P. v. Subramaniam VS C. Vellaiswamy — 1989 DIGILAW 309 (MAD)

Judgment : These three Criminal Miscellaneous Petitions had been filed to quash the proceedings in C.C.No.402 of 1984 on the file of the Chief Judicial Magistrate, Tiruchirapalli. 2. OneC.Vellaiswamy, the 1st respondent in all these three petitions, filed a complaint against these petitioners-accused before the Court below for offences under Secs.323 and 355, I.P.C. The petitioners are the members of the Railway Protection Force. The 1st respondent is a resident of Manjanakkara Street, Tiruchirappalli. He is running an old iron scrap shop at No.71, Eda Street, Palakkarai, Tiruchirappalli. 3. On reliable information that railway properties stolen from the railways were in unlawful possession of the 1st respondent at his shop after obtaining a search warrant from the Judicial First Class Magistrate No.II, Tiruchirappalli, the petitioner, on 29:9.1983 conducted a search of his shop between 1.30 and 2.30 p.m. and recovered 11 Nos. of small coil springs, 2 Nos. of buffer springs, 1 No. of coupling hook, 10 Nos. of A.C. chairs, 5 Nos. of steel keys and 3 Nos. of Dog spikes belonging to the Railways under the cover of search list duly attested by witnesses after furnishing a copy of the same to him under acknowledgement. The first respondent did not have any bill or authority for possession of the same. He was examined and a statement had been recorded. He was arrested and brought to Trichy Goods Yard RPF Post along with seized properties and handed over to the Inspector, R.P.F. Trichy Goods Yard. 4. A case was registered in Trichy Goods Yard R.P.F. Post Crime No. 28 of 1983 under Sec.3(a) of the Railway Property Unlawful possession Act, 1966 (hereinafter referred to as the ‘Act of 1966’) against him and he was produced before the Magistrate on 30.09.1983 for remand. The first respondent was released on bail on 4.10.1983. On 29.09.1984, he filed a complaint before the Judicial First Class Magistrate No.II, Trichy against the petitioners alleging that they, at the time of taking into custody on 29.09.1989 hurled violence on him resulting in his sustaining injuries and when he requested for water to quench his thirst, accused 3 (petitioner in Crl.M.P.No.6605 of 1986) poured urine into his mouth by use of force with a view to dishonour him. 5. The complaint so filed was returned by the Judicial First Class Magistrate No.II, Trichy on 28.09.1984 with the following endorsement. 5. The complaint so filed was returned by the Judicial First Class Magistrate No.II, Trichy on 28.09.1984 with the following endorsement. “As per Circular Orders of the High Court, Chief Judicial Magistrate is the competent authority to take cognizance of complaints of this nature. Therefore directed to produce before proper Court.” 6. Accordingly, learned counsel for the first respondent represented the complaint before the Chief Judicial Magistrate on 29.09.1984. On that day, learned Chief Judicial Magistrate was on other duty. The Officer in charge of the post of the Chief Judicial Magistrate directed the complaint to be filed on 1.10.1984. Accordingly, the complaint was represented on 1.10.1984 and after successive returns, it was taken on file on 12.10.1984 by learned Chief Judicial Magistrate, Trichy after recording the sworn statement of the complainant. The endorsement of learned Chief Judicial Magistrate runs as follows: “Sworn statement of the complainant recorded. Taken on file under Secs.323, 355 and posted to 25.10.1984 for 202 enquiry.” Learned Chief Judicial Magistrate conducted enquiry under Sec.202, Crl.P.C., accordingly on 25.10.1984 and examined four witnesses and took the case on file in C.C.No.402 of 1984 and issued process to the petitioners. 7. The petitioners respectively in Crl.M.P.No.6599 of 1986, 5505 of 1985 and 6605 of 1986 were arrayed as accused 1 to 3 in the complaint before the Court below. After receipt of process, the petitioners accused have come forward with the present petitions. 8. Learned counsel appearing for the petitioners pressed the following points for quashing the proceedings before the Court below: “(i) Since the petitioners belonged to the Railway Protection Force, the complaint filed against them could not be taken on file except by following the procedure prescribed under Sec.20(3) of the Railway Protection Force Act, 1957 (hereinafter referred to as ‘the Act of 1957’); and (ii) The complaint filed as such is also barred by limitation under the provisions of Sec.468 of the Code of Criminal Procedure thereinafter referred to as ‘Crl.P.C.‘).” 9. Let me now delve deep into the first ground of attack. A bare perusal of the complaint itself would show that the petitioners are in the cadre of Inspector or Sub-Inspector of Police, Railway Protection Force. Hence, they are members of the Railway Protection Force. Therefore, it goes without saying that the Act of 1957 would be applicable to them. 10. A bare perusal of the complaint itself would show that the petitioners are in the cadre of Inspector or Sub-Inspector of Police, Railway Protection Force. Hence, they are members of the Railway Protection Force. Therefore, it goes without saying that the Act of 1957 would be applicable to them. 10. Learned counsel for the petitioners would submit that the provisions of Sec.20(3) of the Act, of 1957 consist of two limbs. The first limb of the sub-section prescribes that a notice in writing should be given to the person concerned and his superior officers at least one month before the commencement of any legal proceedings, against any member of the Railway Protection Force. The second limb contemplates that any legal proceeding, whether civil or criminal, which may be brought against any member of the force shall be commenced within three months after the act complained of. So far as the present case is concerned, learned counsel would submit that none of the two limbs had been complied with before launching of the prosecution against the petitioners and therefore, the proceedings initiated against them in the Court below should be quashed. 11. Learned counsel for the 1st respondent, on the other hand would contend that the acts complained of against the petitioners clearly fall outside the scope of their duties and therefore, Sec.20(3) of the Act of 1957 will not cover such cases. He would also repel the plea of limitation as raised by learned counsel for the petitioners by submitting that the complaint filed as such is very well within time. 12. For appreciating the rival submissions, it is better to reproduce Sec.20(3) of the Act of 1957 which is as follows: “Notwithstanding anything contained in any other law for the time being in force, for any legal proceeding, whether civil or criminal, which may lawfully be brought against any superior officer or member of the Force for anything done or intended to be done under the powers conferred by, or in pursuance of, any provision of this Act, or the rules thereunder shall be commenced within three months after the act complained of shall have been committed and not otherwise; and notice in writing of such proceeding and of the cause thereof shall be given to the person concerned and his superior officer at least one month before the commencement of such proceeding.” 13. A bare perusal of the aforesaid provision would make it crystal clear that this sub-section starts with a non-obstinate clause. “Notwithstanding anything contained in another law for the time being in force.” So, the above said sub-section overrides any other law for the time being in force and the consequence is that if any civil or criminal proceeding is to be initiated against the members of the Force for anything done or intended to be done under the powers conferred by any provision of the said Act, as reflected by the various provisions contained therein, it would delimit the powers and duties of the Members of the Force. 14. The members of the Force are given power under Sec.12 of the Act of 1957 to arrest without warrant. Likewise, they are also given power to search without warrant under Sec.13. The powers of arrest and search are to be effected by the members of the Force, under the circumstances mentioned in the aforesaid provisions. The members of the Force may, without an order of the Magistrate and without a warrant, arrest. (a) any person, who has been concerned in an offence relating to railway property punishable, with imprisonment for the term exceeding six months, or against whom a reasonable suspicion exists of his having been so concerned; or (b) any person found taking precautions to conceal his presence within railway limits under circumstances which afford reason to believe that he is taking such precautions with a view to committing theft of, or damage to, railway property. 15. Any member of the Force not below the rank of a Senior Rakshak, is given power to search a premises without a warrant. In such a situation, the condition precedent is that he has reason to believe that any such offence as is referred to in Sec.12 has been or is being committed and that a search-warrant cannot be obtained without affording the offender an opportunity of escaping or of concealing evidence of the offence. Despite existence of such wide powers, the petitioners in the present case effected the search of the business premises of the first respondent only after obtaining a warrant from the concerned Magistrate and the search so effected resulted in the fruitful recovery of the properties belonging to the railways for possession of which the first respondent was finable to explain or account for. For such an unlawful possession of the properties belonging to the Railways, he had been arrested and a case in fact had been registered against him under the relevant provisions of the Act of 1966. 16. It is only when effecting his arrest, violence is stated to have been hurled upon him, resulting in his sustaining injuries, besides pouring of urine into his mouth and making him to drink by the petitioners. It is lawful for the petitioners to effect the arrest of the first respondent, when he was found in unlawful possession of the properties belonging to the Railways. In effecting his arrest, the petitioners cannot be expected to hurl violence, besides subjecting the first respondent to inhuman treatment of making him to drink urine, in their purported exercise of their powers of arrest, for his alleged unlawful possession of railway properties. The act of hurling violence is definitely an unlawful act, which cannot be effectuated, in their purported exercise of powers of arrest of the first respondent. 17. If a close look at the phraseology, “for anything done or intended to be done under the powers conferred by, or in pursuance of, any provision of this Act, or the rules thereunder” is made, it will give a clue as to the ambit of the coverage of various acts gone by the members of the force in exercise of the powers conferred by the Act. Any act done or intended to be done under the powers conferred by the provisions of this Act would fall within the ambit of the sub-section. If the act done turned to be unlawful in the purported exercise of the powers conferred by the Act, it may give rise to action under any civil or criminal law. It is only to cover such a contingency, the sub-section appears to have been enacted. If the act done turned to be unlawful in the purported exercise of the powers conferred by the Act, it may give rise to action under any civil or criminal law. It is only to cover such a contingency, the sub-section appears to have been enacted. From the above sanguine provisions of sub-section, it is clear that the members of the Force are not at all sought to be protected for their unlawful acts in the purported exercise of the powers under the provisions of the Act, but they are not allowed to be unnecessarily harassed in the discharge of their functions by the unscrupulous person accused of offence, under the Act of 1966, by the launching of actions, civil or criminal against the members of the Force by making a provision that such actions are allowed to be launched after complying with the provisions thereof. 18. Admittedly, so far as the case on hand is concerned, the procedure prescribed under Subclause (3) of Sec.20 of the Act of 1957 had not at all been followed before filing a criminal complaint against the petitioners, members, of the Railway Protection Force and it must therefore follow that the prosecution as instituted is not valid. In the view that I have taken, it goes without saying that the contention of learned counsel for the petitioners has to be accepted in preference to the contention of learned Government Advocate revolving on the question of applicability of Sec.20(3) of the Act of 1957. 19. Let me now turn my attention to the rival submissions made on the question of plea of limitation regarding the launching of prosecution against the petitioners. The acts complained of against the petitioners admittedly took place on 29.9.1983. A bare perusal of the recitals of the complaint as well as the sworn statement and the statement of witnesses made under Sec.202, Crl.P.C., enquiry would reveal that accused 1 and 2 were alleged to be responsible in hurling violence on the person of the complainant, resulting in his sustaining simple injuries while accused 3 was alleged to be responsible for subjecting him to inhuman treatment of making him to drink urine by use of force and thereby dishonouring him. Thus, the alleged acts of accused 1 and 2 would prima facie amount to an offence under Sec.323, I.P.C., while that of accused 3 to an offence under Sec.355, I.P.C. The period of limitation for launching of prosecution depends upon the quantum of punishment prescribed under the Code of Criminal Procedure for the indictment of the offence complained of. The offence under Sec.323, I.P.C., is punishable with imprisonment for one year or fine of Rs.1,000 or both. The offence under Sec.355, I.P.C., is punishable with imprisonment for two years or fine or both. Under Sec.468, Crl.P.C., no Court shall take cognizance of an offence under Sec.323, I.P.C. after one year and of an offence under action 355, I.P.C., after three years from the date of commission of the offence. 20. Then the moot question that arises for consideration is as to what is the date of the cognizance of the offence stated to have been committed by the petitioners taken by the Court below. The act complained of against accused 1 to 3 having admittedly happened on 29.9.1983, the cognizance of the alleged offence against accused 1 and 2 under Sec.323, I.P.C., could have been taken by the Court below before the expiry of the period of one year from the date of the commission of the offence, that is, before 28.9.1984. As far as accused 3 is concerned, the cognizance of the alleged offence against him under Sec.355, I.P.C could have been taken by the Court below before the expiry of the period of three years from the date of commission of the offence, that is, before 29.9.1986. 21. As adverted to earlier, the complaint had been launched on 28.9.1984 before the Judicial First Class Magistrate No.II, Trichy. 21. As adverted to earlier, the complaint had been launched on 28.9.1984 before the Judicial First Class Magistrate No.II, Trichy. If 28.9.1984, the date of filing of the complaint is the date or which the cognizance of the offence had been taken out by the Court below, then it would be more well within time for offences both under Sec.323 as well as Sec.355, I.P.C. Learned counsel for the petitioners would submit that before it can be said that any Magistrate has taken cognizance of any offence under Sec.190(1)(a), Crl.P.C. he must not only have applied his mind to the contents of the complaint, but he must also have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of Chapter XVI proceeding under Sec.200, Crl.P.C. and thereafter sending it for enquiry and report under Sec.202, Crl.P.C. He would further submit that when the Magistrate applied his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, example, ordering investigation under Sec.156(3), Crl.P.C. or issuing search warrant for the purpose of investigation, he cannot be said to be have taken cognizance of the offence. 22. In support of this contention, learned counsel for the petitioners would place reliance on the decision D.Lakshmi Narayana v. V.Narayana, 1976 Crl.L.J. 1361, wherein the Supreme Court has held as follows: "The expression ‘taking cognizance of an offence’ by the Magistrate has not been defined in the Code. The ways in which such cognizance can be taken are set out in Clauses (a), (b) and (c) of Sec.190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking when on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Sec.200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Sec.190(1)(a). Broadly speaking when on receiving a complaint, the Magistrate applies his mind for the purpose of proceeding under Sec.200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Sec.190(1)(a). If instead of proceeding under Chapter IX, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Sec.156(3), he cannot be said to have taken cognizance of any offence." 23. In amplification of his argument, he would further submit that in the case of hand the Judicial First Class Magistrate No.II, Trichy before whom the complaint was said to have been filed on 28.9.1984 cannot be said to have applied his mind for the purpose of proceeding under the subsequent sections of this Chapter arid therefore, it cannot be stated that he had taken cognizance of the offence complained of against the petitioners on that date and what he had done was that he had simply returned the complaint for presentation before the proper Court. The subsequent date of representation of the complaint before the Chief Judicial Magistrate, Tiruchirapalli on 29.9.1984 cannot also be stated to be date on which cognizance of the offences against the petitioners had been taken by the in-charge Magistrate, who simply issued a direction for filing the same on 1.10.1984. The complaint was however taken on file by learned Chief Judicial Magistrate, Trichy on 12.10.1984, after recording the sworn statement of the first respondent complainant under Secs.323 and 355, I.P.C., for the purpose of proceeding under Sec.202, Crl.P.C. It is thus clear that learned Chief Judicial Magistrate had applied his mind to the contents of the complaint for the purpose of proceeding under the subsequent provisions of Chapter XVI and therefore it is that it can be stated that learned Chief Judicial Magistrate had taken cognizance of the offence complained of against the petitioners on 12.10.1984. 24. 24. If 12.10.1984 is the date on which Court below had taken cognizance of the offence complained of against the petitioners, it goes without saying that the period of limitation of one year for the alleged offence under Sec.323, I.P.C. against accused 1 and 2 could have expired on 28.9.1984 itself; though the period of limitation can be said to be alive for the alleged offence Complained of against accused 3 under Sec.355, I.P.C. till 28.9.1986. Learned counsel for the 1st respondent would simply assert that 28.9.1984 the date on which the complaint had been launched before the Judicial First Class Magistrate No.II, Trichy could be reckoned as the date on which the complaint had been taken cognizance of against the petitioners and therefore it is that the complaint even as against accused 1 and 2 is maintainable, as being well within the period of limitation. The bizarre and bare contention of learned counsel for the 1st respondent on this aspect of the matter, on the face of the submission made by learned counsel for the petitioners, ably supported by the decision of the Supreme Court cited above, cannot be expected to commend acceptance at the hands of the Court. The net result is learned counsel for the petitioners would succeed on the plea of limitation so far as accused 1 and 2 are concerned, though his plea would fail so far as accused 3 is concerned. 25. However, accused 3 is also bound to succeed in view of my finding on his first contention. 26. For the foregoing reasons, the Criminal proceedings initiated against the petitioners by the first respondent before the Court below deserve to be quashed. 27. Inthe result, all these petitions are allowed by quashing the proceedings in C.C.No.402 of 1984 on the file of the Chief Judicial Magistrate, Tiruchirapalli.