ORDER This application has been filed for quashing the order dated 26.08.2003 passed by Judicial Magistrate (Railways), 1st Class, Kiul in G.R. No. 49 of 2000/Trial No. 874 of 2003. 2. Brief facts of the case are that on the written report of Shri Milon Kanti Ghosal, Senior Divisional Cashier, Eastern Railway, Maida, a case under Sections 406, 409, 120-B/34 of Indian Penal Code (in short "I PC") was registered as G.R.P. Jamalpur P.S. Case No. 15 of 2002 against the petitioner and three others, namely, Subhojit Datta, Senior Cashier, Tuntun Choudhary, Junior Cashier and Rama Shankar Singh, Cash Peon. Cognizance of the case was taken by Judicial Magistrate (Railways), 1st Class, Kiul on 13.11.2000 under Sections 409 and 120-B/34 of I P C and by his order dated 26.08.2003, the Judicial Magistrate (Railways) recorded an order of acquittal for co-accused Rama Shankar Singh giving him benefit of doubt and he was discharged from the liabilities of his bail bonds because he was on bail during trial but so far petitioner and other two co - accused persons, namely, Subhojit Dutta and Tuntun Choudhary are concerned, the learned Magistrate held them guilty and referred the case under Section 325 of Code of Criminal Procedure (in short "Cr PC) to Chief Judicial Magistrate, Munger observing that they deserve more punishment than that of which he was empowered to impose. Against his order, petitioner preferred Criminal Revision No. 395 of 2003 which, after hearing, was dismissed by Additional Sessions Judge IX, Munger. Now the petitioner has come up before this Court making prayer for quashing the order dated 26.08.2003 passed by Judicial Magistrate (Railways) by which he has referred the case of petitioner and other two co - accused persons under Section 325 of Cr PC to Chief Judicial Magistrate, Munger for enhanced punishment. 3. Now the petitioner has come up before this Court making prayer for quashing the order dated 26.08.2003 passed by Judicial Magistrate (Railways) by which he has referred the case of petitioner and other two co - accused persons under Section 325 of Cr PC to Chief Judicial Magistrate, Munger for enhanced punishment. 3. It will not be out of place to mention here that initially in para - 1 of application under consideration, it was stated that this application was filed for quashing the order dated 10.02.2004 by which learned Additional Sessions Judge IX, Munger had refused to set aside the order of Judicial Magistrate (Railways) passed in G.R. Case No. 49 of 2000/Trrrial No. 874 of 2003 and in last paragraph, further prayer was made that during the pendency of this application, further proceeding of Court of Additional Sessions Judge IX in Criminal Revision No. 395 of 2003 be stayed. On 03.08.2004 when further proceeding of criminal revision No. 395 of 2003, as prayed for on behalf of the petitioner, was stayed, petitioner made correction in the application by which order dated 26.08.2003 of Judicial Magistrate (Railways) passed in G.R. Case No. 49 of 2000/Trrial No. 874 of 2003 was sought to be quashed and stay of further proceeding of this case was sought and it was allowed. Smt. Anjana Prakash, learned Senior Counsel of petitioner submits that since Criminal Revision No. 395 of 2003 had already been disposed of on 10.02.2004 and the present application was filed on 16.07.2004, therefore, there was no question of making any prayer for staying further proceeding of the aforesaid criminal revision and this itself shows that there was typing error in application when it was presented before this Court which has now been corrected. The result of correction made on behalf of the petitioner in the application and the submission of learned Senior Counsel of petitioner amount that now the present application is for deciding the validity of order dated 26.08.2003 passed by Judicial Magistrate (Railways) in G.R. Case No. 49 Of 2000/Trrial No. 874 of 2003, the quashing of which has been sought. 4. Adverting to the merit of the case. Smt. Anjana Prakas made two fold arguments. 4. Adverting to the merit of the case. Smt. Anjana Prakas made two fold arguments. Her first submission is that charge in this case against the petitioner al d other co-accused was framed under Section 409/34 of IPC and the Court of Judicial Magistrate (Railways) is a Special Court established for trial of cases under Railway Properties (Unlawful Possession) Act (in short URF (UP) Act"), therefore, cognizance under general offence and not for any offence under RP (UP) Act, and its subsequent trial by Judicial Magistrate (Railways) was totally beyond his jurisdiction. This submission is stated in paras-5 and 6 of the application also. This argument is without any basis because a Court of a Judicial Magistrate (Railways) is not established only to try the cases under RP (UP) Act. Earlier Courts of Magistrates (Railways) were established to deal with all cases registered by Government Rail Police Station (GRP) for their respective areas mentioned in the notification against names of Judicial Magistrates (Railways). By a notification dated 22.11.1990 issued by Law (Justice) Department, Government of Bihar, ail the Judicial Magistrates (Railways) were empowered to take cognizance and try the cases of RP. (UP) Act also of their jurisdiction. By this notification, Judicial Magistrates (Railways) were designated Special Magistrates for taking cognizance and trial of cases under RP (UP) Act and by this notification, additional power for dealing with the cases under RP (UP) Act were vested to them and it does not mean that their power to try cases in respect of other general offences not falling under RP (UP) Act committed in their respective areas was taken away and they were authorised to deal with the cases of RP (UP) Act only. The alternative submission in this regard is that in the charge framed by Court below, the words - Government money (Railway) has been used and Section 2(d) of RP (UP) Act defines that “Railway Property" Includes any goods, money or valuable security or animal, belonging to, or in the charge or possession of, a Railway administration there fore, this case attracts the provisions of RP (UP) Act. This argument is also not acceptable because RP (UP) Act is in respect of unlawful possession of Railway property and in the present case allegation against the petitioner and other co-accused persons was that they being Railway employees misappropriated Railway money which they had brought from Maida to Jamalpur for payment to Railway employees. Admittedly, petitioner and other co-accused persons were Senior Cashier, Junior Cashier and Cash Peon. They were tried for an offence under Section 409/34 of IPC. The only penal provision in RP (UP) Act is Section 3 which is for possession of any Railway property reasonably suspected of having been stolen or unlawfully obtained. The present case is not the case of unlawful possession of any Railway property. It is a case of entrustment of Railway property and its• subsequent misappropriation. The constitution of Courts of Judicial Magistrate (Railways) and subsequently empowering them as Special Courts for trying offences under RP (UP) Act also does not mean that any offence committed in their jurisdiction will always be tried under the provisions of RP (UP) Act. If the offence committed is not in respect of unlawful possession of Railway property and it is of a general nature, the Judicial Magistrate (Railways) is competent to try it in general laws if it is committed within his jurisdiction and he is authorised to try such case according to general law. 5. The second argument advanced on behalf of petitioner is that the Court below has convicted the petitioner and other two co-accused persons and, thereafter, referred the case to Chief Judicial Magistrate, Munger under Section 325 of Cr. PC observing that the accused persons deserve severe punishment than the punishment which he could have awarded to them. Smt. Anjana Prakash has argued that as per the provisions of Section 325 of Cr.P.C. if a Magistrate after hearing the evidence of prosecution and accused is of the opinion that accused is guilty and deserves a punishment severe than which such Magistrate is empowered to inflict he after recording his opinion may submit his proceeding and forward the accused to Chief Judicial Magistrate to whom he is subordinate. According to her Section 325 of Cr. According to her Section 325 of Cr. PC does not require that Magistrate will also convict the accused and in the present case not only the learned Magistrate has held the petitioner and other two co-accused persons guilty but he has convicted them also which is against the express provision of law. Relying upon an authority reported in the case of Prayag Gope and 4 Others Vs. The King-Emperor, AIR 1924 Patna 764, it has been argued that in such a case, conviction by a Magistrate is not proper and on this ground alone, the order of learned Magistrate cannot be upheld. It is true that in the aforesaid authority, it has been observed that “After an expression of opinion as to the petitioners' guilt, the Magistrate should have forwarded the case without any record of conviction" but then I find that order of Magistrate was not quashed because after reference when the petitioners were convicted and sentenced, their conviction under Section 379 of IPC was set aside but their conviction under Sections 143 and 144 of IPC was reduced to the period already undergone and it was upheld. This view has been taken in the case of Pagla Kahar and Another Vs. Emperor, AIR (33) 1946 Patna 412, where the authorities relied upon by learned counsel of petitioner has been referred as 5 PLT 571 by observing as follows: "2. ... ... ... ... ... ... ... We have also to remember that Magistrates with powers of second and third class may use expressions which are unhappy, but I do not think there is anything in Section 349 to suggest that, if the Magistrate states that he convicts an accused, that necessarily the proceedings under Section 349 are vitiated and the reference to the Sub-Divisional Magistrate under that section is illegal. Reading the order as a whole, I am of the opinion that the second class Magistrate in this case meant no more than this that in his opinion the accused were guilty and such of those as had previous conviction, deserved a higher sentence than he could inflict and accordingly he was making a reference under Section 349. Even in the decision of this Court in 5 P.L.T 571 the conviction of the accused was not set aside but the sentence was reduced having regard to the circumstances of that case. Even in the decision of this Court in 5 P.L.T 571 the conviction of the accused was not set aside but the sentence was reduced having regard to the circumstances of that case. I think one may well be justified in saying that at best it was irregular for the second class Magistrate to have stated that he convicted the accused, but it is on irregularity which ,does not vitiate the proceedings." 6. In another decision reported in Rang Bahadur Rai and Others Vs. The King, AIR (36) 1949 Patna 317, it has been observed as follows:- "Mr. Ghosal next pointed out that the learned trying Magistrate had concluded his judgment by of Serving "In the end, therefore, I find them guilty and convict them" and had gone on to explain why he referred the case under Section 349. It was, of course wrong for the learned trying Magistrate to pronounce a conviction, but it is quite clear that he merely intended to refer the case to the Sub-Divisional Magistrate, leaving it to him to convict and pronounce such sentence as appeared to him suitable and it is also quite clear that the learned Sub-Divisional Magistrate dealt with the reference in that way, as he himself has written a very full and clear judgment. In these circumstances, the passage in the judgment of the learned trying Magistrate to which I have referred, must be regarded as a mere "surplusage and as a legal nullity". Video Emperor Vs. Narayan Dhaku Bhil, 52 Bom. 456: (A.I.R. (15) 1928 Bom. 240: 29 Cr. L.J. 904)". 7. The aforesaid decisions have been cited in order to meet the submission made on behalf of the petitioner that learned Magistrate in his order referring the case under Section 325 of Cr. PC to Chief Judicial Magistrate has passed order of conviction but then it is very surprising that why this argument has been put forward when the order of learned Magistrate nowhere shows that he has passed any order of conviction. PC to Chief Judicial Magistrate has passed order of conviction but then it is very surprising that why this argument has been put forward when the order of learned Magistrate nowhere shows that he has passed any order of conviction. On the contrary, in his order, he has stated that "' am of the opinion that all the three accused persons namely Subhojit Datta, Tun Tun Choudhary and Ajay Kumar deserve more severe punishment than that for which , am empowered and hence instead of convicting them I am submitting the proceedings of this case under the provision of Section 325 of the Code of Criminal Procedure to the Court of Chief Judicial Magistrate, Munger and direct all the three accused persons namely Subhojit Datta, Tun Tun Choudhary and Ajay Kumar to appear in the Court of Chief Judicial Magistrate, Manager positively on 10.09.2003 for further action. 8. Considering the entire materials on record, I find no merit in this application which is, accordingly, dismissed.