Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 670 (CAL)

Prakash Singh v. B. D. Bhattacharjee

2002-10-08

PRADIP KUMAR BISWAS

body2002
JUDGMENT PRADIP KUMAR BISWAS, J. 1. This is an application under section 401 read with section 482 of the Code of Criminal Procedure filed at the instance of the accused/petitioners, Prakash Singh & three others seeking to quash the proceedings in Case No. 93C of 2001 under sections 144/146 of the Railways Act, 1989 pending before the Court of the learned Judicial Magistrate, 6th Court, Howrah. 2. The short facts leading to the filing of the revisional application are as follows. 3. It was alleged in the complaint that on 12.01.2001 between 5.30 to 7.30 hours, during massive raid, the members of the R.P.F. at Howrah Station found the accused/petitioners hawking at the platform premises and at the sub-way complex and in spite of specific warning not to hawk at the said places the accused/petitioners went on hawking and were arrested by the R.P.F. staff alleging commission of offences under sections 144/146 of the Railways Act. 4. It was also alleged that the offences complained of in this case are bailable offences, but the officers conducted the arrest did not grant the accused/petitioners bail and produced them before the learned Magistrate and they were granted bail by the learned Magistrate. 5. It has further been alleged that a prosecution report was submitted by the Inspector, R.P.F., O.E. and the case was transferred to the Court of the Judicial Magistrate, 6th Court, Howrah for disposal. 6. The learned Judicial Magistrate by the order dated 22.3.2001 fixed the case on 20.4.2001 for evidence before charge but however, on the said date the prosecution could not examine any witness and the case was adjourned. 7. It has further been alleged that the learned Magistrate in the concerned case totally misdirected himself by fixing the date for evidence before charge, although offences under section 144 of the Railways Act provides maximum punishment to one year and offence under section 146 of the said Act provides maximum punishment of 6 months. 8. It has further been alleged that the R.P.F. was constituted under the Railways Protection Force Act, 1957 and the members of the said force had been conferred with definite powers and duties and as such the members of the aforesaid force is not empowered to do any act in excess to the powers conferred upon them. 8. It has further been alleged that the R.P.F. was constituted under the Railways Protection Force Act, 1957 and the members of the said force had been conferred with definite powers and duties and as such the members of the aforesaid force is not empowered to do any act in excess to the powers conferred upon them. Under the provisions of the said Act, the members of the Force, although they may be treated as Railways servant, yet, they were not even entitled to arrest the accused/petitioners, and further to submit prosecution report by way of conducting any enquiry or investigation and even in a case of a cognizable offence, the members of the Force could arrest the offenders but are not entitled to register any case, or to investigate itself, but to hand over the offenders to a police officer and as such the prosecution report as has, been submitted in this case has got no legal sanctity and de hors the law vitiating thereby all further proceedings. 9. It has further been alleged that although the offences under sections 144 and 146 of the Railways Act, 1989 are non-cognizable offences, yet, under section 179 of the Railways Act, 1989 those persons could be arrested without warrant, but by any stretch of imagination, the prosecution report could not be treated as a charge-sheet, but the same ought to have been treated as a complaint. In such event, the learned Magistrate was required to take cognizance under section 190(1)(b) of the Code of Criminal Procedure but in the four corners of the Order-Sheet, there is no whisper that cognizance was ever taken in this case treating the same as complaint vitiating thereby all further proceedings. 10. Accordingly, being aggrieved by and dissatisfied with the aforesaid order passed by the learned Magistrate regarding continuation of the aforesaid proceeding, the petitioners have come up before this court seeking for the aforesaid relief alleging that the impugned proceeding is wholly unwarranted and that the Railway Protection Force has got no manner or authority to investigate into the impugned offence and they had also no authority to submit any prosecution report against the petitioners. Hence, this prayer. 11. Hence, this prayer. 11. This application has been opposed by the Opposite Party No. 1, Inspector, R.P.F. Eastern Railway alleging that under the Railways Act, as also under the provisions of the Railways Protection Force Act, the concerned authority has every power to arrest the accused petitioners and on production before the concerned Magistrate and whatever investigation/enquiry has been conducted in this case was done pursuant to the order of the learned Judicial Magistrate and that with regard to trial of this case following warrant procedure, no illegality has been committed by the learned Magistrate inasmuch as the accused persons will get wider scope to agitate their grievances in such a proceeding. Accordingly, they pray for rejection of this application. 12. It has also been contended on behalf of the Opposite Party No. 1 that in view of the provisions of section 10 of the Railway Protection Force Act, 1957 (hereinafter referred to as Act 23 of 1957) the members of the Force are regarded as Railways servants within the meaning of the Indian Railways Act, and as such in view of the provisions of section 179 of the Railways Act, 1989 the R.P.F personnel is entitled and authorised to arrest any person committing offence mentioned therein without warrant or other written authority by any Railway servant or police officer not below the rank of head constable and here in this case since the allegation against the present petitioners were under sections 144/146 of the Railways Act,1989, the R.P.F. personnel was very much within their competence to arrest such persons committing such offence, and in fact after the arrest, the petitioners were produced before the Magistrate within the permissible period and the subsequent action whatever taken in connection with this case that was taken under the order of the ld. Magistrate. So, there is no illegality whatsoever in continuing with the proceeding and in this connection they have also placed reliance on certain decisions reported in Satvinder Kaur vs. State Government of N.C.T. of Delhi & another, AIR 1999 SC 3596 & State of Karnataka vs. M. Devendrappa & another, 2002(3) SCC 89 . 13. From the side of Opposite Party No. 2. State of West Bengal represented by ld. 13. From the side of Opposite Party No. 2. State of West Bengal represented by ld. Advocate General, it has been contended that in an offence of this kind, the R.P.F. Authority has no power of investigation as enjoined by them in connection with offences under R.P. (U.P.) Act, 1966. So, in this particular case, the R.P.F. Authority after arrest of the concerned persons could not proceed with the investigation of the case and/or to file prosecution report before the Court and what they were required to do is that they were required to file a specific case before the concerned G.R.P.S. for taking appropriate action and filing of final report in a proceeding of this nature for initiating action by the Court is, therefore, unauthorized. 14. I have heard the learned counsel appearing for the parties at length. 15. In the instant application, the petitioners have come up with the prayer for quashing of the proceeding alleging mainly that in this case in violation of the mandatory provisions of the Act itself, the prosecution agency precisely, the R.P.F. personnel, although regarded as Railway servants, have acted in excess to the jurisdiction conferred upon them in submitting prosecution report before the concerned court, when under the provisions of the Railways Act, 1989 or under the Railway Protection Force Act, 1957, R.P.F. personnel have no authority to investigate into the offence involved and here in this case, as it appears from the materials on record, the ld. Magistrate initiated action on the basis of the Enquiry Officers report by his order dated 23.02.2001 treating the said report as a report in final form and without treating the same as a petition of complaint. 16. True it is, that as per the reported decisions, in the case of State of Karnataka vs. M. Devendrappa & another (supra) the power regarding quashing of the criminal proceeding should be exercised ex debito justitiae to do real and substantial justice and to prevent abuse of the process of the Court, but, it should not be exercised to stifle legitimate prosecution. 17. In the case reported in Satvinder Kaur (supra) it has also been held that FIR cannot be quashed by High Court under section 482 on the ground that police station officer of particular P.S. do not have territorial jurisdiction to entertain and investigate into the offence. 18. 17. In the case reported in Satvinder Kaur (supra) it has also been held that FIR cannot be quashed by High Court under section 482 on the ground that police station officer of particular P.S. do not have territorial jurisdiction to entertain and investigate into the offence. 18. But, here in this particular case, offence complained of being covered by the provisions of section 144 and section 146 of the Railways Act, 1989 the R.P.F. personnel, who are treated to be Railway servants by virtue of section 10 of Act 23 of 1957, have simple power of arrest and for production of such arrested persons before the concerned Magistrate within 24 hours of such arrest only as per provisions of section 179 of the Railways Act, 1989. Up to that stage, it was quite all right and in consonance with the provisions of the Act, but the R.P.F. authority, in my humble opinion, has exceeded its jurisdiction in filing the report in final form in this case before the ld. Magistrate for initiating action by the Court against the petitioners and since R.P.F. authority had no legal sanction or authority in proceeding with the investigation in respect of the offences under the Railways Act, 1989, although they had some power under section 8 of the Railway Property Act, 1966 to proceed with an enquiry into the charge, yet, in the instant case, the offence complained of being covered by the provisions of the Railways Act, 1989 and not under R.P. (U.P.) Act, 1966, the power of investigation as enjoined under section 8 of Railway Property Act, 1966 cannot be invoked by the R.P.F authority in this case. 19. Here, in the instant case, the report submitted by the R.P.F. authority as enquiring officer is, therefore, absolutely without jurisdiction and section 179 of the Railways Act, 1989 only provides them with the power to take them before a court within the period prescribed, but nowhere it has been authorised by the Act itself, to proceed with the enquiry or to submit a report in final form against such accused persons and here in this case, following the provisions of section 14 of the Railways Act, 1989, the enquiry or the investigation should have been made in terms of the order of the Court. 20. 20. So, upon hearing the parties before me and perusing the materials available before me, it is abundantly clear that in the instant case the learned Magistrate has acted on the report of the E.O., treating it to be the final report and proceeded with this case against the present accused/petitioners. 21. From the scrutiny of the order-sheet and the materials on record, I also find that nowhere the ld. Magistrate has treated the said report as complaint as defined in section 2(d) of Cr. P.C. and thereafter had taken cognizance under section 190(1)(a) of the Code of Criminal Procedure. Now, that being the position, upon perusal of the materials available and in view of the findings recorded above, I am rather prompted to hold that the learned Magistrate in the instant case has committed serious illegality in proceeding with the present case against this accused/petitioners which is not at all covered by the provisions of section 60 of the Cr. P.C. 22. That being the position the continuation of the present proceeding against the petitioners will be certainly a mere abuse of the process of law and as such the same should be quashed. 23. In view of the foregoing, the present criminal proceeding being Case No. 93C of 2001 under sections 144/146 of the Indian Railways Act, 1989 pending in the court of Judicial Magistrate, Howrah should be quashed. 24. In the result, the application succeeds. 25. The criminal proceeding being Case No. 93C of 2001 under sections 144/146 of Indian Railways Act, 1989 is, thus, quashed. 26. Let a copy of this order be sent down to the learned Lower Court for information and necessary compliance. Revisional application succeeds.