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Calcutta High Court · body

2001 DIGILAW 734 (CAL)

LOCHON SAHU ALIAS SHIOLOCHAN SHAU v. STATE

2001-12-07

P.K.BISWAS

body2001
P. K. BISWAS, J. ( 1 ) THIS revisional application under section 482 of the Code of Criminal Procedure has been filed by the petitioner seeking to quash the proceeding being C R 198/95 pending before the Court of learned Sub-Divisional Judicial Magistrate, Siliguri, which arose out of RPF Post Siliguri Junction Case No. 2 (9)/95 under section 3 (a) of the Railway Property (Unlawful Possession) Act, dated 16. 9. 95. ( 2 ) THE facts leading to the filing of this revisional application may be summarized as follows :-rpf Post Siliguri Junction case No. 2 (9)/95 dated 16. 9. 95 under section 3 (a) of the Railway Property (Unlawful Possession) Act, (hereinafter referred to as the [r. P. (U. P.) Act] was started on the basis of a complaint lodged by one Dilip Roy with the Officer-in-Charge of the said RPF Post, inter alia, alleging that on 16. 9. 95 at about 8. 30 hrs. acting on a secret information the defacto complainant and his force were in ambush near railway over-bridge of Siliguri Junction and found one cycle ricksaw near railway market, Siliguri. It was alleged that two person were in that cycle ricksaw and on suspicion they were intercepted and the person who was sitting on the ricksaw tried to flee away, but both of them were nabbed and on search 10 Nos. of railway ACEP were allegedly found concealed in the space under ricksaw seat-cover and on interrogation those person disclosed their names as Raju Rai of Panchanan Colony and Somnath Biswas of Patti Colony, Siliguri. They could not, however, give any satisfactory explanation. Nor they could produce any valid documents in support of possession of such articles and on further enquiry those nabbed persons disclosed that they had procured those materials from railway premises of Siliguri Junction and they were going to dispose of the same to one Mani Biswas of Siliguri and the present petitioner. They however, further disclosed that previously also railway materials were disposed of by them to the present petitioner and said Mani Biswas. Thereafter, those articles were seized and those nabbed persons were arrested. ( 3 ) IT has further been alleged that on 16. 9. 95 at about 12. 30 hrs. They however, further disclosed that previously also railway materials were disposed of by them to the present petitioner and said Mani Biswas. Thereafter, those articles were seized and those nabbed persons were arrested. ( 3 ) IT has further been alleged that on 16. 9. 95 at about 12. 30 hrs. some police personnel came to the shop cum godown of the present petitioner during his absence and in presence of his employees they made a search of the godown without having any search warrant from the concerned Court and at that time, they seized certain articles therefrom and on query, it was disclosed that those articles were seized in connection with the aforesaid case. ( 4 ) ON such allegation, the aforesaid RPF Post Siliguri Junction Case was started and the two arrested persons were produced before concerned Court on 17. 9. 95. ( 5 ) THE main allegation of the petitioner is that in connection with this case, no order from the learned Magistrate of the concerned area was secured for searching the shop-cum-godown and the defacto complainant searched and seized certain articles from the godown of the present petitioner in gross violation of the provisions of law, specially the provisions of section 10 of the R. P. (U. P.) Act. Hence, this prayer. ( 6 ) ALTHOUGH notice was directed to be issued upon the RPF authority and in fact, even after issuance of such notice (as shown through A/d Card), none has appeared on behalf of the RPF authority to oppose this case. ( 7 ) I have heard the learned counsel, Sri Milan Mukherjee for the petitioner. Hence, this prayer. ( 6 ) ALTHOUGH notice was directed to be issued upon the RPF authority and in fact, even after issuance of such notice (as shown through A/d Card), none has appeared on behalf of the RPF authority to oppose this case. ( 7 ) I have heard the learned counsel, Sri Milan Mukherjee for the petitioner. Drawing my attention to the provision of section 10 of the R. P. (U. P.) Act, it has been submitted by the learned counsel appearing for the petitioner that section 10 of the R. P. (U. P.) Act provides in clear an unambiguous words that application for issuance of such warrant has to be made to the Magistrate having jurisdiction over the area in which that place is situated, and whenever a search of any premises is to be made in connection with deposit or sale of railway property in respect of which there are reasons to believe that any place is used for the deposit or sale of railway property which had been stolen or unlawfully obtained, then the search warrant must have to be issued in accordance with the requirement of section 10 of the R. P. (U. P.) Act. ( 8 ) DRAWING my attention to the petition of complaint dated 16. 9. 95 it has been submitted by Sri Mukherjee that although the premises of the present petitioner was searched in presence of the local witnesses, yet, the complaint petition did not disclose that prior to conduct of any such search permission of the authorities/magistrate was obtained in accordance with the requirements of section 10 of the R. P. (U. P.) Act. 95 it has been submitted by Sri Mukherjee that although the premises of the present petitioner was searched in presence of the local witnesses, yet, the complaint petition did not disclose that prior to conduct of any such search permission of the authorities/magistrate was obtained in accordance with the requirements of section 10 of the R. P. (U. P.) Act. ( 9 ) REFERRING to the above petition of complaint, it has further been submitted by him that seizure of the alleged railway articles from the rickshaw and nabbing of those persons in connection with above recovery were in themselves a clear, distinct and complete offence and as such for searching the premises of the present petitioner, the permission of the concerned Magistrate should have been taken by the complainant in accordance with the provisions of section 10 of the R. P. (U. P.) Act, and that having not been done in this case, the present proceeding against the petitioner cannot at all be proceeded with and continuation of such proceeding shall be regarded as a mere abuse of the process of the Court as whenever a search of any premises is to be made in connection with deposit or sale of the Railway property in respect of which there is reason to believe that they are stolen or unlawfully obtained, then search warrant must be issued in accordance with the requirements of section 10 of the R. P. (U. P.) Act. ( 10 ) I have perused the relevant provision of section 10 of the Act along with provisions of section 8 of the R. P. (U. P.) Act. ( 11 ) IN order to appreciate the grievance made on behalf of the petitioner, it is appropriate to refer some of the provisions of the R. P. (U. P.) Act. "section 8 : Enquiry how to be made against arrested persons - (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. "section 8 : Enquiry how to be made against arrested persons - (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 may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898) when investigating a cognizable case: provided that""section 10 : Issue of search-warrant - (1) If an officer of the force has reason to believe that any place is used for the deposit or sale of railway property which had been stolen or unlawfully obtained, he shall make an application to the Magistrate having jurisdiction over area in which that place is situate, or issue of a search-warrant. (2) The Magistrate to whom an application is made under sub-section (1) may, after such inquiry as he thinks necessary, by his warrant authorize any officer of Force - (a)to enter with such assistance as may be required, such place; (b) to search the same in the manner specified in the warrant; (c) to take possession of any railway property therein found which he reasonably suspects to the stolen or unlawfully obtained; and (d) to convey such railway property before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, otherwise to dispose thereof in some place of safety" ( 12 ) ENQUIRY under section 8 (1) of the R. P. (U. P.) Act starts when any person has been arrested under section 6 of the aforesaid act by an officer of the Force or he has been arrested by any other member of the Force under section 7 and is forwarded to the R. P. F. Officer. Such arrest can be made by either of them when any person has committed or is reasonably suspected to have committed the offence under sections 3 and 4 of the R. P. (U. P.) Act. Such arrest can be made by either of them when any person has committed or is reasonably suspected to have committed the offence under sections 3 and 4 of the R. P. (U. P.) Act. ( 13 ) A careful scrutiny of the R. P. (U. P.) Act would disclose that it is a combination of both that is its own procedure for certain things and for remaining purposes, the provisions of Cr. PC have been made applicable. ( 14 ) NOW, looking into the provisions of section 165 of the Code of Criminal Procedure, it appears that the officer-in-charge of the Police Station or any Investigating Officer not below the rank of Sub-Inspector can conduct the house search without a search warrant during the investigation of any case. This section has been made applicable to the R. P. F. Officers also during an Enquiry under the R. P. (U. P.) Act by virtue of section 8 (2) of the said Act. Therefore, the Officer of the Force can also conduct a house search during an enquiry under the Act without a search warrant under certain conditions as laid down under section 165 of the Cr. PC. ( 15 ) THEREFORE, in making the reasonable interpretation of section 10 of the R. P. (U. P.) Act in the above light, it appears to me that the aforesaid section 10 of the R. P. (U. P.) Act empowers the R. P. F. Officers to conduct a house search, when he is not enquiring into any case, after obtaining prior permission of the Magistrate of the area as envisaged in section 10 of the R. P. (U. P.) Act. ( 16 ) BUT, however, in the present case, as it appears from the available materials, specially the complaint submitted by the RPF Officers, it is clear that the impugned search was conducted in course of any enquiry into the case and consequently, the question of obtaining any search warrant before conducting said search does not and cannot arise at all. ( 17 ) I am further to hold that while conducting an enquiry under this Act, the R. P. F. Officer is competent to conduct search and seizure of the premises in respect of which there are reasons to believe that such premises is used for the deposit or sale of Railway Property which had been stolen or unlawfully obtained subject to the conditions as laid down under section 165 of the Cr. PC. ( 18 ) THAT being the position in the instant case, I find nothing wrong with the search and seizure, conducted by the RPF Officer in the premises of the present petitioner. In view of the above, I find to sufficient merit in this revisional application to quash the present proceeding. The revisional application, is, therefore, dismissed. Let a copy of this order be sent down to the learned Court below for information and necessary compliance with a direction to proceed in this case as expeditiously as possible. Application dismissed.