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1998 DIGILAW 381 (PAT)

S. M. Sheraz Ally v. State of Bihar

1998-05-11

LOKNATH PRASAD

body1998
Order In this application under Section 482 Cr.P.C. the petitioners have prayed for quashing the order dt. 14.5.97 passed in C/7 case no. 73 of 1996 arising out of Tata R.P.F. Post case no. 11 of 1996 thereby and thereunder the Railway Magistrate camp at Chaibassa took cognizance of the offence u/s. 3A of the Railway Properties (Unlawful Possession) Act, 1966. 2. The fact, in short, for the purpose of this application is that Inspector Railway Protection Force obtained a search warrant from the Railway Magistrate on 11.3.96 and conducted search in the premises of Shankar Singh Rolling Mill situate at Jawahar Nagar, Mango with the help of local police on 13.3.96 and recovered some articles as mentioned in the seizure list suspected to be the properties of the Railways and the investigation of the case was entrusted to Sri J. Manjhi, Assistant Sub-Inspector, RPF. The A.S.I., Railway Protection Force, after investigation, submitted Complaint case no. 15/97 as against these petitioners who are Manager and owner of the said Mill from where recovery of Railway properties were made and then through the impugned order the learned Railway Magistrate took cognizance of the offence u/s. 3A of the R.P. (U.P.) Act, 1966. 3. The only grievance of the petitioners is that in this case the alleged investigation and submission of the complaint by an officer of the rank of Assistant Sub-Inspector of Railway Protection Force is apparently illegal and against the provision of section 2(c) read with Section 8 of the said Act. In that view of the matter, the submission of complaint is without jurisdiction and consequently the complaint will not proceed and so the impugned order dt. 14.5.97 by the Railway Magistrate taking cognizance of the offence in Complaint case no. C7 case no. 73 of 1996 is bad in law and liable to be quashed. 4. Learned counsel in support of his contention relied upon a case of the Calcutta High Court reported in 1991 Eastern Criminal Cases page 474 (Cal) (Sultan Khan vs. State). On the other hand, counsel for the opp. party no. 2, that is the complainant in the instant case submitted that learned Single Judge of the Calcutta High Court completely ignored the entire provision of Section 2(c). On the other hand, counsel for the opp. party no. 2, that is the complainant in the instant case submitted that learned Single Judge of the Calcutta High Court completely ignored the entire provision of Section 2(c). In that view of the matter, the principle laid down in Sultan Khan's case (supra) is not a good law and is not to be relied upon and it was further contended that in similar situation when an investigation was made also by ASI of R.P.F., then it was held by a learned Single Judge of this Court that the charge-sheet filed by ASI concerned is to be treated as a complaint and so the trial will proceed. In a case reported in 1995 Vol. 2PLJR page 613 (Abdul Mayeed and others vs. State of Bihar). 5. So, the only question for consideration is if the A.S.I. Railway Protection Force actually is an 'officer' as defined under the Act and so competent to investigate and to submit a complaint u/s. 8 of the said Act. There is no two opinion that u/s. 8 it has been specifically provided that an officer of the Force is competent to make an enquiry as against allegations under the Act and he will have the same power as an officer-in-charge of a police station may exercise under Cr.P.C. 6. Thus only an officer of the Force is entitled under the said Act to proceed with the investigation and to submit complaint and then only the case will proceed. Section 2(c) defines 'officer of the Force'. It has been clearly provided officer of the Force means an officer of, and above the rank of A.S.I. appointed to the Force and includes a superior officer learned counsel for the petitioner made a submission on going through this provision that only officer above the rank of ASI of the Force is actually an' officer competent to proceed under the Act and similar view was taken by the learned Single Judge of the Calcutta High Court, that is, in Sultan Khan's case (supra). But on a plain reading of section 2(c) it can be said that 'officer of the Force' means 'an officer of and above the rank of Assistant Sub-Inspector' - meaning thereby that the officer of the Force will include also Assistant Sub-Inspector and above the rank. But on a plain reading of section 2(c) it can be said that 'officer of the Force' means 'an officer of and above the rank of Assistant Sub-Inspector' - meaning thereby that the officer of the Force will include also Assistant Sub-Inspector and above the rank. The learned Single Judge of the Calcutta High Court apparently took a different view ignoring the provision 'means an officer of' which indicates that even ASI of RPF is also included 'officer' of the Force. If that is so u/s. 8 the ASI RPF being the officer of the force is competent to make investigation and consequently to submit a complaint. In Abdul Mayeed's case (supra) decided by learned Single Judge of this Court, the investigation was conducted by ASI RPF which was also held to be valid. 7. From the discussions made above and on plain reading of section 2(c) and that of Section 8 of the RP (UP) Act, 1966, it can be said that ASI R.P.F. is also an officer of the Force as defined u/s.2(c) of the Act and, thus, competent to make investigation and to submit a complaint. If that is so in the instant case also the ASI R.P.F. was entrusted with investigation and after completing the investigation he submitted complaint against both the petitioners. So he is competent to do so under the Act and in that view of the matter, there is completely no illegality in taking cognizance of the offence vide order dt. 14th May, 1997 in C/7 case no. 73 of 1996 by the learned Railway Magistrate at Chaibassa. So there is no merit in this application and accordingly it is dismissed.