UMESHBHAI MAHESHBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned advocate Mr. D.V. Shah for the applicant and learned advocate Ms. Archana U. Amin for the respondent No.2 and learned APP Mr. Mehta for respondent No.1 State.

(2.) The applicant herein is facing charges u/s.143(1) (a) of the Railways Act, 1989 ('Act', for short) when he was black-marketing the railway tickets of different trains bearing value of Rs.35, 869/-. When applicant was found with such different tickets of different trains booked by him online in different names, after investigation, the chargesheet was filed against him before the J.M.F.C. Court at Bhavnagar and Criminal Case No.6476 of 2016 has been initiated pursuant to R.P.F. Terminus Police Station, Bhavnagar No.1199 of 2016. In such criminal case, applicant has, on 16.3.2017, filed an application at Exh.6 praying to discharge him from the charges levelled against him on different grounds, including one of the major ground that Railway Police Force (RPF) cannot file a chargesheet against him. By impugned order dated 25.5.2017, J.M.F.C. (Railways) , Bhavnagar has dismissed such application, which is under challenge in this revision application.

(3.) The sum and substance of the applicant'case is to the effect that the RPF is not empowered to prosecute the applicant since RPF has no powers to file chargesheet. In support of such submission, learned advocate Mr. Shah is relying upon a judgment dated 16.9.2014 between Sharad Gupta Vs. Union of India in Criminal Revision Application No.37 of 2004 by Single Judge of Chattisgarh High Court, wherein relying upon the provision of Section 8 of the Railway Property (Unlawful Possession) Act, 1966 and relying upon the decision in the case of State of UP vs. Durga Prasad, (1974) AIR(Supreme Court) 2136 it was held that the officer of the RPF is a railway servant within the meaning of the Section 34 of the Act and has not been conferred with all the powers of officer incharge of police station making an investigation under Chapter XIV of the Criminal Procedure Code and has no power to initiate prosecution by filing a chargesheet for offence punishable u/s.143 of the Act though he initiated prosecution by filing criminal complaint. However, reading of such judgment and relevant provisions makes it clear that it is with reference to offence committed under Railway Property (Unlawful Possession) Act, 1966 and not for the offence committed u/s.143 of the Act. Whereas, in the present case, the complainant has initiated complaint and acted as per authorisation conferred upon him u/s.180D of the Act and therefore, when originally offence is not under the Railway Property (Unlawful Possession) Act, 1966, but it is for black-marketing the railway tickets and thereby, under common law, the trial Court has rightly held that the application of the applicant is premature and there is no reason to discharge the applicant. The perusal of statute makes it clear that there is no bar for investigation and prosecution of applicant for black-marketing railway tickets, though such bar is available for the offences, if any committed under the Railway Property (Unlawful Possession) Act, 1966. Reading of Section 143 of the Act makes it clear that applicant is facing charge u/s.143 and not under the Railway Property (Unlawful Possession) Act, 1966; whereas, reading of Section 180D of the Railways Act, makes it clear that when any person is arrested for an offence punishable under the Act, such officer shall proceed to inquire into the charge against such person, and for the purpose, the officer authorised may exercise the same powers and shall be subject to the same provisions as the officer incharge of a police station may exercise and it is subject to provisions of the Criminal Procedure Code, 1973 when investigating a cognizable case. Therefore, when Section 180D of the Act specifically empowers the court to proceed further and to prosecute the applicant. Thus, there is difference of provision between the Railways Act, 1989 and the Railway Property (Unlawful Possession) Act, 1966. Therefore, even if under the Railway Property (Unlawful Possession) Act, 1966, there is a bar to proceed further by the officer of the RPF, when such bar is not available under the Railways Act, 1989 and when offences are only under the Act, the decisions relied upon by the applicant, are not much material.