PUBLIC PROSECUTOR Vs. KALAGANA KANAKA RAO

JUDGEMENT

(1.) On 15th March, 1967 at about 10-30 P.M., J. N. Satyanarayana, Sub-Inspector of the Railway Protection Force, P.W. 2, Detective Sub-Inspector of Railway Protection Force and other staff of the Railway Protection Force at Vijayanagaram were on their usual patrol rounds. They noticed the three respondents moving in suspicious circumstances in the Railway yard. They found the 1st respondent accused carrying a ball-bearing cover on his shoulder, the 2nd accused having three wrenches and the 3rd accused having two big wrenches. The Sub-Inspectors of the Railway Protection Force noticed that the dynamo of saloon No. 101 was without its ball-bearing cover. When questioned by P.W. 1 the 1st accused admitted that the ball-bearing cover had been removed from the dynamo of the saloon. The three respondents thereupon were taken to the Railway Protection Force Post, a First Information Report was prepared and the respondents along with the report were forwarded to the Railway Police Station, Vijayanagaram. P.W. 4, the Sub-Inspector of the Railway Police investigated into the case and filed a charge-sheet against all the three respondents for an offence under section 3 of the Railway Property (Unlawful Possession) Act, 1966. The learned First-class Magistrate who tried the case, though he appears to have been satisfied that A-l was in unlawful possession of the railway property, nevertheless acquitted all the accused on the ground that the police had no authority to investigate into offences against the provisions of the Railway Property (Unlawful Possession) Act, or to file charge-sheet in respect of such offences. The State hat, preferred this appeal against the order of the learned Magistrate acquitting the three respondents.

(2.) So far as accused 2 and 3 are concerned I may straightaway say that the wrenches seized from their possession have not been established to be railway property and they cannot, therefore, be convicted of any offence under the Railway Property (Unlawful Possession) Act. The evidence, however, is clear that the 1st accused was carrying on his right shoulder a ball-bearing cover of a dynamo and this ball bearing cover has been identified by P.W. 3, an Electrical Train Examiner as the one missing from the dynamo of Coach No. S.E. 101 RA. of DBK Railway. The cover also contains marks to show that it is railway property. The 1st respondent has no explanation to offer as to how he came to be in possession of the cover. He is, therefore, clearly guilty of an offtnce under section 3 of the Railway Property (Unlawful Possession) Act. Let me now examine whether the trial is vitiated by the fact that the police investigated into the case and filed the charge-sheet By the Railway Protection Force Act, 1957, a Special Force known as the Railway Protection Force was constituted "for the better protection and security of railway prioperty." The duties of every Superior officer and member of the Force are(a) promptly to execute all orders lawfully issued to him by his Superior authority; (b) to protect and safeguard railway property; (c) to remove any obstruction in the movement of railway property; and (d) to do any other act conducive to the better protection and security of railway property. The Members of the Force are clothed with the power to arrest without warrant peisons concerned or reasonably suspected to be concerned in offences relating to railway property punishable with imprisonment for a term exceeding six months and persons found taking precautions to conceal their presence within the railway limits under circumstances which afford reason to believe that they are doing so with a view to committing theft of, or damage to, railway property. Any Member of the Force making an arrest is diiected to make over, the arrested person without unnecessary delay, to a Police Officer, or to take the person to a Police Station. Thereafter, presumably, the usual investigation under the Criminal Procedure Code, by the police is to follow. It is evident from the Act that the Members of the Railway Protection Force are not Police Officers and that their primary function is the protection and security of railway property and not the investigation and detection of offences relating to railway property. While the Members of the Force are empowered to arrest without warrant, they are directed to forward the persons arrested to the nearest Police Station without unnecessary delay.

(3.) The Railway Property (Unlawful Possession) Act, 1966, has, however, made certain departures from the Railway Protection Force Act, and section 14 of the Act of 1966 enacts that its provisions shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 2 defines ' Force ' as meaning the Railway Protection Force constituted under the 1957 Act and an Officer of the Force as meaning an Officer of and above the rank of Assistant Sub-Inspector and including a superior officer. Sections 3 and 4 of the Act create new offences. Under section 3, any person who is found or is proved to have been in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained is liable to be punished unless he proves that the railway property came to his possession lawfully. Under section 4 persons conniving to commit offences against the provisions of the Act are made liable to punishment. Section 5 declares that an offence under the Act shall not be cognizable. Section 6 empowers any superior officer and any Member of the Force to arrest without a warrant any person who has been concerned in or against whom a reasonable suspicion exists of his having been concerned in an offence punishable under the Act. Section 7 provides that every person arrested by a person other then an Officer of the Force should be forwarded without delay to the nearest Office r of the Railway Protection Force. Section 8 prescribes an inquiiy by an Officer of the Force into the charge against a person arrested and for that purpose invests the officer with the same powers and subjects him to the same provisions as the officer-in-charge of a Police Station exercises and is subject to under the Code of Criminal Procedure, when investigating a cognizable case. Section 8 further provides that 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. In addition to the powers of an officer-in-charge of a Police Station investigating a cognizable case with which he is invested under section 7, an Officer of the Force is further empowered under section 9 of the Act to summon any person whose attendance he considers necessary either to give evidence or to produce a document. Section 9, sub-section (3), binds all persons so summoned to attend in the manner prescribed and to state the truth upon any subject respecting which they are examined. Sub-section (4) further declares that the inquiry by the Officer of the Force shall be deemed to be a ' judicial proceeding' within the meaning of sections 193 and 228 of the Indian Penal Code. These provisions emphasise that Officers of the Force can never be considered to be Police officers and that an enquiry by an Officer of the Force is not the same thing as an investigation by the police under the Code of Criminal Procedure. An investigation under Chapter XIV of the Criminal Procedure Code commences with a report under section 157. An enquiry under the Railway Property (Unlawful Possession) Act, commences with an arrest. A Police Officer investigating under Chapter XIV of the Criminal Procedure Code, can examine persons supposed to be acquainted with the facts and circumstances of the case and record their statements, such persons being bound to answer all questions put to them by the Police officer. Such statements may not be signed by the persons making them, nor be used for any purpose at any enquiry or trial in respect of any offence under investigation at that time except for the purpose of contradicting such persons in the manner provided by section 145 of the Indian Evidence Act, when such persons are examined as witnesses for the prosecution. In an enquiry under the Railway Property (Unlawful Possession) Act, however, the persons whose attendance is required by the Officer of the Force to give evidence are bound to state the truth upon any subject respecting which they are examined and the enquiry by the officer is deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code. A person making a statement to a Police Officer during the course of an investigation may even answer questions put to him untruthfully without fear of any penal consequence. But, a person making untruthful statements in an enquiry under the Railway Property (Unlawful Possession) Act, is liable to be prosecuted. There is also no prohibition against statements made during the course of enquiry being used at the trial of cases launched subsequently.