GANESH CHANDRA SAINI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Though a copy of the learned Sessions Judge, Jaipur dismissing the application under Section 438, Cr. PC moved by the Accused-petitioner has not been furnished, because the same could not be available as a result of the strike of the employees it is contended by the learned Counsel for the petitioner that the learned Sessions Judge has dismissed the application on the ground that the offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 (for short, the Act) is a bailable offence, and to such offence provisions of Section 438, Cr. PC are not applicable.

(2.) In my opinion, if that view has been taken by the learned Sessions Judge, as stated by the learned Counsel for the petitioner at bar, it does not appear to be in accordance with law. Offence under Section 3 of the Act in case of the first offence is punishable with imprisonment for a term which may extend to 5 years or with fine or with both, and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than 1 year & such fine shall not be less than Rs. 1,000/-. For the second or a subsequent offence the imprisonment can extend upto five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the court such imprisonment shall not be less than two years and such fine shall not be less than Rs. 2,000/-. To the trial of the case under the Act, the provisions of the Code of Criminal Procedure are applicable and in the schedule to that Code, if an offence against other laws other than the Indian Penal Code, is punishable with imprisonment for three years and upwards but not more than seven years, then the offence is not bailable and cognizable. Under Section 5 of the Act, an offence under the Act shall not be cognizable not withstanding any thing contained in the Code of Criminal Procedure. Under Section 8 of that Act, when any person is arrested by an officer of the Force for an offence punishable under the Act or is forwarded to him under Section 7, he shall proceed to inquire into the charge against such person. Under Sub-section (2) of Section 8 of the Act, the officer of the court may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police station may exercise and is subject to under the Code of Criminal Procedure, when investigating a cognizable case. Under the proviso to Sub-section (2) of Section 8 of the Act, if the officer of the Force is of the 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 in custody to such Magistrate. In case if it appears to him that there is not sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as he may direct to appear, if and when so required, before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior. Thus, merely because the officer of the Force can admit a person against whom in his opinion there is sufficient evidence or reasonable ground for suspicion, the offence will not become bailable. Even in a cognizable case, which is non-bailable, bail can be granted by the officer in charge who arrests the person. Therefore, merely because it is discretionary with the officer of the Force to admit a person to bail or to forward him in custody, the offence under Section 3 of the Act will not become bailable and as stated earlier it being an offence punishable with imprisonment for five years is a non-bailable offence. Therefore, in case there is apprehension of arrest under Section 3 of the Act, provisions of Section 438, Cr. P.C. will be applicable. It is different that on the facts of a particular case, the court may decline to exercise powers under Section 438 Cr. PC as it declines in many cases under the Indian Penal Code in the circumstances and nature of the offence and the material on record.

(3.) Now, the question is as to whether the petitioner is entitled to pre-arrest bail under Section 438, Cr. P.C.