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1995 DIGILAW 421 (PAT)

Abdul Mayeed v. State Of Bihar

1995-08-03

NAGENDRA RAI

body1995
Judgment Nagendra Rai, J. 1. The accused petitioners have filed the present application for quashing the order, dated 6-12-1989 passed by the Judicial Magistrate, 1st Class, Samastipur, in R.P.F. Case No. 31/87 taking cognizance under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the Act) as well as the order, dated 18-4-1995 rejecting the petition filed by the petitioners for their discharge. 2. The necessary facts to appreciate the point canvassed at the bar in this case are that on the basis of a report of Rajit Ram Shukla on 15-9-1987 that the petitioners were found in possession of railway property, a crime case being R.P.F. Case No. 31/87 under Section 3(a) of the Act was registered and enquiry of the case was entrusted to an ASI of RPF who after conducting the enquiry submitted a prosecution report. There after the learned Magistrate took cognizance, as stated above, against the petitioners. 3. Seven witnessesses were examined prior to charge and thereafter the accused petitioners filed an application for their discharge on the ground that Officer of the RPF has no power to submit charge-sheet and as he has submitted charge-sheet in this case on the basis of which conizance has been taken, the same is vitiated in law. The learned Magistrate rejected the prayer of the petitioners and fixed the date for framing of charge against them. 4. Learned counsel for the petitioners submitted that the Officer of the RPF has no power to submit charge-sheet and in that view of the matter cognizance taken on the basis of the charge-sheet submitted by the Officer of the RPF is impermissible in law. In support of the contention learned counsel for the petitioners relied upon a judgment of the Supreme Court in the case of Bal Krishan v. State of Maharashtra, reported in 1980 BBCJ (SC) 131. He also relied upon certain order passed by this Court, wherein relying upon the said decision the prosecution under the Act has been quashed on the ground that the cognizance has been taken on the basis of charge-sheet submitted by RPF personnel. 5. I find myself unable to agree with the submission advanced on behalf of the petitioners for the reasons stated hereinafter in detail. 6. 5. I find myself unable to agree with the submission advanced on behalf of the petitioners for the reasons stated hereinafter in detail. 6. The Railway Property (Unlawful Possession) Act, 1966 has been enacted to consolidate and amend the law relating to unlawful possession of railway property. Prior to enactment of this Act, the Railway Protection Force Act, 1957 (hereinafter referred to as 1957 Act) had been enacted with a view to provide for the constitution and regulation of the Railway Protection Force for the better protection and security of the railway property. Under the said Act uo power of investigation regarding cognizable offences concerning railway property was conferred on the members of the Force or its superior officers. After making arrest under Section 13 of the 1957 Act, the member of the Force or superior officer shall have to make over the person arrested to a Police Officer or cause his production in the nearest police station. The Act has been enacted with the object to vest power of investigation and prosecution of offences relating to railway property in the same manner as in the Excise and Customs Act. 7. Section 3 of the Act provides penalty for ulawful possession of railway property and Section 5 states that the offence under the Act shall not be cognizable. Section 6 vests power in the superior office or member of the force to arrest without warrant end Section 7 provides that if a person is arrested for an offence punishable under the Act by a person other than an officer of the Force, he shall be forwarded without delay to the nearest officer of the Force. Section 8 contains the provision with regard to enquiry to be made by an officer of the Force and Section 9 empowers an officer conducting enquiry to summon persons to give evidence and produce documents and, according to sub-section (4) of Section 9 such enquiry is a judical proceeding within the meaning of Sections 193 and 228 of the Indian Penal Codei Section 14 of the Act states that the provision of this Act shall have effect notwithstang anything inconsistent contained in any other law for the time being in force. 8. The combined reading of the aforesaid provisions makes it abundantly clear that the provisions of this Act shall override all other laws. 8. The combined reading of the aforesaid provisions makes it abundantly clear that the provisions of this Act shall override all other laws. The provisions of the Code of Criminal Procedure with regard to investigation which are inconsistent with the provisions of the Act will be non-applicable so far as the offences under the Act are concerned. The offences under the Act are non-cognizable meaning thereby the police has no power to investigate the case without the permission of the competent Magistrate. The Officer of the RPF has been given power to make enquiry which is in a nature of the judicial proceeding within the meaning of Sections 193 and 228 of the Penal Code. After completion of enquiry he has to submit a report to the concerned Magistrate which has to be treated as a complaint for the simple reason that the report submitted by the officer under the Act cannot be termed as police report, as defined under Section 2(r) of the Code of Criminal Procedure. The police report means a report forwarded by a Police Officer to a Magistrate under Section 173(2), CrPC aster completion of investigation in accordance with the provisions of the Code of Criminal Procedure. 9. In the case of Bal Krishan (supra), relied upon by the petitioners the question for consideration was as to whether an Inspector of RPF holding an enquiry is a police officer within the meaning of Section 25 of the Evidence Act. After having noticed the provision of the Act as well as the relevant provisions of the Code of Criminal Procedure, the Apex Court held in paragraph 26 that the mode of initiating prosecution by submitting a report under Section 173 read with clause (b) of Section 190 of the Code is, therefore, not available to an officer of the RPF who has completed an inquiry into an offence under the 1966 Act. The only mode of initiating prosecution of the person against whom he has successfully completed the inquiry, available to an afficer of the RPF is by making a complaint under Section 190(l)(a) of the Code to the Magistrate empowered to try the offence. It has further been held in paragraph 41 of the report that an officer of RPF conducting an inquiry has not been invested with all the powers of the officer-in-charge of the police station making an investigation under the Code. It has further been held in paragraph 41 of the report that an officer of RPF conducting an inquiry has not been invested with all the powers of the officer-in-charge of the police station making an investigation under the Code. Particularly, he has no power to submit charge-sheet before the Magistrate under Section 173 of the Code. Accordingly, it was held that Inspector of RPF could not be deemed to be a Police Officer within the meaning of Section 25 of the Act. 10. Thus, it is evident that the enquiry under the Act is different from the investigation under the Code of Criminal Procedure and the report sub-mitted after conclusion of the offenders under the Act cannot be treated as police report or charge-sheet as defined under the Code of Criminal Procedure and the initiation of the prosecution for the offences under the Act can only be done by filing a complaint. In my view, once the enquiry is conducted in terms of the provisions of the Act and a report is submitted by the RPF Officer before the Magistrate and then the same is to be treated as complaint in the eye of law even if it is wrongly described as charge-sheet by the RPF. It will remain as complaint for all purposes as the RPF Officer has no power to submit charge-sheet after conclusion of enquiry. The report submitted by an officer of the RPF which is treated as complaint cannot be robbed of its character as such only because it is wrongly termed as charge-sheet. It is the substance and not the form which matters. The heading of the complaint as charge-sheet is immaterial. Preference to form in place of substance of the document is just preferring a chaff and not the grain. Taking such a view would be too technical and quashing a prosecution on this technical bround will result in miscarriage of justice. The decision of the Apex Court relied upon by the petitioners does not go to the extent as suggested by the learned counsel for the petitioners, It is an authority only on the point that RPF has no power to submit charge-sheet as the charge-sheet can be submitted only after conducting an investigation under the Code of Criminal Procedure. The decision of the Apex Court relied upon by the petitioners does not go to the extent as suggested by the learned counsel for the petitioners, It is an authority only on the point that RPF has no power to submit charge-sheet as the charge-sheet can be submitted only after conducting an investigation under the Code of Criminal Procedure. It is not an authority on the point that if an officer of the RPF conducts an enquiry under the Act and submits a report wrongly describing it as charge-sheet then the report cannot be treated as complaint. Thus, in my considered view if an officer of the RPF conducted an enquiry in accordance with the provisions of the Act and submits a report then the same is a complaint even if it is wrongly headed or termed as charge-sheet. The cognizance taken on the basis of the said report cannot be treated as the cognizance taken on the police report or charge-sheet for the simple reason that it is not a police report as defined under the Code of Criminal Procedure. Therefore, the order taking cognizance cannot be held to be bad in law on the ground of minor and insignificant defect in describing the complaint as charge-sheet. 11. In the present case it is not disputed that enquiry has been conducted under Section 1 of the Act in accordance with the provisions of the Act and thereafter the report has been submitted. The said report on the ground mentioned above has to be treated as complaint and cognizance taken on the basis of the said report is not bad in law. 12. In the result, there is no merit in this application, according, it is dismissed.