession) Act 1966. Section 3 prescribes penalty for being in an unlawful possession of railway property. Section 2(a) defines ''force'' to mean the Railway Protection Force consisted under S. 3 of the Railway Protection force Act 1957. Section 2(c) defines ''officer of the force'' to man an Officer or and above the rank of Assistant Sub-Inspector appointed to the Force and includes a superior officer. Section 2(c) defines ''Superior Officer'' means any of the officers appointed under S. 4 of the Railway Protection Force Act 1957 and includes any other officer appointed by the Central government as a superior officer of the Force. Section 5 lays down that notwithstanding anything contained in the Code of Criminal Procedure 1898, an offence under the Act shall not be recognizable. Section 6 empowers any superior officer or members of the Force without an order from the magistrate or without any warrant to arrest any person who has been concerned in an offence punishable under the Act or against whom a reasonable suspicion exists or his having been so concerned. According to Section 7, every person arrested for an offence punishable under the Act shall if thee arrest was made by a person other than an officer of the Force, be forwarded without delay to the nearest officer of the Force. Then there are the two sections which are important viz., Sections 8 and 9 of the Act, which read thus :-

"8 Inquiry how to be made against arrested persons.

(1) When any person is arrested by an officer of the Force for an offence punishable under this Act or is forwarded to him under S. 7, he shall proceed to inquire into the charge against such person.

(2) For this purpose the office of the Force may exercise the same power 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 of 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 forwarded him in custody to such Magistrate :

(b) if it appears to the officer of the Force that there is not sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing officer of the Force may direct to the Magistrate having jurisdiction, and shall make a full report of all the particular of the case to his official superior."

Power to Summon persons to give evidence and produce documents.

(1) An officer of the Force shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a documents or any other things in any enquiry which such officer is making for any of the purpose of this Act.

(2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.

(3) All persons so summoned shall be bound to attend either in persons or by an authorised agent as such officer may direct and al persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required :

Provided that the exemptions under Sections 132 and 133 of the CPC 1908, shall be applicable to requisition for attendance under this section.

(4) Every such inquiry as aforesaid shall be deemed to be a "judicial proceedings within the meaning of Section 193 and Section 228 of the Indian Penal Code."

It can be seen that u/s 8 of the Act an officer can conduct an enquiry in respect of a person who is forwarded to him u/s 7 and who is suspected to have committed an offence, and such an officer may exercise the same provisions as the officer in charge of a police station may exercise and is subject to under the Code if Criminal Procedure when investigating a cognizable case. During the enquiry if the officer finds that there is sufficient evidence or reasonable ground of suspicion against the person so produced before him, the officer shall either release him on bail or send him before the Magistrate having jurisdiction in the case or if there is no sufficient evidence against such a person, the officer shall make a report of particulars of the case to his official superior. It may also be noted at this juncture that the officer who is inquiring into the case can exercise the same powers as the officer-in-charge of a police station viz., he can arrest and also send such a person for judicial custody. According to Section 9 an officer who has initiated inquiry u/s 8 together evidence is invested for that purpose with the power to summon any person whose evidence he considers necessary, either to give evidence or produce a document. u/s 9(3) any person so summoned shall be bound to attend either in persons or by an authorised agent, and to state the truth upon any subject respecting which he is examined or make a statement and produce such a document and other evidence as may be required. According to Section 9(4) every such inquiry shall be deemed to be a judicial enquiry with in the meaning of Section 198 and 228 of the Indian Penal Code. The complainant, therefore, alleges that since these persons have contravened the provisions of Section 9 (1) to (3) of the Act, they are liable to be prosecuted for the said offences u/s 174 175 and 193 of the Indian Penal Code.

In all these cases the complainant''s case is that the persons who are required to give evidence or to produce certain documents u/s 9 of the Act either disobeyed summons or produced false documents and therefore, they are liable for offences punishable under Sections 174 175 179 and 193 etc., of the Indian Penal Code.

The case of the accused is that a case was registered by the Railway Protection Force against all of them one of them was arrested initially but later released on bail; the remaining accused were granted anticipatory bail and thereafter a regular complaint was file against all of them u/s 3(a) of the Act, as such as they have become accused even by the time the case was registered by the Railway Protection Force and long before the enquiry u/s 9 of the Act was commenced and consequently they are protected by Article 20(3) of the Constitution of India.

On behalf of the prosecution it is submitted that till the regular complaint is filed in the court these persons cannot be treated as accused. The complaint in the instant case was file only on 29-11-82 but the offence committed by these persons viz., contravention of the provisions of Section 9 of the Act, were much prior to the filing of the complaint and therefore they cannot claim protection under Article 20(3) of the Constitution of India.

The main question, therefore, that arises for consideration is"when did these persons become accused ?." So far it is well settled that there should be a formal accusation. Section 190 Cr.P.C. lays down that a Magistrate can take cognizance of an offence upon receiving a complaint of facts upon a police report of such an offence and information received from any person other than a police officer, or upon his own knowledge that such an offence has it is committed. In this instant case, it is not is dispute that though an Officer of the Railway Protection Force is empowered to investigate he cannot file a report u/s 173 Cr.P.C. he can only file a complaint. So afar as the persons against whom an enquiry is commenced u/s 9 are concerned can it be said that merely because the Railway Protection Force has in their registers entered a case against them and arrested them they become accused so as to invoke Article 20(3) of the Constitution of India.

In M.P. Sharma and Others Vs. Satish Chandra, District Magistrate, Delhi and Others, Their Lordships considered the scope of Article 20(3) of the constitution of India and held that Article 20(3) embodies the principle of protection against compulsion of self-incrimination which is one of the fundamental cannons of the British system of criminal jurisprudence and which has been adopted by the American system and incorporate as an article of is Constitution. Their Lordships also observed that it is a right pertaining to a person ''accused'' of an offence it is a protection against such compulsion resulting in his giving evidence against himself. It is also observed - "broadly stated the guarantee in Article 20(3) is against ''testimonial compulsion.''" Then their Lordships also pointed out that such a guarantee should be available to persons against whom a First Information Report has been recorded as accused therein. The learned counsel relying up on this decision, sought to contend that the Railway Protection Force has registered the case and issued First Information Report. I have persuade that report. I have persuade that report that does not show that it is the one under Sections 154 and 155 Cr.P.C. At the most it can be said that the Railway Protection Force have registered the case. The Act does not compel the Railway Protection Force to report the more to the regular police and get the FIR issued. In M. P. Sharma''s case (supra) their Lordships referred only to the FIR issued by regular police.

Badku Joti Savant Vs. State of Mysore, is a case which arises under the sea custom Act. A question arose as whether a Custom Officer is a police officer. Their Lordships after examining various provisions which confer powers on the Custom Officer, held that he is not a Police Officer and that a Custom Officer can only make a complaint Romesh Chandra Mehta Vs. State of West Bengal, is yet another case which arose under the Sea Custom Act. A question arose whether confession made to a Custom Officer is inadmissible, as the same should be deemed to have been made to a Police Officer. Their Lordships held that Custom Officer is not a Police Officer. The scope of Article 20(3) of the Constitution was also considered and as to when a person become an accused for purpose of Article 20(3) is also discussed. It is held therein that "in order that guarantee against testimonial compulsion incorporated in Article 20(3) may be claimed by a person it has to be established that when he made the statement sought to be tendered in evidence against him he was a person accused of an offence, Normally a person stands in the character of an accused when a First Information Report is lodged against him in respect of an offence before a Magistrate competent to try or send to another Magistrate for trying for send to another Magistrate for trying the offence, where a Custom Officer arrests a person and informs that person of the grounds of his arrest which he is bound to do under Article 22(1) of the Constitution for the purpose of holding an enquiry into the infringement of the provisions of the Sea Customs Act which he has reason to believe has taken place there is no formal accusation of an Offence."

There are two other similarly important cases arising under the Railway Property (Unlawful Possession) Act itself. In Balukishan A. Devidaval Vs. The State of Maharashtra, a Division Bench of the Bombay High Court considered the scope of Section 9 of the Act. That was a case where the accused was found to be in unlawful possession of railway property. Enquiry was conducted followed by an investigation into other offences like forgery and an officer empowered u/s 9 of the Act, summoned several persons to tell the truth. It was contended that the officer under the Act exercised all the powers of a police officer and therefore, any inculpating statement made to him was inadmissible. This contention was repelled. The Division Bench also further considered whether they are entitled to the protection guaranteed under Article 20(3) of the Constitution and that unless complaint is filed against them and a case is registered in the Court, those persons cannot be deemed to have become accused. The aggrieved accused persons carried the matter in appeal to the supreme Court and the Supreme court in Balkishan A. Devidayal Vs. State of Maharashtra, , affirmed the view taken by the Bombay High Court. One of the question considered by their Lordships is whether a person arrested by an officer of the Railway Protection Force u/s 6 of the Act for the alleged commission of an offence u/s 3 of the Act is a person accused of an offence within the meaning of Art 20(3) of the Constitution. So far as the question whether an Officer of the Railway Protection Force is a Police Officer or not is concerned their Lordships also relied upon the earlier decisions in Badaku joti case (1966 Cri LJ 13530; The State of Punjab Vs. Barkat Ram, , Ramesh Chandra''s Case (1970 Cri LJ 863) (SC) and State of U.P. Vs. Durga Prasad, . In the last case it is clearly laid down that an enquiry u/s 8 of the Act does not amount to an investigation u/s 162 Cr.P.C. In that case their Lordships further observed that statement made during the enquiry u/s 8(1) of the Act, are not on par with the statement made during the course of the investigation. Coming to Section 9 of the Act The Lordships have affirmed that an enquiry under this provision is a judicial proceeding. With regard to the nature of enquiry u/s 8 it is held that an officer conducting enquiry u/s 8 does not posses al the power of an enquiry. It is also observed that on the completion of the enquiry u/s 8(1) if the officer is of the opinion that there is sufficient evidence the only course left open for him is to file a complaint under S. 190(1)(a) of the Code of Criminal Procedure in order that the Magistrate concerned may take cognizance of the offence. Thus, their Lordships of the Supreme Court in Balkishan A. Devidayal Vs. State of Maharashtra, while affirming the view taken in earlier cases also affirmed the view taken by the Bombay High Court their Lordship also observed.

"The only made of initiating prosecution of the person against whom he has successfully completed the enquiry, available to an officer of the R.P.F. is by making a complaint u/s 190(1)(a) of the Code to the Magistrate empowered to try the Offence."

Their Lordship however, referred to Ramanlal Bhogilal Shah and Another Vs. D.K. Guha and Others, wherein the accused was arrested u/s 19-B on the Foreign Exchange Act. In that case, a question arose whether after the grounds were served on the petitioner as provided under the provisions of the said Act, could it be said that the person accused of an offence within the meaning of Article 20(3) of the Constitution. Having regard to the facts and circumstances in Bhogilal''s case (Supra) their Lordships of the Supreme Court held thus :

"the person therein definitely a person accused of an offence within the meaning of Article 20(3) of the Constitution"

Thereafter, while summing up the principles they have considered the decisions of the Bombay High Court. In Balukishan A. Devidaval Vs. The State of Maharashtra, Mad held :

"..... Only a person against whom a formal accusation of the commission of an offence has been made can be a person accused of an offence within the meaning of Article 20(3). Such formal accusation may be specifically made against him in an F.I.R. or a formal complaint or any other formal document or notice served on that person which ordinarily results in his prosecution in court ......."

In the instant case, there is no such FIR registered against the accused by the police. I have already held that merely because Railway Protection Force have made some entries in their records that does not mean FIR as contemplated by Chapter 12 of the Cr.P.C. is filed. The complaint also was not filed by the time these persons were asked to appear produce documents and tell the truth as required u/s 9 of the Act. The earned counsel however, relies upon the above last observation of the Supreme Court viz., "any other formal Document of notice served on that person". Their Lordships made that observation having regard to the ratio laid down that In Bhogilal''s case which arose under the Foreign Exchange Act, wherein the provisions made it obligatory that notice should be served on the person called upon to give necessary information and which ordinary results in his prosecution. In the instant case, the enquiry u/s 8 of the arrest of the person cannot be said to result ordinarily in his prosecution. In State of U.P. Vs. Durga Prasad, it is clearly laid down :

"The officer conducting an enquiry u/s 8(1) cannot initiate court proceedings by filing a police report as it evident from the two proviso to S. 8(2) of the Act. Under proviso (a) if the officer of the Force is the opinion that there is sufficient evidence or reasonable ground of suspicion against the accused, he shall either admit the accused to bail to appear before a Magistrate having jurisdiction in the case or forwarded him in custody to such Magistrate. Under Proviso (b) if it appears to the officer reasonable ground of suspicion against the accused he shall release him on a bond to appear before the Magistrate having jurisdiction and shall make a full report of all the particulars of the case to his superior officer. The duty cast by Proviso (b) of an officer of the Force to make a full report to his official superior stands in sharp contrast with thee duty cast by Section 173(1)(a) of the Code on the submit a report to the Magistrate empowered to take cognizance of the offence. On the conclusion of an enquiry u/s 8(1) therefore, of an officer of the Force is of the opinion that there is sufficient evidence or reasonable ground of suspicion against u/s 190(1) of the Code in order that the Magistrate concerned may take cognizance of the offence."

This view was also confirmed by the Supreme Court in Balkishan A. Devidayal Vs. State of Maharashtra,

So from the above discussion emerges that in cases arising under the Act unless a complaint by the Railway Protection Force is filed in a court u/s 190(1)(a) of the Code of Criminal Procedure the concerned person who is directed to be present and give statement u/s 9 of the Act cannot be considered a person accused of an offence within the meaning of Article 20(3) of the Constitution. Accordingly the petitioners in all these Crl.M.Ps. cannot claim protection of Article 20(3) of the Constitution inasmuch as they have not attained the character of ''a person accused of an offence'' by that stage viz., when the enquiry in the main crime was being conducted these persons were summoned to produce summons and to give statement. Section 9 of the Act lays down that they have been obey the summons and state the truth. Section 9 of the Act lays down that they have to obey the summons and state of truth. Section 9(4) lays down that such an act shall be deemed to be judicial proceedings. Since these persons filed false documents or disobeyed the summons, they shall be deemed to have committed to those offences in a judicial proceedings and consequently they can be prosecuted for offence punishable u/s 174 175 179 180 and 193 etc. IPC

In Criminal M.P. 35 of 1983 and Crl.M.P. 2947 of 1982 the learned counsel submits that even if the allegation contained the complaint are taken to be true offences punishable u/s 180 and 175 IPC, are not make out. It is rather premature to decide this question. If there is no material in support of the prosecution so far as these offences are concerned, it is for the trail court to decide the same.

In the result all the Crl.M.Ps. are dismissed.

Petition dismissed.