Mukna Ram and Others vs The State and Another

Amaresh Kumar Singh, J.—Heard the learned counsel for the petitioners learned P.P. for the State arid perused the original record of 916/88 State v. Mukna Ram and Ors. pending in the court of Railway Magistrate Jodhpur.

By this petition u/s 482, Cr.P.C. it is prayed that the order dated 6-12-1988 passed by the Railway Magistrate, Jodhpur be quashed.

The facts necessary for disposal of this petition may be summarised as below :

According to the prosecution 17 bags of Bajra were stolen from the Railway Station Marwar Lohawat. After enquiry conducted under the Railway Property (Unlawful Possession) Act, 1966 a complaint was filed by the Company Commander of Railway Protection Force in the Court of Judicial Magistrate Railways, Jodhpur against-five persons namely Mukna Ram, Magram, Mohan Ram, Babu Ram and Hari Ram, alleging the commission of the offence punishable u/s 3 of Railway Property (Unlawful Possession) Act, 1966.

On the basis of that complaint learned Judicial Magistrate Railways took cognizance on 4-11-1981 of the offence u/s 3 of the Railway Property (Unlawful Possession) Act, 1966 and thus a case was instituted in his Court against the above named accused persons.

On 12-8-1985 when the case was called for hearing, nobody appeared on behalf of the complainant and, therefore, the learned Judicial Magistrate Railways, Jodhpur discharged the accused persons in exercise of the powers confirmed on him u/s 242 of the Cr.P.C. The State did not file any revision petition against the order by which the accused persons were discharged. A fresh complaint on the same facts was again submitted in the Court of Judicial Magistrate Railways alleging the commission of offence under Sections of the Railway Property (Unlawful Possession) Act, 1966. On the basis of that complaint the learned Judicial Magistrate Railways took cognizance of offence again and directed the issue of process against the accused persons on 25-4-1988. The summons of the accused persons could not be served and on 6-12-1988 when the file was placed before the learned Judicial Magistrate he directed that bailable warrants of Rs. 1,0007- be issued against the accused petitioners.

Learned counsel for the petitioners has submitted that the order of discharge of the petitioners, passed u/s 249 of the Cr.P.C. was by a legal and valid order and so long that order was not set aside by the competent Court, the learned Judicial Magistrate Railways could not legally take cognizance of the offence again on the second complaint filed by the complainant. He has, therefore, submitted that the act of the learned Judicial Magistrate (Railways) in as much as he took cognizance of the offence again on the basis of second complaint amounts to abuse of process of Court and the proceedings initiated against the petitioners deserve to be quashed.

The learned Public Prosecutor has opposed this petition and supported the impugned order passed by the learned Judicial Magistrate Railways on the ground that the previous order of discharge purporting to have been passed u/s 249, Cr.P.C. could not be said to have been passed according to law. He has, therefore, prayed for dismissal of this petition.

I have carefully considered the arguments of learned counsel for the petitioners and the learned P.P. In Mohammad Safi Vs. The State of West Bengal, Hon''ble Supreme Court considered cases in which the provisions contained in Section 403(1) of the Cr.P.C. 1898 were applicable. The Hon''ble Supreme Court held that for the bar u/s 403(1) to operate, the accused must have been (a) tried by a Court, (b) which is of competent jurisdiction, and (c) acquitted of the offence alleged to have been committed by him or an offence with which he might have been charged u/s 236 or for which he might have been convicted u/s 237 of the Code. It was further observed by the Hon''ble Supreme Court that if the earlier order of acquittal was passed by a Court which had no jurisdiction then that order of acquittal would not attract the bar of Section 403(1) of Cr.P.C. 1898. In view of the law laid down by the Hon''ble Supreme Court the crucial question to be decided in this case is whether the order of discharge passed by the learned Judicial Magistrate Railways was in accordance with law.

Section 249 of the Cr.P.C. provides that when the proceedings have been instituted upon the complaint, and on any day fixed for the hearing of the case, the complainant is absent, and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything herein before contained at any time before the charge has been framed discharge the accused. A bare reading of Section 249, Cr.P.C. shows that in order the Magistrate may discharge the accused persons under this Section, following conditions must be satisfied (1) the case must be lawfully instituted in his Court and should be triable as a warrant case, (2) the case must be instituted upon a complaint (3) that on the date of hearing the complainant must be absent (4) the offence for which accused was to be tried must be either an offence compoundable according to law or a non-cognizable offence.

The offence u/s 3 of the Railway Property (Unlawful Possession) Act, 1966 is not a compoundable offence. But in view of Section 5 of the Act the offence must be regarded as non- cognizable offence. Section 3 of the Railway Property (Unlawful Possession) Act, 1966 provides these "an offence under the Act is not to be cognizable notwithstanding anything cotained in the Code of Criminal Procedure, 1898." Since the offence u/s of the Railway Property Act, 1966 is a non-cognizable offence. The provisions of Section 249 of Cr.P.C. were applicable to the case and the learned Judicial Magistrate Railways Jodhpur, had legal authority to discharge the accused persons when, the complainant did not appear on the date when the case was called for hearing. In this petition only legality of the order is to be seen; propriety of the order cannot be gone into because the State has not moved any petition to quash the order of discharge.

For the reasons mentioned above the order of discharge passed by the learned Judicial Magistrate Railways Jodhpur, in Criminal Case No. 233/83 State v. Mukna Ram and Ors. on 12-8-1985 must be regarded as legally valid order which has not-been set aside. In view of this circumstance the submission of the learned counsel for the petitioners that the learned Judicial Magistrate Railways, Jodhpur, was not justified in taking cognizance of offence again on the second complaint, appears to carry weight. It is true that the order of discharge u/s 249, Cr.P.C. cannot be regarded as an order of acquittal and it is also true that merely because the order is a judicial order, the order cannot be said to be final. There are many judicial orders which are passed during the investigation inquiry and trials and they are not deemed to be final. However, in the facts and circumstances of this case, it appears that the learned Judicial Magistrate was not justified in taking cognizance of the same offence on the basis of second complaint after the expiry of 2 years.

For the reasons mentioned above the petition deserves to be allowed and it is hereby allowed, The order dated 20-4-1988 by which the cognizance of offence was taken for the second complaint and the subsequent proceedings are hereby quashed. The proceedings against the accused petitioners are hereby dropped as they amount to abuse of process of the Court. The petition indisposed of accordingly.