STATE OF RAJASTHAN Vs. JAGDISH

JUDGEMENT

(1.) THIS in an appeal by the State against the judgment of acquittal dated December 28,1982 passed by the learned Judicial Magistrate (Railways), Jodhpur in Criminal Case No. 23 of 1975 under section 3 of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as 'the Act' ).

(2.) BRIEFLY stated the prosecution case is that on the intervening night of 26/27-8-1974, Head Rakshak Shri Raghubirsingh and Rakshak Devaram, while on round saw one person dropping coal from the Railway wagon and they further saw the other person, collecting and filling it in bags. Both of them concealed themselves and apprehended the accused-persons namely: Jagdish and Bheekamchand in the presence of Hardeen. The Head Rakshak Shri Raghubirsingh prepared the recovery memos Ex. P/3 and Ex. P/6 and, the arrest memos Ex. P/4 and Ex. P/5 and also made an entry in the diary Ex. P/8. On finding, that a case under section 3 of the Act was made out against them, be recorded in the daily diary Ex. P/8 that case be registered against both the accused-persons under section 3 of the Act. The Head Rakshak was also in-charge of the out-post, Merta Road at that time. He further recorded that C. R. No. will be obtained from the Company Commander telephonically. Shri B. G. Sharma, A. S. I. arrived at Merta Road in pursuance of the message of the Head Rakshak and he began enquiry. He recorded the statements of the accused-persons, Ex P/9 and Ex. P/10. The enquiry was then made over by him to the A. S. I. Shri S. D. Purohit and after completion of the enquiry, he presented a challan in the court of Judicial Magistrate. (Railways), Jodhpur. The accused-persons, on being charged pleaded not guilty to the charge and claimed to be tried. The prosecution, in this case examined P. W. 1 Shreedhar Purohit, PW 2 Head Rakshak Shri Raghubirsingh, A. S. I. Railway Protection Force, P. W. 3 Devaram Rakshak and PW 4 Hardeen, chowkidar, in whose presence the accused-persons were arrested and the property was seized, P. W. 5 Shri D. N, Pandey and P. W. 6 Bhikagiri Sharma. The statements of the accused-persons were recorded and the accused-persons examined two witnesses in defence namely; D. W. 1 Sohanlal and D. W. 2 Ramakishan, The learned Magistrate heard the arguments and acquitted the accused-persons on the ground that the case was registered by the Head Rakshak Shri Raghubirsingh, who was not competent and had no authority to register the case and enquiry under section 8 of the Act is a judicial proceeding within sub-section (4) of Sec. 9 of the Act, so the whole trial is vitiated Consequently, he acquitted the accused-persons, hence, this appeal by the State.

(3.) THE second question, which may arise for consideration is as to whether, the registration of the case is a part of the enquiry. THEre does not appear to be any reason for the view taken by the learned Magistrate in this regard. THE enquiry under section 8 of the Act, shall begin after registration of the case. Registration of the case is nothing but a formation of the opinion on the basis of the information furnished to the Officer of the Force or which is in his knowledge. Enquiry under section 8 of the Act will begin after recording of such information and after prima facie finding that the information suggests the commission of an offence under the Act. Thus, the act of registration of the case can not be considered as a part of the enquiry. If it is not be a part of the enquiry, then the entire reasoning adopted by the Magistrate falls as he has treated the enquiry to be a judicial proceeding and registration of the case has been considered to be a part of the enquiry and he has expressed that this infirmity in the registration of the case vitiates the trial.