MAHABIR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) By this application in revision the petitioners have prayed for setting aside the order of learned Munsif-Magistrate, Dhanbad dated the 22nd of December, 1970 which charges have been framed against them under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 [hereinafter referred to as 'the Act'] on the following averments;

(2.) On receiving confidential information on the 21st of December, 1969 at 3 A. M, in the night, that some thieves had been seen taking out rods and pipes from the goods train in Patherdih railway yard and that they had been seen being taken in the premises of Mahabir Prasad and also learning that a car bearing number WBJ 1138 had also been moving about on the Kacha road between the railway yard and the premises of Mahabir Prasad, the Officer-in-Charge of Jorapokhar police station Shri R. N. Prasad raided the premises of Mahabir Prasad on the same day. Mahabir Prasad claimed to be the licensee of Patherdih Foundry Engineering Works of which he was the proprietor. In course of the raid some iron rods, nut bolts and slipper base were recovered. The Officer-in-charge thereafter on the basis of his own statement instituted a case under Section 414 of the Indian Penal Code, 1860 and Section 3 of the Act. This first information report was drawn up on the 21st of December, 1969. at about 12.30 in the afternoon. After investigation into the said Jorapokhar P.S. Case No. 37 dated the 21st of December, 1969, the investigating Officer submitted charge-sheet against the petitioners in respect of the offences under Section 3 of the Act. No recommendation was made for prosecuting the petitioners under Section 414 of the Indian Penal Code, 1860. The charge-sheet was dated the 6th of July, 1970 and was put up before the learned Subdivisional Magistrate on the 7th of September, 1970 on which date the learned Magistrate took cognizance of the case under Section 3 of the Act and transferred it to Shri N.K. Prasad, Munsif-Magistrate First Class, Dhanbad for favour of disposal. On the 9th of December, 1970 the learned Magistrate adjourned the case to the 21st of December, 1970 for framing of charge. On the 21st of December, 1970 the learned Magistrate heard the parties on the point of framing charge against the accused (petitioners) where it was contended, as before this Court, that no report having been filed by any officer of Railway Protection Force, the learned Subdivisional Magistrate had no jurisdiction to take cognizance of the offence and, therefore, no charge could be framed against the petitioners. The learned Magistrate after hearing the parties by his order dated the 22nd of December, 1970 rejected the submissions urged on behalf of the petitioners on the ground that the illegality in investigation would not vitiate the trial unless it caused prejudice or miscarriage of justice.

(3.) Learned Counsel for the petitioners has reiterated before this Court the contention urged before the learned Magistrate. It was contended by Mr. Dabendra Narayan Sinha for the petitioners that, the Railway Property (Unlawful Possession) Act is a complete Code in itself and the members of the State Police Force have no right or obligation in the investigation of offences involving railway property. Section 5 of the Act lays down that notwithstanding anything contained in the Code of Criminal Procedure an offence under that Act shall not be cognizable. Section 5 of the said Act makes offences under the Act non-cognizable although Section 6 provides that any superior officer or member of the Force as defined under the Railway Protection Force Act 1957 may arrest any person who has been concerned in an offence punishable under the Act or against whom a reasonable suspicion exists, without any order from a Magistrate and without any warrant. Section 7 of the Act enjoins upon any person or authority arresting a person for an offence punishable under the Act, if the arrest was made by a person other than an officer of a Force to forward without delay to the nearest officer of the Force and the officers of the Railway Protection Force have been vested with the powers to enquire into the charge against any person arrested under the Act and to submit the report accordingly to a Magistrate for trial or otherwise. In the matter of holding inquiry the officers of the Railway Protection Force have been vested with powers to summon any persons whose attendance may be considered desirable for giving evidence as also producing any document. The persons so summoned are bound to attend either personally or by an authorised agent and shall be bound to state the truth under the penalty of being prosecuted under Section 193 of the Indian Penal Code, 1860. The inquiry thus contemplated by the Act is to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code, 1860. Section 14 of the Act lays down that the provisions of the Act shall have effect notwithstanding anything inconsistent from that contained in any other law for the time being in force. Upon a basis of these provisions in the Act, learned Counsel for the petitioners urged that this Act, in regard to offences regarding unlawful possession of Railway Property Act has completely supplanted the Code of Criminal Procedure in regard to investigation, It was, therefore, contended that the police authorities had no jurisdiction to investigate into the offences relating to unlawful possession of railway property.