MATAMESWARA RAO Vs. STATE

JUDGEMENT

(1.) This is an application made by the accused in C. C. No. 1295 of 1954 on the file of the Stationary Sub Magistrate's Court, Vijayawada under Sec. tion 561-A of the Criminal Procedure Code to quash the proceedings in the case. The accused stands charged under Sec. 419 of the Indian Penal Code before the Stationary Sub Magistrate. The case against him is that on the 9th of August, 1954 he was found in a railway compartment at the Vijayawada railway station and on being asked by the ticket collector for his ticket, he produced a season ticket issued in the name of Mr. G. H. Bhatia and that he pretended to be Mr. Bhatia.

(2.) The petitioner himself has argued the case in person and he has raised several technical objections to the legality of the prosecution and I shall consider them seria tim. The first contention is stated as follows : The proceedings were instituted in the first instance by a complaint being presented by the prosecuting Ticket Examiner, Vijayawada to the Honorary Railway I Class Magistrate, Vijayawada. The Magistrate considered that the case being one of attempting to cheat the railway by knowingly using a season ticket issued to a different person, he had no power to try the case and directed that the charge-sheet be returned to the complainant for being presented before the Stationary Sub Magistrate haying jurisdiction, The charge-sheet was thereupon presented to the Stationary Sub Magnate, Vijayawada and without the examination of the complianant upon oath, summons was issued to the accused for his attendance, in which it was stated that he was to answer to a charge on an offence under Sections 112, (b) and. 114 of the Indian RAILWAYS ACT, 1989. The petitioner contends that the charge since framed under Sec. 419 of the Indian Penal Code is not sustainable because the summons originally issued to him referred only to offences under the aforementioned sections of the Indian RAILWAYS ACT, 1989.

(3.) It is also urged that by virtue of the combined operation of Sec. 21 of the Indian Penal Code and Sec. 137 clause (4) of the Indian RAILWAYS ACT, 1989, a ticket collector is not a public servant within the meaning of Sec. 206 clause (aa) of the Criminal Procedure Code and that therefore the Magistrate should have at once examined the complainant on oath and that the failure so to examine the complainant is fatal to the jurisdiction of the Magistrate. I cannot accept either of these contentions. It is not argued that the facty stated in the complaint do not make out a case under Sec. 419 Indian Penal Code. That being so, the wrong mention in the summons of the sections of the Indian RAILWAYS ACT, 1989 is an irregularity which does not affect the validity of the charge whieh has since been framed against the accused after the examination of witnesses for the prosecution. I do not also agree that the persecuting Ticket Examiner is not a public servant within the meaning of Sec. 21 of the Indian Penal Code. It is true that Sec. 137 of the Indian Ralways Act enacts that notwithstanding anything in Section 21 of the Indian Penal Code, a railway servant shall not be deemed to be a public servant for any of the purposes of that Code except for the purposes of Chapter IX of that code: The Criminal Procedure Code itself does not define a public servant; but sub-section (2) of Sec. 4 thereof says that "all words and expressions used herein and defined in the Indian Penal Code, and not herein-before defined, shall be deemed to have the meanings respectively attributed to them by that Code". The effect of this provision is to make Section 21 Indian Penal Code part of the Criminal Procedure Code and the phrase " public Servant" whenever it occurs in the latter Code has to be construed according to that definition. So construed, there is no -doubt that since the railways have become the property of the Union, every railway servant is an officer in the service or pay of the Government within the meaning of the ninth clause of Sec. 21 of the Indian Penal Code and is therefore a 'public servant"; sub-section (4) of Sec. 137 of the Indian RAILWAYS ACT, 1989 only debars the treatment of such a person as a public servant for thfe purposes of the Indian Penal Code. It says nothing about the operation of that definition for the purposes of the Criminal Procedure Code. Therefore, I think that the charge-sheet must be treated as bating been properly filed by a public servant and that under Sec. 200 of the Criminal Procedure Code, the Magistrate could take action without examining the complainant on oath. The complaint was therefore, in my opinion properly entertained by the Stationary Sub Magistrate, Vijayawada. In any case, the mere fact that the complainant was not examined on oath at once does not, it is well-settled, vitiate the proceedings. It is only an irregularity curable by the provisions of section 537 of the Criminal Procedure Code. I therefore reject these two contentions.