SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS WEST BENGAL ON BEHALF OF THE STATE OF WEST BENGAL Vs. D SURYA RAO

JUDGEMENT

(1.) This Rule is at the instance of the Superintendent and Remembrancer of Legal Affairs, West Bengal and is against an order dated the 11th September, 1968 passed by Shri A.K. Sen, Magistrate. 1st Class, Midnapur (S) in case No. 164 (S) of 1968/T. R. 1929/68 under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, allowing the prayer made on be half of the defence for granting copies of the documents and statements upon which the prosecution wanted to rely and rejecting the objection made on behalf of the prosecution in that behalf-

(2.) The facts leading on to the Rule can be put in a short compass. At about 23 hours on 8-5-68 a General Diary was entered at the Nimpura R. P. F. Post Station Stating inter alia that at about 9-30 p. m. during the course of their patrol duty, some members belonging to the Railway Protection Force, referred to in the said diary, noticed the two accused in the company of some others proceeding towards the Bombay Road through the maidan close to the Rakha Jungle and nearby the Marshall Yard. When challenged by the R. P. F staff, they took to their heels and after a hot chase, the R. P. F. personnel managed to arrest the two accused while the others filed away leaving several fishplates. The said persons who were arrested failed to account for the possession of the Railway properties recovered from them nor could they produce any authority for carrying the same. They gave their names as D. Surya Rao and Masala Kameswara Rao. The articles were seized and seizure-lists were drawn up on the same date. A report followed on the basis whereof the above-mentioned G. D. No. 262 dated the 8-5-68 was entered in the Nimpura R. P. F. Post Station. The O. C. of the Railway Protection Force, Nimpura thereafter made an investigation and recorded several statements on 8-5-68, 8-6-68 and 9-6-68- Ultimately he submitted a report on the 11th June, 1968 to the learned Sub-Divisional Magistrate, Midnapur (S) mentioning the above-mentioned facts and also that a case of theft of some fish-plates from the railway track near the Arora Gate at about 5-30 hours on 7-5-68 was already reported, being Bankura F. R. P. S. case No. 5 dated 8-5-68 under Section 379. I. P. C. and prayed for a production warrant being issued on the learned Sub-Divisional Magistrate (N) Bankura for producing the two accused, D. Surya Rao and Masala Kameswara Rao in connection with R. P. F. case No. 2 under Section 3(a) of the Railway Property (Unlawful Possession) Act. 1966. On the 31st July. 1969, the two accused persons were produced by the escort party and were taken in custody. The learned Sub-Divisional Magistrate (S), Midnapur thereafter by his order of the same date took cognisance upon the report referred to above and transferred the case to Shri A.K. Sen, Magistrate, 1st Class, Midnapur for disposal-On the same date, the learned transferee magistrate passed an order fixing 11-9-68 for the evidence of prosecution witnesses. On that dale 5 witnesses were present, when the defence made a prayer for the copies of the documents and statements on which the prosecution wanted to rely but the prosecution objected thereto on the ground that this was a non-cognizable offence and that the defence was not entitled to the same The learned Magistrate, however, was pleased by his order of the same date, to allow the prayer of the defence for copies and overruled the objection made on behalf of the prosecution, directing the latter to arrange for the delivery of such copies by the 9lh October, 1968. This order has been impugned and forms the subject-matter of the present Rule.

(3.) Mrs. Mukti Moitra, Advocate, appearing for the Superintendent and Remembrancer of Legal Affairs, West Bengal, on behalf of the Slate of West Bengal, had made a two-fold submission. The first contention of Mrs. Moitra is one of law and relates to procedure- She has contended that in view of the nature of the provisions of the Railway Properties (Unlawful Possession) Act, 1966 (Act 29 of 1966), cases instituted thereunder are not on a police report but on a complaint, attracting the provisions of section 252 and the following sections under Chapter XXI of the Code of Criminal Procedure and ruling out the necessity to furnish to the accused the copies of the documents and statements referred to under Section 173(4) of the Code. The steps of Mrs. Moitra's reasoning are that (a) the officer of the R. P. F. holding an enquiry under Section 8 of Act 29 of 1966 may exercise "the same powers and shall be subject to the same provisions as the offi-cer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure. 1898 (5 of 1898) when investigating the cognizable case" but is nonetheless not a police officer properly so-called within the meaning of Section 190(1) (b) of the Code of Criminal Procedure; (b) the inquiry made by such an officer is not an investigation held under Chapter XIV of the Code of Criminal Procedure; and that he has no power to submit a charge-sheet under Section 173 Cr. P. C.; (c) a R- P. F. officer under Act 29 of 1966 will have to make a complaint under Section 190(1) (a) of the Code of Criminal Procedure if he wants the magistrate to take cognizance of the offence thereunder and (d) the provisions of Section 173(4) of the Code are not applicable to a case under the said Special Act, where- to the provisions of Section 252 and the following sections under Chapter XXI of the Code would apply. An ancillary submission was made by the learned Advocate referring to the language of the order dated the 31st July. 1969 passed by Shri A.K. Dutt, Sub-Divisional Magistrate (S), Midnapur, viz., that "Seen the complaint of S. I. R. P. F., Nimpura. Cognizance taken". In support of her contention. Mrs. Moitra also referred to several cases decided under different Special Acts as decisions pari materia and those will be considered in their proper context. The second contention of Mrs. Moitra centered round the maintainability of the impugned order itself dated the 11th September, 1908, in view of the findings arrived at therein by the learned magistrate himself. Mrs. Moitra submitted that the concept of liberal interpretation referred to therein has been wrongly introduced by the learned Magistrate for interpreting the provisions of a Special Act viz., of Section 8 of Act 29 of 1966, relating to procedure vitiating ultimately the resultant trial.