R. Muthu vs Assistant Sub-inspector, R.P.F., Erode

This is a petition u/s 482, Criminal P.C. by the accused for quashing the proceedings against, him in C.C. No. 948 of 1982 on the file of the

Sub-Divisional Judicial Magistrate Sankari.

The respondent namely Assistant Sub-Inspector. Railway Protection Force, Erode, filed a complaint against the petitioner alleging that on 26-7-

1982 at about 2 p.m. he found the petitioner carrying a gunny bag which on search found to contain two railway dynamo belts. Therefore,

prosecution was launched for an offence u/s 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the ''Act'').

The petitioner (accused) has filed this petition for quashing the prosecution raising various contentions.

Firstly, it is contended that the Assistant Sub-Inspector, R.P.F. has no power to investigate the case and only the regular police who can initiate,

investigate and file the report into Court. This argument is not tenable in law in view of the provisions of Section 8(1) of the Act which enables him

to inquire into the charge against the person. Section 8(2) further recites that the officer of the Force may exercise the same powers as the officer-

in-charge of the police station and is subject to the provisions of the Cr.P.C. when investigating a cognizable case.

It was next argued that the offence in this case is not a cognizable one as laid down in Section 5 of the Act. It is further argued that the police in

a non-cognisable offence cannot investigate without the prior approval of the Magistrate u/s 155(2) Cr.P.C. Here again, the argument is not sound

in law. An officer of the Railway Protection Force is not a police office and therefore Section 155, Cr.P.C. is not applicable (vide State of U.P. v.

Durga Prasad, AIR 1974.

Thirdly, learned counsel for the petitioner argued that the trial in this case is without the sanction of the Magistrate, and since no sanction has

been obtained the prosecution is discriminatory under Art. 14 of the Constitution of India. I do not agree. The case has been taken cognizance of

by the Magistrate on a complaint by the Assistant Sub-Inspector, R.P.F. and not on a police report, u/s 173, Cr.P.C. the inquiry by the Assistant

Sub-Inspector is not investigation under the Cr.P.C. This Act, viz. Railway Property (Unlawful Possession) Act, 1966 is a special Act. It creates

an offence and prescribes a special procedure for inquiry and prosecution. Therefore, Art. 14 of the Constitution is not attracted in this case (vide

Rehman Shagoo and Others Vs. State of Jammu and Kashmir, .

Learned counsel for the petitioner then argued that u/s 8(1) of the Act only an officer of the Force can inquire into the offence. In other words. It

is stated that an officer above the rank of Assistant Sub-Inspector should conduct the inquiry. Here again the argument has no force Section 2(c)

of the Act defines an ""officer of the Force"" as ''Officer of an above the rank of Assistant Sub-Inspector appointed to the Force and includes a

superior officer.'' As such, the respondent is fully competent to inquire into the case. The report in this case is only a complaint and the court having

validly taken cognizance of the case it is not open to the petitioner to challenge the legality of the proceedings on the ground of any infirmity in the

investigation. It is well-settled that any irregularity in investigation does not vitiate the trial. Further, there is no infirmity in the investigation of the

case by the Assistant Sub-Inspector. R.P.F. and therefore, the prosecution is valid. All the grounds raised in the petition are rejected and this

petition is dismissed. The trial court will proceed with the enquiry. (The stay granted in Cri M. P. 4712 of 1982 is vacated).

Petition dismissed.