JUDGMENT Madan Mohan Prasad, J. 1. This case has come to us on reference by a learned single Judge of this Court. 2. This is an application for quashing of an order by which cognizance of an offence under section 3 of the Railway Property (Unlawful Possession) Act, 1966, (hereinafter referred to as 'the Act') alleged to have been committed by these four petitioners and two others, has been taken by the Special Railway Magistrate of Barauni in the following circumstances. 3. On the 14th September, 1971, it is said a Permanent Way Inspector of the North Eastern Railway at Saharsa, was supervising the cutting of a drain in front of a saw mill of B. & Premji Patel of which petitioner no. 4 is the manager, and found second hand bridge and line sleepers and some new Sal sleepers in the premises of the mill. Accordingly, he lent an information thereof to the officer-incharge of G.R.P. As a result of it an entry in the station diary was made. The police officer came to the spot, seized the articles, arrested petitioner no. 4 and then released him on bail. He recorded all these facts also in another station diary entry. Petitioner no. 4 is said to have disclosed that the aforesaid sleepers had been given to him for the purpose of sawing by the other three petitioners in different quantities. G.R.P. did not do anything further. The officer-in-charge of the railway protection force however, instituted a case against these petitioners and two others under section 3 of the Act, aforesaid. In view of section 8 of the Act, an enquiry was held in course of which documents were found showing the sale of these sleepers to the first three petitioners, in other words, substantiating the defence taken by petitioner no. 4 with regard to his custody and by the other petitioners with regard to the sale of the articles aforesaid to them. During the enquiry these articles were found to be unserviceable for use on railway tracks. As a result, the officer-in-charge of the railway protection force submitted an enquiry report which he described as 'final report', laying that the charge could not be made out due to insufficient evidence. 4. During the enquiry these articles were found to be unserviceable for use on railway tracks. As a result, the officer-in-charge of the railway protection force submitted an enquiry report which he described as 'final report', laying that the charge could not be made out due to insufficient evidence. 4. It further appears from the records that on 13.10.1971 the officer-in-charge of the railway protection force had given a report to the Magistrate, which has been described by him as a 'forwarding report', along with other documents of the case e.g. the seizure list. The learned Magistrate ordered thereon "put up to discuss with A. P. P. for necessary action". On the next date, when the case was placed before him, he writes, "discussed with A. P. P. Ask progress report from the O/C RPF Mansi and ask them to produce the accused persons by 25-11-71" The subsequent orders show that the accused persons were absent and steps were taken for issue of Warrant of arrest. Ultimately, on 20-7-1972, the 'final report,' mentioned earlier, was received. The learned Magistrate then writes. "perused the F.F." and took cognizance of the offence and "transferred' the case to his own file for disposal and summoned prosecution witnesses fixing the next date. Hence this application. 5. Ultimately, on 20-7-1972, the 'final report,' mentioned earlier, was received. The learned Magistrate then writes. "perused the F.F." and took cognizance of the offence and "transferred' the case to his own file for disposal and summoned prosecution witnesses fixing the next date. Hence this application. 5. Learned counsel for the petitioners has urged that the order, by which cognizance has been taken, is illegal and improper, firstly, because the goods having been sold to petitioners 1 to 3 earlier bad ceased to be railway property and thus there could be no offence under section 3 of the Act, ; secondly because, no complaint was filed in this case and the learned Magistrate treating the 'final report' submitted by the railway protection force as a "police report" took cognizance on its basis, but such a report could not be a police report in view of the fact that a member of the railway protection force is not a police officer; thirdly, that the cognizance not having been taken either under clause (a) or clause (b) of section 190 of the Code of Criminal Procedure, 1898, (hereinafter referred to as the Code"), the only provision under which he could have taken cognizance was under clause (c) thereof, but before the learned Magistrate in the present case there were neither allegations of the property having been stolen or un-law fully obtained nor a police report to that effect nor any other information has been mentioned by the Magistrate to be the basis on which he has taken cognizance, and as such, it could not be an order under clause (c) thereof; and fourthly, that the order is arbitrary, the final report of the railway protection officer being that there was no evidence to sustain the charge and no reason having been assigned by him for taking a different view. In this connection, it has also been urged that he transferred the case to his own file for disposal and Summoned the witnesses, which would lend support to the argument that he was not acting under clause (c) otherwise in view of section 191 of the Code he would have most probably transferred it to some other Railway Magistrate. 6. I first propose to deal with the question of law raised. 6. I first propose to deal with the question of law raised. The first question is as to what is the provision of law under which the Magistrate appears to have taken cognizance of this case. It is quite apparent in the present case that there was no complaint before him. Counsel for the State urged that the 'forwarding report' before the Magistrate should be deemed to be a complaint and he should be deemed to have taken cognizance on that basis. I am unable to accept this contention. The forwarding report merely states that these sleepers etc. were found in saw mil of petitioner no. 4. who stated that they had been given to him for the purpose of sawing by petitioners 1 to 3 and others. There is no allegation in that forwarding report that the properties aforesaid were "reasonably suspected of having been stolen or unlawfully obtained" the main ingredient of the offence under section 3 of the Act. In the absence of the allegation it cannot amount to a complaint within the meaning of section 4 (h) of the Code. It is difficult to accept the argument that he took cognizance on this basis for another reason, viz. that assuming that it amounted to a complaint, all that he did was to postpone the matter for discussing with A. P. P. for necessary action. It is well known that a Magistrate takes cognizance on a complaint only when he applies his mind to the facts containing allegations with a view to take action on its basis under Chapter XII of the Code. This argument must, therefore, be rejected. 7. Now it has to be considered as to whether the Magistrate took cognizance on the basis of the final report which he describes as final form From the different orders passed by the Magistrate earlier it appears that he asked for progress reports of the inquiry and waited to take action until he received a final report which he treated as a "final form", obviously within the meaning of section 173 of the Code. There is no provision in the Act, for submitting any final report, loosely so called, or final form. The purpose of the inquiry under section 8 of the Act, is to enable the officer concerned to come to a decision as to whether a complaint should be lodged against the persons concerned. There is no provision in the Act, for submitting any final report, loosely so called, or final form. The purpose of the inquiry under section 8 of the Act, is to enable the officer concerned to come to a decision as to whether a complaint should be lodged against the persons concerned. The learned Magistrate seems to have been under the impression that the aforesaid report being a final form it was open to him to agree or disagree with the police officer submitting the report and take cognizance on its basis. In either case he could take cognizance if really the report aforesaid were a police report. 8. The question thus arises whether it can be deemed to be a 'police report' and the enquiry u/s. 8, an investigation. In this connection it will be relevant to reproduce below section 8 of the Act: (1) "When any person is arrested by an officer of the Force for an offence punishable under this Act, or is forwarded to him under section 7, he shall proceed to inquire into the charge against such person. (2) For this purpose the officer of the force may exercise the same powers and shall be subject to the Same provisions as the officer in charge of a police station ma} exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case: Provided that- (a) 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: (b) if it appears to the officer of the Force 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 the officer of the Force 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." Authorities are overwhelming to show that the inquiry under section 8 of the Act, is not an investigation within the meaning of the Cede and thus there can be no final form submitted by the inquiring officer. Counsel for the petitioner drew our attention first to a decision of the Supreme Court in the case of Badaku Joti Svant Vs. State of Mysore where provisions similar to section 8 of the Act, contained in section 21 of the Central Excise and Salt Act, were under consideration and it was held that all that section 21 provided was that for the purpose of the inquiry a Central Excise Officer shall have the powers of an officer in charge of a police station when investigating a cognizable case. The learned Judges held that these powers did not include the power to submit a charge sheet under section 173 of the Code. It is, however, not necessary to rely mainly upon this case for the question involved in the present case came up before their Lordships of the Supreme Court directly for decision in the case of State of V.P.V. Durga Prasad, In that case, which went up to the Supreme Court after the decision of the Allahabad High Court, the question was whether the inquiry under section 8 of the Act, amounted to an investigation under the Code of Criminal Procedure, and if a conviction based on the statements signed by witnesses and given during the course of such inquiry was hit by the principle of section' 162 of the Code and the conviction on that account was illegal. A learned single Judge of the Al1ahabad High Court ruled in favour of this point. (See 1971 Cr. L.J. 1582). The matter went up to the Supreme Court and their Lordships held that an inquiry under section 8 of the Act, could not be deemed to be an investigation for the purpose of section 162 of the Code. Their Lordships further said that the right and duty of an investigating officer to file a police report or a charge sheet on the conclusion of investigation is the hallmark of an investigation under the Code but the officer conducting an inquiry under section 8 cannot initiate court proceedings by filing a police report as is evident from the two provisos to section 8 (2) of the Act. It is thus obvious that the officer conducting an inquiry under section 8 of the Act, could only initiate prosecution by filing a complaint. It is thus obvious that the officer conducting an inquiry under section 8 of the Act, could only initiate prosecution by filing a complaint. Not being a police officer he could not submit a final form within the meaning of section 173 of the Code. The question as to whether an officer acting under the Central Excise Act, is a police officer within the meaning of section 25 of the Evidence Act, was considered by the Supreme Court and answered in the negative in the case of Badaku Joti svant (supra). The questions as to whether a member of the railway protection force is a police officer and if he can submit a police report was also considered in the case of Superintendent and Remembrancer of Legal Affairs, West Bengol on behalf of the State of West Bengal V.D. Svrya Rao. A learned single Judge held there that he was not a police officer, merely because by virtue of section 8 of the Act, he was to exercise all the powers of an investigating officer investigating into a cognizable offence. A similar view was taken by another learned single Judge of Gujarat High Court in the case of the Slate of Gujrat Vs. Abdul Rehman Ismail Gurji. It was held that the report of the inquiring officer could not be a police report under section 173 of the Code and such an officer has got to file a complaint if he wants to prosecute a person complained against. 9. If r may add to the reasons given in these decisions for coming to the aforesaid conclusion I would draw attention to the fact that a reading of the Act, clearly shows that the railway protection force is not created either under any statute creating police force nor in the manner similar to that nor have all the powers of a police officer been given to the members of the railway protection force. Section 3 of the Act, which relates to the constitution of the force, states the objectives thereof which is the better protection and security of railway property. Section 3 of the Act, which relates to the constitution of the force, states the objectives thereof which is the better protection and security of railway property. Section 10 of the Railway Protection Force Act, 1957, which is telling, clearly states that the Inspector General and every other superior officer and every member of the force shall for all purposes be regarded as railway servants within the meaning of the Indian Railways Act, 1890, other than Chapter VI-A thereof, (which relates to limitation of employment of Rail way servants) and shall be entitled to exercise the powers conferred on railway servants by or under that Act. The words "for all purposes" must be taken special notice of and it is obvious therefrom that for all purposes including the enquiry u/s 8 of the Railway Property (Unlawful Possession) Act, 1966, members of the force are railway servants. It is difficult to imagine that they could be railway servants as well as police officers at the same time. In any view of the matter, therefore, they are neither police officers nor does section 8 giving them the power to investigate make them police officers for the purpose of enabling them to submit final form within the meaning of section 173 of the Code. 10. In view of the aforesaid there was no police report before the Magistrate in the present case on the basis of which he could have taken cognizance and he has erred in law in treating the final report submitted after the enquiry to be police report and taking cognizance thereon. The order cannot be sustained on this account. 11. The question next arises, if as has been urged on behalf of the State, the Magistrate should be deemed to have taken cognizance under clause (c) of sub-section (1) of section 190 of the Code, which enables any Magistrate, mentioned there and specially empowered in that behalf, to take cognizance of any offence "upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed". It is well settled that an information derived from a complaint or a police report is not covered by clause (c) of the aforesaid section. It is well settled that an information derived from a complaint or a police report is not covered by clause (c) of the aforesaid section. Obviously, the legislature has provided for cognizance to be taken on the basis of facts stated in a complaint and police report in clauses (a) and (b) of the said section. Knowledge or information received from sources other than the aforesaid naturally fall within the purview of clause (c). The legislature has taken care to state that the information must be received from any person other than a police officer, thus excluding information contained in the police report. Information must, therefore, be derived from other sources or the Magistrate must have personal knowledge or suspicion that such an offence has been committed. As I have said earlier, it is obvious that in the present case, treating the final report so called as a police report the Magistrate appears to have taken cognizance. In the present case there is nothing to suggest that he had received any information from any person other than a police officer. Counsel for the State has, however, urged that the forwarding report initially placed before the Magistrate and the final report at the end submitted by the inquiring officer both taken together should be deemed to be the information given by the Magistrate upon which he should be deemed to have taken cognizance. This argument is untenable in the circumstances of the present case. What was the information given to the Magistrate initially ? All that was said was that certain railway property had been found within the premises of the saw mill of petitioner no. 4, who stated that they had been sent to him by the other petitioners for the purpose of sawing. This was all and nothing more. I have already stated earlier that there is as no allegations contained therein that they were the subject matter of theft or of being unlawfully obtained. The final report, on the other hand, said that there was no evidence to sustain the charge, and it was accompanied by documents, which proved that the aforesaid property had been sold to the first three petitioners, and admittedly, they were found within the premises of petitioner no, 4. his defence that they had been sent to him for sawing was not questioned and admitted by the other three petitioners. his defence that they had been sent to him for sawing was not questioned and admitted by the other three petitioners. In the absence of any information to show that the articles were suspected of having been stolen or unlawfully obtained, there was absn1utely no materia1 before the Magistrate, which would justify his taking cognizance of the offence. It is not said that the Magistrate had any knowledge or Suspicion that an offence under section 3 of the Act, had been committed in respect of these roods. There is this no escape from the conclusion that there was complete absence of material on the basis of which he could take cognizance under clause (C) of sub-section (1) of section 190 of the Act, of the offence. 12. There is another reason which may be noticed and that is has taken cognizance stated that he has taken cognizance under clause (C) nor has he reproduced the information. If any, on the basis of which he had taken cognizance. It was held in the case of thakur pershad Singh V. The Emperors by a division bench of that Court that all the informations on the basis of which a Magistrate acts and takes cognizance under clause (C) must be recorded. It is obviously only fair to the accused that he should know as to why and on what allegations or informations he is going to be prosecuted. The principle laid down in the aforesaid decision was followed in another case of the same court in Rash Behary Lal Mandal V. Emperor. In the case of Maung nyi Bu V. King – Emperor alearned single Judge referred to the cases aforesaid and while accepting the principle that it is desirable for a Magistrate to do so he1d that the omission to do so would not necessarily vitiate the proceeding. Counsel for the petitioners has urged in this connection that the order is arbitrary for the reason that the information had not been recorded or that the basis of his knowledge or suspicion had not been recorded, Whether it amounts to an illegality or it remains a mere impropriety makes no difference to the present case for the simple reason that there was absolutely no information at all before the Magistrate which he could have justifiably recorded as the basis on which he had taken cognizance. 13. 13. Although it is not necessary, in view of the aforesaid findings, to go into the question of fact raised by learned counsel for the petitioner, that the property had ceased to be railway property, he has pointed out that from the course of investigation itself, the goods aforesaid had been sold to the first three petitioner to the railway authorities they had checked up the question as to whether the property had been sold to the petitioner add found them to be correct. Even during inquiry the aforesaid goods were found to be unserviceable, supporting thereby the case of the petitioners took care of making the permanent way inspector, who had filed the original report to the G.R.P a party to the present case, he has not entered appearance in this Court. The facts, therefore, remain un-controverter and there is no reason to doubt the truth thereof. True, if they had been sold to the petitioners, they could neither be stolen property nor unlawfully obtained nor could they be deemed still to belong to the railway. 14. The conclusions at which I have thus arrived at, are that there was neither a complaint nor a police report before the Magistrate on which he could take cognizance. There was no information either that an offence had been committed on the basis of which he could take cognizance under clause (c). The Magistrate has, therefore, erred in law in taking cognizance of the alleged offence in the present case. His order cannot, therefore, be sustained and must be quashed. Accordingly, I quash the order dated 20.7.72. by which he has taken cognizance of the offence under section 3 of the Act, against the petitioners. This application is, accordingly, allowed. Shivanugrah Narain, J. I agree. In view of the great length at and the doubts once entertained on the question whether the order could not be supported under section 190 (1) (c) Cr.P.C. add few words of mine. As my learned Brother has shown, there was no complaint nor a report by any police officer on the basis of which the learned Magistrate cou1d have taken cognizance. The only ground on which the order could be supported was that the learned Magistrate had taken cognizance under section 190 (1) (c) of the Code of Criminal Procedure. As my learned Brother has shown, there was no complaint nor a report by any police officer on the basis of which the learned Magistrate cou1d have taken cognizance. The only ground on which the order could be supported was that the learned Magistrate had taken cognizance under section 190 (1) (c) of the Code of Criminal Procedure. Now, the only information or material in possession of the learned Magistrate was the forwarding report and the so-cal1ed final report submitted by the officer of the railway protection force, The final report could not be regarded as information showing that an offence had been committed, as it distinctly said that even a prima facie case was not established. The Magistrate obviously had no personal knowledge that an offence had been committed. The only question that remains, therefore, to be considered : is were there materials on which he could reasonably entertain a suspicion that an offence had been committed? Of course it is for the Magistrate to be satisfied that the grounds existed for reasonable suspicion, but, if there are no materials on which any reasonable person could entertain a suspicion, this Court can certainly hold that the Magistrate could not have taken cognizance on the ground that he suspected that the offence had been committed. In the present case, the offence alleged was One under section 3 of the Railway Property (Unlawful Possession) Act, 1966, the essential ingredient of which is that the accused must be proved to have been in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained. In the present case, as my learned Brother has pointed out, the materials gathered by the officer of the railway Protection force in course of inquiry leave no scope for any reasonable suspicion that the property, found in possession of petitioner no. 4, assuming it was a railway property at some time, can be held to have been reasonably suspected of having been stolen or unlawfully obtained. The report of the railway officers proved that the sleepers found were unserviceable for us in tracks and evidence was produced before the officer showing that most of the railway sleepers had been sold to petitioners 1 to 3 from whom petitioner no. 4 claimed to have obtained them. Application allowed.