Fulena Singh etc. vs The State of Bihar

Harilal Agrawal and P.S. Sahay, JJ.—By this application u/s 482 of the Code of Criminal Procedure, 1973 all the seven petitioners & challenge the legality of the order dated 21.11.74, passed by the Sub-divisional Judicial Magistrate, Sahibganj taking cognizance against them under various sections of the Indian Penal Code On the ground that the conditions imposed u/s 20 (sic) of the Railway Protection Force Act, 1957 (No. 23 of 1957) hereinafter referred to as ''the Act'' were not complied with. All the seven petitioners are members of the Railway Protection Force of different ranks.

The case of the petitioners is that on 16.8.1974 at about 7.30 P.M. petitioners Nos. 3 to 5 were on duty at Sakarigali Junction Railway Station under the jurisdiction of Sahibganj. They saw a number of persons in the verandah of the Railway station and asked them to leave the railway compound. Thereafter they went on to their duty in the yard. It is alleged that about 10 to 15 persons suddenly appeared at that place and assaulted the said petitioners by fists and slaps. They could recognise only Gopi Krishna Sharma and three others. Petitioner No. 3 on receiving the injuries became senseless, and was carried to the office of the Assistant Station Master. When he regained his sense, he found that some of his belongings including his identity card, (a certificate granted u/s 7 of the Act) were stolen away by the miscreants. A case was registered with the Sahibganj Government Railway Police on the report of petitioner No. 3 of the said occurrence, as Sahibganj case No. 5 (8) 74 under Sections 147, 323 and 379 of the Indian Penal Code and Section 121 of the Indian Railway Act. It is said that on the next day when petitioner No. 3 got down at Sahibganj station, he saw Gopi Krishna Sharma aforesaid. He was arrested by him with the help of others and was handed over to the railway police.

Gopi Krishna Sharma was released on ball on 19.8.1974 and thereupon he filed a petition of complaint in the court of the Chief Judicial Magistrate, Sahibganj on 22.8.74 under various sections of the Indian Penal Code namely 143, 147, 323 and 342 against the petitioners. According to the allegations made in the petition of complaint the complainant had gone to Sahibganj Railway station to catch the Burdwan local down train for going to Sakarigali at about 6 A.M. on on 17.8.1974 and while he was going to enter a compartment, all the petitioners came to him in a body and three of them namely, petitioner Nos. 4, 6 and 7 caught hold of him and the remaining petitioners started assaulting him with fists and slaps and then dragged him to the R.P.F. office and locked him inside the Hazat without and justification.

On receipt of the petition of complaint the learned Magistrate examined some of the witnesses named in the petition of complaint besides examining the complainant on solemn affirmation, on different dates and then passed the impugned order. In the meantime charge sheet was already submitted by the Railway Police in the case instituted by petitioner No. 3 as already noticed under Sections 147, 379, 323 Indian Penal Code and u/s 121 of the Indian Railway Act. These are all the relevant facts. The petitioners challenged this order on the ground that the provisions of Section 20 of the Act applied to this ease and the criminal prosecution was launched without complying with the requirement of this provision namely;

(i) no notice in writing of the initiation of the criminal proceeding in question was given either to the petitioners or to their superior officer, "at least one month before the commencement of such proceeding." and (ii) the prosecution was launched within a period of three months of the act complained of by the complainant.

In order to appreciate this argument it would be necessary to extract the relevant provisions of Section 20 itself.

20(i) In any suit or proceeding against any superior officer or member of the Force for any act done by him in the discharge of his duties, it shall be lawful for him to plead that such act was done by him under the orders of a competent authority.

(2)......

(3) Notwithstanding anything contained in any other law for the time being in force,'' any legal proceeding, whether civil or criminal, which may lawfully be brought against any superior officer or member of the Force for anything done or intended to be done under the powers conferred by, or in pursuance of, any provisions of this Act or the rules thereunder shall be commenced within three months after the act complained of shall have been committed and not otherwise, and notice in writing of such proceeding and of the cause thereof shall be given to the person concerned and his superior officer at least one month before the commencement of such proceeding.

From the scheme of the above provisions it is manifest that a protection has been provided to the officers and the members of the Force against any legal proceeding, either civil or criminal without giving one month''s prior notice and within a period of three months from the date of the act complained of. This protection however, is not absolute and has been confined with respect to any act done in discharge of the duties and "for anything done or intended to be done under the powers conferred by, or in pursuance of any provision of this Act or the rules thereunder�. It has, therefore, to be seen as to whether the arrest of Gopi Krishna Sharma, which is the ground for filing the petition of complaint by the complainant was an act done by the petitioners in discharge of their duties or under exercise of the powers conferred upon them by or in pursuance of any provision of this Act.

The above discussions take us to examine certain other provisions of this Act. The relevant provisions in this regard would be Sections 11 and 12. Section 11 prescribes the duties of the members of the Force, one of the duties being to protect and, safe-guard railway properties and the other to do any other act conducive to the better protection and security of railway property. The arrest of Gopi Krishna Sharma obviously cannot fall within any one of the above duties of the petitioner as he was arrested not for the, purposes mentioned u/s 11 Section 12 empowers the officers and members of the Force to arrest without warrant (a) any person who has been concerned in an offence relating to railway property punishable with imprisonment for a term exceeding six months, or against whom a reasonable suspicion exists of his having been so concerned. The petitioners rely upon this provision on the ground that the arrest of the complainant was made by them as he was concerned in the occurrence (as reported) relating to railway property namely, the Certificate issued to petitioner No. 3 u/s 20 of the Act.

Learned counsel for the petitioners contended before us that the arrest of the complainant Gopi Krishna Sharma was made by the petitioners as he was concerned in an offence relating to the theft of a railway property namely, the certificate issued to petitioner No. 3 u/s 7 of the Act and therefore, the act of arrest by the petitioner was in discharge of their duties and within the powers conferred on them by the above provisions and therefore, the petition of complaint could not be filed contrary to the provisions of Section 20(3) of the Act.

The contention as an abstract proposition of law cannot be disputed and in fact was not disputed by the learned counsel for the State. The argument on behalf of the State however, was that the arrest of the complainant by the petitioners could not be said to be within the four corners of Section, 12 as the complainant was not concerned in any offence relating to railway property. In other words the argument was that the certificate alleged to be stolen by the complainant was not a railway property within the meaning of the Act and therefore, it was not necessary for the complainant to follow the provisions of Section 20 of the Act.

In order to appreciate the argument it has to be seen as to what would be the scope of the expression �railway property�. Railway property has been defined in the Act in Section 2(e) and reads as follows:--

�Railway property" includes any goods, money or valuable security, or animal, belonging to, or in the charge or possession of, a railway administration.

This would certainly cover property which is owned by the railway as well as property entrusted to it for carriage. This Act was brought on the statute book for Setter protection and security of the railway property and it provided for the constitution and regulation of the Force called the Railway Protection Force, vesting them with special powers as also conferring upon them certain privileges with respect to legal proceedings. Can it therefore, be said that the certificate granted to petitioner No. 3 would be a "railway property."

The certificate is issued in a prescribed form under the seal of the Chief Security Officer or other specified officers in this behalf to every member of the Force u/s 7 of the Act, by virtue of which the person holding such certificate shall be vested with powers of a member of the force." This certificate ceases to have effect whenever its holder ceases to be a member of the Force and then it has to be surrendered to its superior officers. It is on this aspect of the matter that it has been contended that it is a railway property because he railway administration has a dominion over it. In oar view it U not possible to accept the argument. The whole purpose of granting a certificate is, to vest the member of the Force concerned with the powers of the Force. In other words it confers authority on the named person to exercise the powers under the Act and nothing else. As would appear from the preamble of the Act itself, it was enacted "for the better protection and security of the railway property, "like goods, money, valuable security, or animal etc., in charge of or in possession of the railway administration. The certificate in question cannot be said to be a railway property within any of the extended meanings given to ''property'' under the Act as the expression "Railway property� has been used in an entirely different context. The word ''"property" as defined in Wharton''s Law Lexicon (fourteenth Edition) means ''''the highest right a man can have to anything, being used for that right which one has to lands or tenements, goods or chattels, which does not depend on another''s courtesy.

Property is of three sorts: absolute qualified and possessory.''''

In order to constitute a thing into a property there must be a definite interest in the same.

According to Halsbury''s Laws of England, Third Edition Volume 33, "property" means:--

Property is that which belongs to a person exclusively - or others, and can be the subject of bargain and sale. It includes goodwill, trade marks, licences to use a patent, book debts, options to purchase, life policies, and other rights under a contract...

According to our Constitution this word ''property'' in Article 19(1)(f) includes all those recognised types of interest which have the Ingredients or characteristic of proprietary rights, capable of being acquired, held and disposed of.

Therefore, if we examine the certificate in question in this context it would be not possible to hold that it can be said to be a railway property, its sole purpose being to clothe the persons concerned with certain powers. It does not partake any of the ingredients or characteristics of ''property''. Simply because it has to be surrendered on the certificate holder ceasing to be a member of the Force, in our opinion would hardly be a fact of any consequence. Once this view is taken with respect to the certificate then the complainant was not concerned in any offence relating to railway property and therefore, his arrest could not be said to have been made for the purpose mentioned u/s 12 of the Act. The argument of the learned counsel for the petitioners that the cognizance of the offence taken by the Magistrate when the requirement of Section 20(3) was not complied with has got no force. We, therefore, do not find and infirmity in the impugned order taking cognizance against the petitioners and would accordingly hold that this application has no merit and it must fail. The application is accordingly dismissed.