Patna High Court
Mahabir Prasad And Ors. vs The State Of Bihar on 12 March, 1975
Equivalent citations: 1975CRILJ1951
ORDER Uday Sinha, J.
1. By this application in revision the petitioners have prayed for setting aside the order of learned Munsif-Magistrate, Dhanbad dated the 22nd of December, 1970 which charges have been framed against them under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 [hereinafter referred to as 'the Act'] on the following averments;
2. On receiving confidential information on the 21st of December, 1969 at 3 A. M, in the night, that some thieves had been seen taking out rods and pipes from the goods train in Patherdih railway yard and that they had been seen being taken in the premises of Mahabir Prasad and also learning that a car bearing number WBJ 1138 had also been moving about on the Kacha road between the railway yard and the premises of Mahabir Prasad, the Officer-in-Charge of Jorapokhar police station Shri R. N. Prasad raided the premises of Mahabir Prasad on the same day. Mahabir Prasad claimed to be the licensee of Patherdih Foundry Engineering Works of which he was the proprietor. In course of the raid some iron rods, nut bolts and slipper base were recovered. The Officer-in-charge thereafter on the basis of his own statement instituted a case under Section 414 of the Indian Penal Code and Section 3 of the Act. This first information report was drawn up on the 21st of December, 1969. at about 12.30 in the afternoon. After investigation into the said Jorapokhar P.S. Case No. 37 dated the 21st of December, 1969, the investigating Officer submitted charge-sheet against the petitioners in respect of the offences under Section 3 of the Act. No recommendation was made for prosecuting the petitioners under Section 414 of the Indian Penal Code. The charge-sheet was dated the 6th of July, 1970 and was put up before the learned Subdivisional Magistrate on the 7th of September, 1970 on which date the learned Magistrate took cognizance of the case under Section 3 of the Act and transferred it to Shri N.K. Prasad, Munsif-Magistrate First Class, Dhanbad for favour of disposal. On the 9th of December, 1970 the learned Magistrate adjourned the case to the 21st of December, 1970 for framing of charge. On the 21st of December, 1970 the learned Magistrate heard the parties on the point of framing charge against the accused (petitioners) where it was contended, as before this Court, that no report having been filed by any officer of Railway Protection Force, the learned Subdivisional Magistrate had no jurisdiction to take cognizance of the offence and, therefore, no charge could be framed against the petitioners. The learned Magistrate after hearing the parties by his order dated the 22nd of December, 1970 rejected the submissions urged on behalf of the petitioners on the ground that the illegality in investigation would not vitiate the trial unless it caused prejudice or miscarriage of justice.
3. Learned Counsel for the petitioners has reiterated before this Court the contention urged before the learned Magistrate. It was contended by Mr. Dabendra Narayan Sinha for the petitioners that, the Railway Property (Unlawful Possession) Act is a complete Code in itself and the members of the State Police Force have no right or obligation in the investigation of offences involving railway property. Section 5 of the Act lays down that notwithstanding anything contained in the Code of Criminal Procedure an offence under that Act shall not be cognizable. Section 5 of the said Act makes offences under the Act non-cognizable although Section 6 provides that any superior officer or member of the Force as defined under the Railway Protection Force Act 1957 may arrest any person who has been concerned in an offence punishable under the Act or against whom a reasonable suspicion exists, without any order from a Magistrate and without any warrant. Section 7 of the Act enjoins upon any person or authority arresting a person for an offence punishable under the Act, if the arrest was made by a person other than an officer of a Force to forward without delay to the nearest officer of the Force and the officers of the Railway Protection Force have been vested with the powers to enquire into the charge against any person arrested under the Act and to submit the report accordingly to a Magistrate for trial or otherwise. In the matter of holding inquiry the officers of the Railway Protection Force have been vested with powers to summon any persons whose attendance may be considered desirable for giving evidence as also producing any document. The persons so summoned are bound to attend either personally or by an authorised agent and shall be bound to state the truth under the penalty of being prosecuted under Section 193 of the Indian Penal Code. The inquiry thus contemplated by the Act is to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. Section 14 of the Act lays down that the provisions of the Act shall have effect notwithstanding anything inconsistent from that contained in any other law for the time being in force. Upon a basis of these provisions in the Act, learned Counsel for the petitioners urged that this Act, in regard to offences regarding unlawful possession of Railway Property Act has completely supplanted the Code of Criminal Procedure in regard to investigation, It was, therefore, contended that the police authorities had no jurisdiction to investigate into the offences relating to unlawful possession of railway property.
4. The argument thus submitted is attractive but devoid of any substance. Before proceeding to consider the validity of the submissions, I must record that the counsel for the State was of no assistance in deciding the points in issue.
5. As T have stated earlier, the case was instituted initially in regard to offences under Section 414 of the Indian Penal Code and Section 3 of the Railway Property (Unlawful Possession) Act, 1966. Section 414 of the Indian Penal Code is a cognizable offence and offences under Section 3 of the Act have been made non-cognizable in terms of Section 5 of the Act. Thus the police had started investigation into a set of facts which constituted cognizable as well as non-cognizable offences. The law is now firmly established that the police officer is fully within his powers to investigate into a set of facts which constitute cognizable as well as non-cognizable offences. The jurisdiction of the police is not ousted merely because the facts indicate commission of non-cognizable offences as well. Reference may be made to Pravin Chandra Modi v. State of Andhra Pradesh where it was observed that where the information discloses a cognizable as well as a non-cognizable offence, the police officer is not debarred from investigating into the non-cognizable offence which may arise out of the same faces. The bar laid down in Section 155(1) and (2) of the Code of Criminal Procedure 1898 must be confined to non-cognizable offences, but where the set of facts constitute cognizable as well as non-cognizable offences, the police would be fully within its right to investigate into those set of facts. The investigation by the police, therefore, cannot be said to be beyond its jurisdiction, bearing in mind that initially the case had been instituted as one in regard to an offence under Section 414 of the Indian Penal Code as well.
6. It was then contended by learned Counsel for the petitioners that the police not having found any case under Section 414 of the Indian Penal Code and having been of the opinion that an offence under Section 3 of the Act had been committed, it was its duty to have reported the matter to the Railway Protection Force, who would thereafter have been competent to take up investigation into the offence. I regret, I am unable to subscribe to the submission urged on behalf of the petitioners. The Railway Property (Unlawful Possession) Act debars investigation by the police only in regard to offences which fall only within the ambit of that Act and if the police was within its jurisdiction in investigating into the set of facts constituting the offence, as in any view it were, there is nothing to debar the police from submitting a report to the Sub-divisional Magistrate to the effect that an offence under Section 3 of the Act had been made out. It is another matter that the Sub-divisional Magistrate may not have taken cognizance upon the report of the police or he may have referred the matter to the Railway Protection Force for inquiry or investigation, but the powers of the police cannot be doubted on that score.
7. Whatever may have been the powers of the police "vis-a-vis offences under the Railway Property (Unlawful Possession) Act, the crucial question is did the Magistrate have jurisdiction to take cognizance of the offences alleged against the petitioners? That Act lays down a restriction on the police to investigate offences under the Railway Property (Unlawful Possession) Act, but there is no injunction upon a Court from taking cognizance of offences reported to it by authorities different from the Railway Protection Force. It will be useful to recall similar provisions in other Statutes where the Courts have been debarred from taking cognizance except upon the report of a particular officer. An instance, may be found in Section 11 of the Essential Commodities Act where it has been laid down that no court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant. Similar provisions are to be found in the Prevention of Food Adulteration Act, Section 34 of the Industrial Disputes Act, Section 105 of the Factories Act etc. Thus it the Parliament intended that Courts shall take cognizance only upon the report of the Railway Protection Force, a similar provision restraining Magistrates from taking cognizance without a report by the Force could have been provided for. In the absence of any such provision, it is not possible to hold that the learned Magistrate had acted without jurisdiction. All that learned Counsel for the petitioners has been able to contend is that the police had no authority to investigate into the offence, but the point which is being tested in this application is the action of the learned Magistrate in taking cognizance and in that regard no limiting circumstance is found in the Railway Property (Unlawful Possession) Act.
8. Whether the police officer was bound to forward the accused to the Railway Protection Force or not and whether the police could have submitted charge sheet or not is not the crucial question. The real question is could the Magistrate have taken cognizance of an offence which had been brought to his notice; The power of the Magistrate without any limiting factor is found in Section 190 of the Code of Criminal Procedure which lays down three sources on the basis of which a Magistrate may take cognizance of an offence. In my view, therefore, the learned Magistrate was fully within his jurisdiction to take cognizance of an offence which had been brought to his notice. It is useless to ponder over the question whether the cognizance had been taken in terms of Clauses (a) or (b) of Section 190(1) of the Code of Criminal Procedure. Even if the case were not covered by any of the two Clauses (a) or (b), the Magistrate will be fully within his Jurisdiction to take cognizance in terms of Section 190(1)(c) of the Code of Criminal Procedure. Support for this proposition may be found in the case of Abhinandan Jha v. Dinesh Mishra where it was observed in paragraph 15 that "if ultimately, the Magistrate forms the opinion that the facts, set out in the final report, constitute an offence, he can take cognizance of the offence under Section 190(1)(c), notwithstanding the contrary opinion of the police expressed in the final report." A similar view was expressed by the Supreme Court by A.N. Ray, J. in the case of R. N. Chatterji v. Havildar Kuer Singh reported in 1970 BLJR 1227 (SC) in paragraph 13. In that view of the matter, the action of the learned Magistrate in taking cognizance of the offence cannot be said to be illegal much less without jurisdiction.
9. For the reasons stated above, I am of the opinion that the Charges framed against the accused petitioners are neither illegal nor without jurisdiction. In that view of the matter, there is no substance in this application and it must be rejected. The petition is accordingly dismissed.