Rama Shankar Prasad vs The State of Bihar

N. Pandey, J.—In these cases a common question has been raised for determination whether inquiry, which an officer of the Railway Protection Force holds u/s 8(1) of the Railway Property (Unlawful Possession) Act, 1966 (Act No. XXIX of 1966) (in short ''the Act''), is an investigation within the meaning of the Code of Criminal Procedure, 1973 (in short ''the Code''). A further question which requires consideration is whether on the basis of reports u/s 8(1) of the Act, the orders taking cognizance of the offence and consequent proceedings are vitiated.

All the Petitioners are facing trial for the offence u/s 3 of the Act. The allegation is that certain railway properties, reasonably suspected of having stolen or unlawfully obtained, were recevered from their possession by the members of the Railway Protection Force. Although with respect to the alleged offence, different cases have been instituted, since a common question is involved, for the sake of convenience, they are being disposed of by this order.

The case against accused Rama Shankar Prasad and Hare Krishna Prasad is pending before a Judicial Magistrate at Samastipur, whereas the cases of Petitioners Radhey Shyam Nigam and others as also to that of Shrawan Kumar Nigam and Ors. are pending at Khagaria.

Learned Counsel appearing on behalf of the Petitioners contended that an officer of Railway Protection Force, conducting an inquiry, has not been vested with the powers of an Officer Incharge of a Police Station, making an investigation under Chapter XII of the Code. Therefore, chargesheet submitted by such officers before the Magistrates can not be considered as a police report u/s 173 of the Code. In that view of the matter, order taking cognizance by a Magistrate considering such chargesheet as a police report is illegal and, therefore, the continuance of the proceedings are illegal and without jurisdiction.

Mr. Das in support of his contention placed reliance over a case of Supreme Court in the case of Bal Krishan A. Devidayal v. State of Maharashtra 1980 BBCJ (SC) 131. He also referred to certain orders, passed in different cases, quashing the prosecution started for the offences u/s 3 of the Act on the ground that an officer of the Railway Protection Force had no jurisdiction to investigate a case and submit chargesheet.

In these backgrounds, I would like to examine relevant provisions of the Act and the scope of inquiry conducted by an officer of the Railway Protection Force u/s 8(i) of the Act. Section 8 of the Act reads thus:

Enquiry 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 of is forwarded to him u/s 7, he shall proceed to enquire into the charge against such person.

(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 (5 of 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 not sufficient evidence of 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 particulars of the case to his official superior.

Section 2(a) defines "Force" for protection of railway property, as defined u/s 3 of the Act. Section 5 provides that notwithstanding anything contained in the Code, an offence under this Act should not be cognizable. Section 6 empowers an officer to arrest any person without an order from the Magistrate, who has been concerned in an offence punishable under the Act. Section 7 requires that every person arrested for an offence punishable under the Act, must be forwarded to the nearest officer of the Force.

Section 9(1) of the Act empowers an officer of the Force to summon any person, whose attendance is necessary to give evidence or to produce a document. By Section 9(4) every such inquiry is deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Penal Code. Section 14 provides that "the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force."

In the case of State of U.P. Vs. Durga Prasad, this question was concluded, holding that inquiry conducted by an officer of the Railway Protection Force u/s 8(1) of the Act, can not be deemed to be an investigation for the purposes of Section 162 of the Code The scheme of the Act is altogether different from the scheme of the Code. Therefore, the report submitted by an officer of the Force u/s 8(1) of the Act can not be considered a report u/s 173 of the Code.

In the case of Bal Krishan A. Devidayal (supra) it was held that an officer of Railway Protection Force making an inquiry u/s 8(1) of the Act can not, by any stretch of imagination, be called "an officer incharge of police station" within the meaning of Section 193 and 190(1)(b) of the Code. The mode of initiating prosecution by submitting a report u/s 173 read with Clause (b) of Section 190 of the Code is not available to an officer of Railway Protection Force, who has completed an inquiry under the Act.

It is in these backgrounds it was held that power to initiate prosecution by filing a chargesheet before the Magistrate u/s 173 of the Code was not available to an officer of Railway Protection Force.

In the case of Bal Krishan A. Devidayal (supra) it was further held that only mode for initiating prosecution of the offence available to an officer of the Railway Protection Force, is by making a complaint u/s 190(1)(a) of the Code to the Magistrate, empowered to try the offence.

Therefore, having regard to the facts, stated above, on such a technical question, raised by Mr. Das, the order taking cognizance can not be held illegal at this stage, because it would naturally result in miscarriage of justice.

I would like to mention, although an inquiry report u/s 8(1) of the Act can not be treated as a report u/s 173 of the Code, but a bare reference to Section 9(4) of the Act would reveal that such inquiry shall be deemed to be a judicial proceeding for the purposes of Sections 193 and 228 of the Penal Code. But the police investigation can not have a character of judicial proceeding for any purpose and a witness examined during such investigation can not be prosecuted u/s 193 of the Penal Code.

Therefore, having regard to the object and scope of an inquiry under the Act and the ratio laid down by the Supreme Court in the case of Bal Krishan A. Devidayal (supra), in my view, the order taking cognizance in these cases shall be treated on the basis of a complaint u/s 190(1)(a) of the Code. It has already been established that a Magistrate has ample jurisdiction to take cognizance on such report as per the provisions, laid down u/s 190(1)(a) of the Code. Therefore, the jurisdiction of the Magistrate in such circumstances can not be questioned.

But before parting with this order, I would like to draw attention of the authorities that to avoid such complications in future, any inquiry for such offence under the Act should be conducted strictly in terms of the provisions of Sections 8 and 9 of the Act.

For the reasons, stated above, I find no merit in these applications. Therefore, they are hereby dismissed.