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2019 DIGILAW 1580 (ALL)

Keshav Narayan v. State Of U. P.

2019-07-03

SUDHIR AGARWAL

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JUDGMENT : Sudhir Agarwal, J. Heard Sri Praveen Kumar, Advocate holding brief of Sri Manish Tiwary, learned counsel for applicants; and, Sri Rajnish Kumar Rai, Advocate for complainant and Sri Syed Ali Murtaza, learned AGA for State of U.P. 2. This is an application filed under Section 482 Criminal Procedure Code, 1973 (hereinafter referred to as "Cr.P.C.") praying for quashing of proceedings of Case Crime No. 8 of 2003, under Section 3 of Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as "Act, 1966"), Police Station- D.L.W. Railway Protection Force (hereinafter referred to as "RPF") Post D.L.W. Varanasi. 3. Case was registered at P.S. RPF Post D.L.W. Varanasi on 20.05.2003 alleging that a piece of Railway line was recovered from Vikas Singh and he was arrested with Railway property. When enquired from him, he told that applicants who were earlier Manager at petrol pump where he (Vikas Singh) was working, may be able to tell about the said property, since Railway property was lying at the petrol pump before employment of Vikas Singh. Vikas Singh was enlarged on bail by Sessions Judge, Varanasi vide order dated 24.05.2003. On 05.04.2004, Investigating Officer informed Additional Chief Judicial Magistrate, North Eastern Region, Varanasi about the investigation, he is making in the matter. These proceedings have been challenged by applicants on the ground that offence under Act, 1966 is not cognizable in view of Section 5 thereof, hence, Enquiry Officer has only option of making enquiry and file complaint and no procedure is prescribed whereunder he may approach Magistrate concerned to inform about the proceedings conducted by him. It is also submitted that from G.D. Entry dated 20.05.2003 at Serial No. 37, it cannot be said that any offence has been committed by applicants under Section 3 or 4 of Act, 1966 and, therefore, report submitted by Enquiry Officer before Additional Chief Judicial Magistrate, North Eastern Region, Varanasi on 05.04.2004 is totally misconceived. 4. Learned AGA could not dispute that offences under Act, 1966 are non-cognizable but said that recovery of Railway property from Vikas Singh and statement given by him show prima facie involvement of applicants also and in any case, the matter is still under investigation and, therefore, it cannot be said that proceedings are liable to be quashed and no offence against applicants is made out or the procedure adopted by Investigating Officer of RPF is patently illegal. 5. 5. Section 3 of Act, 1966 provides penalty for unlawful possession of Railway property. Section 6 authorizes a superior officer or member of Force to arrest any person who has been concerned in an offence punishable under Act, 1966 or against whom a reasonable suspicion exists of having been so concerned, without an order from Magistrate and without a warrant. Section 7 provides that any person arrested under Act, 1966, shall, if the arrest is made by a person other than the officer of the Force, to forward such person, without delay to the nearest officer of the Force. Section 8 of Act, 1966 provides: "8. Inquiry how to be made -- (1) When an officer of the Force receives information about the commission of an offence punishable under this Act, or when any person is arrested by an office 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 persons. (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-- (a) if the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate; (b) if it appears to the officer of the Force that there is no sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the officer of the Force may direct, to appear, if and when so required, before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior." 6. In the present case, G.D. (Rojnamcha) No. 37 dated 20.05.2003 shows that after seizure of Railway property, Vikas Singh was interrogated and arrested. In the present case, G.D. (Rojnamcha) No. 37 dated 20.05.2003 shows that after seizure of Railway property, Vikas Singh was interrogated and arrested. The matter is still under enquiry and letter dated 05.04.2004 submitted to Magistrate concerned is neither a report within the meaning of Section 173 Cr.P.C. nor can be said to be a formal complaint referable to Section 200 Cr.P.C.. The matter is still at the stage of enquiry by officer of Force and according to his investigation, there is no reason to doubt that it shall not proceed in the manner as contemplated in law i.e. by filing of a complaint before Magistrate concerned under Section 200 Cr.P.C. and thereupon Magistrate may issue the process against accused under Section 204 Cr.P.C. Every document of Enquiry Officer of Force if addressed to Magistrate, cannot be treated to be a report under Section 173 Cr.P.C. and it cannot be said that he is acting illegally and not in the manner as provided in law. 7. In State of Bihar Vs. Chandra Bhusan Singh and Others, (2001) AIR SC 429, Court said as under: "Merely because the inquiry was held by a member of the Force having some similar powers as are possessed by an investigating officer, would not make the complaint to be a report within the meaning of Section 173 of the Code." 8. In Balkishan A. Devidayal, etc. v. State of Maharashtra, (1981) AIR SC 379, Court said that an officer conducting an inquiry under Section 8(1) of Act, 1966 has not been invested with all powers of an officer incharge of a police station making an investigation under Chapter XIV of Cr.P.C. He has no power to file a charge sheet before the Magistrate concerned under Section 173 of Cr.P.C.. The main purpose of Act, 1966 was to invest powers of investigation and prosecution of an offence relating to Railway property in RPF in the same manner as in a case relating to offences under the law dealing with excise and customs. The offences under Act, 1966 are non-cognizable which cannot be investigated by a police officer under Cr.P.C.. The result is that initiation of inquiry for an offence inquired into under Act, 1966 can be only on the basis of a complaint by an officer of the Force. The offences under Act, 1966 are non-cognizable which cannot be investigated by a police officer under Cr.P.C.. The result is that initiation of inquiry for an offence inquired into under Act, 1966 can be only on the basis of a complaint by an officer of the Force. Court also held that an officer of RPF could not be deemed to be a 'police officer' within the meaning of Section 25 of Evidence Act, 1872 and, therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of Act, 1966 cannot be excluded from evidence under the said section. 9. That being so, submission of applicants that RPF official is not proceeded in the matter in accordance with law at this stage by simply giving information vide letter dated 05.04.2004 in my view, is clearly erroneous and has no substance. Moreover, statement of Vikas Singh who was arrested by officer of the Force while recovering Railway property, stating that applicants can explain as to how Railway property was brought and kept at the petrol pump cannot be ignored and it cannot be said that no case against applicants is made out. Since the matter is still under investigation, hence, at this stage such a plea cannot be entertained. 10. Counsel for applicants has placed reliance on a Supreme Court's decision in State of Bihar Vs. Baidnath Prasad @ Baidyanath Shah and Another, (2002) AIR SC 64, wherein request was made for quashing of proceeding which was pending for six years but Court declined to do so. Court observed that delay is attributable to accused as they challenged various orders passed in different proceedings and, therefore, accused cannot be allowed to take advantage of delay for which they are substantially responsible. 11. Reliance is also placed on behalf of applicants on a Single Judge judgment in Ishwar Saran Shukla and Another Vs. State of U.P., (1999) CriLJ 1075 (Ald), wherein Court found that because complainant failed to appear on three dates, Magistrate has rightly declined to accept the request of dismissal of complaint and discharge of accused person by invoking Section 249 Cr.P.C.. State of U.P., (1999) CriLJ 1075 (Ald), wherein Court found that because complainant failed to appear on three dates, Magistrate has rightly declined to accept the request of dismissal of complaint and discharge of accused person by invoking Section 249 Cr.P.C.. Therein, reliance was also placed on a Supreme Court's decision in Common Cause, a Registered Society v. Union of India, (1996) AIR SC 1619, wherein Court declined to accept the request of accused for dropping of case since case was pending for more than two years observing that an offence under Section 3 of Act, 1966 does not fall in such category since offence therein is punishable with imprisonment for a term which may extend to five years, or with fine, or with both. 12. I may also add that even otherwise, if a report submitted by a police officer in a non-cognizable offence, in view of Explanation to Section 2(d) of Cr.P.C., such report can be deemed to be a complaint and Magistrate can proceed accordingly but for that reason alone proceedings are not to be quashed since report submitted by a police cannot be held to be without jurisdiction merely because proceedings were instituted by police officer after investigation, when he had no power to investigate. Here also, I am fortified in taking the above view by the observations made by Supreme Court in State of Bihar Vs. Chandra Bhusan Singh (supra), where, referring to Explanation to Section 2(d) of Cr.P.C., Court said as under:- "Section 2(d) of the Code emcompasses a police report also as a deemed complaint if the matter is investigated by a police officer regarding the case involving commission of a non-cognizable offence. In such a case, the report submitted by a police officer cannot be held to be without jurisdiction merely because proceedings were instituted by the police officer after investigation, when he had no power to investigate." 12. In view of above discussion, I do not find that proceedings in the present case can be said to be without jurisdiction and liable to be quashed. 13. Application lacks merit and is accordingly dismissed.