The
State of Bihar Vs. Chandra Bhushan Singh & Ors
[2000] INSC 655 (13 December 2000)
Appeal (crl.) 1112 2000
K.T.Thomas,
R.P.Sethi
L.I.T.J
SETHI,J.
Leave
granted. Respondents, who are the employees of the Railways, were caught red
handed on 25.3.1987 while carrying away Railway Cement unlawfully for sale.
Upon inquiry offences under The Railways Property (Unlawful Possession) Act,
1966 (hereinafter referred to as "the Act") were held proved against
the accused persons. Inquiry Report (Complaint) under the Act was filed by M.I.
Khan, Inspector, RPF, Samstipur, against the accused persons in the court of
Judicial Magistrate, First Class, Smastipur.
The
accused persons filed applications before the Magistrate praying for their
discharge on the ground that Sub-Inspector of Railway Protection Force, who
submitted charge-sheet against them was not a "police officer" within
the meaning of Section 173 of the Code of Criminal Procedure (hereinafter referred
to as "the Code") and upon his report submitted in the court, the
Magistrate had no jurisdiction to take cognizance. Their prayer was rejected by
the Magistrate against which they filed petitions in the High Court for
quashing the order of the Magistrate. The High Court allowed the petitions of
the respondents-accused and quashed the proceedings pending against them before
the Railway Magistrate, vide the order impugned in these appeals. We have heard
the learned counsel appearing for the parties and perused the record and
relevant provisions of the Act besides the Code. Mr.P.S. Misra, the learned Sr.Advocate
appearing for the respondents has frankly conceded that the order of the High
Court impugned in these appeals cannot be justified. He has, however, prayed that
as the respondents-accused had raised various other contentions for quashing of
the proceedings before the Magistrate, this Court may consider desirability of
adjudicating such pleas or remand the case back to the High Court for decision
on the points raised but not decided.
Section
3 of the Act provides the penalty for unlawful possession of railway property.
Section 6 authorises a superior officer or member of the Force to arrest any
person who has been concerned in an offence punishable under the Act or against
whom a reasonable suspicion exists of his having been so concerned without an
order from the Magistrate and without a warrant. Section 7 provides that every
person arrested under the Act, shall, if the arrest is made by a person other
than the officer of the Force, to forward such person, without delay to the
nearest officer of the Force. Section 8 of the Act provides: "Inquiry how
to be made against arrested persons-- (1) When any such person is arrested by
an officer of the Force for an offence punishable under this Act or is
forwarded to him under section 7, he shall proceed to inquire into the charge
against such persons.
(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, 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 no sufficient evidence or
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 the
particulars of the case to his official superior." In this case, after
seizure of the Railway property and interrogation of the accused, Case Crime
No.14/87 under Section 3 of the Act was registered. As per statement of accused
Baleshwar Singh further recovery of 136 bags of cement in addition to the
cement already seized, was effected. Shri MI. Khan, IPF/SPJ inquired the case
and submitted the complaint before the Magistrate. Copy of the complaint has
been annexed with this appeal as Annexure P-3.
A
perusal of Annexure P-3 unambiguously indicates that it was not a report within
the meaning of Section 173 of the Code but a complaint filed before the
Magistrate, obviously under Section 200 of the Code. The process against the
accused appears to have been issued under Section 204 of the Code. By no
stretch of imagination, Exhibit P-3 can be termed to be a report within the
meaning of Section 173 of the Code. Merely because the inquiry was held by a
member of the Force having some similar powers as are possessed by an
investigating officer, would not make the complaint to be a report within the
meaning of Section 173 of the Code.
Section
2(d) of the Code defines the complaint to mean any allegation made orally or in
writing to a Magistrate, with a view to his taking action under the Code, that
some person, whether known or unknown, has committed an offence but does not
include a police report. Explanation to clause (d) to Section 2 of the Code
provides: "Explanation-- A report made a police officer in a case which
discloses, after investigation, the commission of a non-cognizable office shall
be deemed to be a complaint; and the police officer by whom such report is made
shall be deemed to be the complainant." Section 2(d) of the Code emcompasses
a police report also as a deemed complaint if the matter is investigated by a
police officer regarding the case involving commission of a non-cognizable
offence. In such a case, the report submitted by a police officer cannot be
held to be without jurisdiction merely because proceedings were instituted by
the police officer after investigation, when he had no power to investigate.
For quashing the proceedings, the High Court relied upon the judgment of this
Court in Balkishan A.
Devidayal,
etc. v. State of Maharashtra, etc. [1981 (1) SCR 175]. The
reliance appears to be misconceived. In that case the court, while interpreting
the provisions of Section 25 of the Evidence Act held, "an officer of the
RPF could not, therefore, be deemed to be a 'police officer' within the meaning
of Section 25 of the Evidence Act and, therefore, any confessional or
incriminating statement recorded by him in the course of an inquiry under
Section 8(1) of the 1966 Act cannot be excluded from evidence under the said
section". As noted earlier by us, this Court in Balkishan's case also
observed that an officer conducting an inquiry under Section 8(1) of the Act
has not been invested with all powers of an officer incharge of a police
station making an investigation under Chapter XIV of the Code. He has no power
to file a charge sheet before the Magistrate concerned under Section 173 of the
Code. The main purpose of the Act was to invest powers of investigation and
prosecution of an offence relating to Railway property in the RPF in the same
manner as in a case relating to the offences under the law dealing with excise
and customs. The offences under the Act are non-cognizable which cannot be
investigated by a police officer under the Code. The result is that initiation
of inquiry for an offence inquired into under this Act can be only on the basis
of a complaint by an officer of the Force, as was actually done in this case.
To the same effect is the judgment of this Court in Criminal Appeal No.512-515
of 1997 decided on 2.5.1997 (State of Bihar and Ors. v. Ganesh Chaudhry & Ors.). Mr.Misra, the learned Senior
counsel vehemently argued that the case be remanded back to the High Court for
adjudication of other grounds on the basis of which the proceedings were sought
to be quashed. He pointedly referred to the averments made in para 27 of the
petition filed in the High Court to urge that as the trial of the case was
pending against the accused for over a period of 5 years, the proceedings
against them are liable to be quashed under a notification allegedly issued by
the State Government. Learned counsel has neither shown us the notification nor
the authority of law under which such notification could have been issued by
the State Government. He also tried to emphasise that even on admitted facts no
case under Section 3 of the Act was made out against the accused and that the
proceedings initiated against his clients were otherwise not sustainable. We
are of the opinion that such pleas cannot be raised before us at this stage and
the case cannot be remanded back to the High Court in view of the fact that the
proceedings against the respondents appear to have been sufficiently prolonged
on one pretext or the other for over a period of 13 years. We are, however, of
the opinion that the respondents have a statutory right to raise all such pleas
as are available to them under the law during the trial before the Magistrate.
All
such pleas, when raised, can appropriately be considered and disposed of by the
trial court. In view of what has been stated hereinabove, these appeals are
allowed by setting aside the order of the High Court and upholding the order of
the Magistrate refusing to discharge the respondents in the complaint pending
before him. The Magistrate is further directed to expedite the trial.
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