Karnataka High Court
Arokya Das @ Das Chinna Cowry Chinna @ ... vs State Of Karnataka on 2 September, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:35477
CRL.P No. 5986 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 5986 OF 2024
BETWEEN:
1. AROKYA DAS @ DAS CHINNA COWRY CHINNA
@ CHINNA SAVARI,
S/O FRANCIS ALIAS CHINNASAVARI,
AGED ABOUT 68 YEARS,
R/AT NO.808, B.M.ROAD,
ANDERSONPET,
K.G.F. - 563 113.
2. D. ANANDAN,
S/O S DASS,
AGED ABOUT 57 YEARS,
R/AT NO.273,
NEW MODEL HOUSE NORTH GILBERTS,
MARIKUPPAM
Digitally signed KGF RAILWAY STATION,
by KAVYA G
Location: High K.G.F. - 563 119.
Court of
Karnataka
3. D. JAYAPAL,
S/O DHANAPAL,
AGED ABOUT 64 YEARS,
R/AT NO.C-94, BUNGLOW,
KGF CLUB ROAD, OORGAUM,
K.G.F - 563 120.
4. MURALI K.C.,
S/O CHINNASWAMY K.M.,
AGED ABOUT 61 YEARS
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NC: 2024:KHC:35477
CRL.P No. 5986 of 2024
R/AT NO.44, 'F' BLOCK,
CHAMPIONREEF, CHAMPION POST,
WARD NO.14, K.G.F.
K.G.F. - 563 117.
5. A. MADALAI MUTHU,
S/O ANTHONEY,
AGED ABOUT 78 YEARS,
R/AT NO.109/1, MARRIED QRTS,
CHAMPIONREEF, K.G.F.
K.G.F. - 563 117.
6. ANBAZHAGAN M.,
S/O MOHAN RAJ,
AGED ABOUT 59 YEARS,
R/AT NO.13, 1 P.O BLOCK,
MARIKUPPAM RAILWAY STATION,
MARIKUPPAM,
K.G.F. - 563 119.
...PETITIONERS
(BY SRI. S JAGAN BABU., ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY SUB-INSPECTOR OF POLICE,
RPF POLICE,
BANGARPETE,
REPRESENTED BY S.P.P.,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2. SRI. ABHISEK KUMAR,
S/O SHAMBUNATH PRASAD,
AGED ABOUT 36 YEARS,
WORKING AS STATION MASTER,
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NC: 2024:KHC:35477
CRL.P No. 5986 of 2024
MARIKUPPAM, KGF TALUK,
KOLAR DISTRICT - 563 122.
...RESPONDENTS
(BY SRI.JAGADEESHA B.N., ADDL. S.P.P., FOR R1)
THIS CRL.P. IS FILED U/S 482 OF CR.P.C., PRAYING TO
QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.89/2019
ARISING OUT OF CR.NO.1269/2017 FOR THE OFFENCE P/U/S
147, 145(b), 174a OF RAILWAYS ACT, 1989 OF POST
COMMANDER/RAILWAY PROTECTION FORCE (INSPECTOR)
RAILWAY PROTECTION FORCE (RPF) BANGARPET, BANGALORE
DIVISION, SOUTH WESTERN RAILWAY, BANGARPET, KOLAR
DISTRICT - 563 122, NOW PENDING ON THE FILE OF PRL.
CIVIL JUDGE AND JMFC COURT AT BANGARPET.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
Petitioners accused Nos. 3 to 7 and 9 are before this Court calling in question proceedings in C.C.No.89/2019 arising out of Crime No.1269/2017 for the offences punishable under Sections 147, 145(b) 174a of Railways Act, 1989 of Post Commander/Railway Protection Force (Inspector)/Railway Protection Force (RPF), Bangarpet, -4- NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 Bangalore Division, South Western Railway, Bangarpet, Kolar District -563122 pending on the file of Principal Civil Judge and JMFC Court at Bangarpet.
2. Heard the learned counsel Sri. S. Jagan Babu appearing for the petitioners and learned Additional SPP Sri. Jagadeesha B.N. appearing for respondent No.1.
3. Learned counsel appearing for the petitioners submits qua accused Nos. 1 and 2 this Court in Crl.P.No.7801/2023 has quashed the proceedings and the reason so rendered for quashment are as follows:
"8. The afore-narrated facts are not in dispute. The incident happens on 19-10-2017. The incident is a railway roko agitation programme organized by political and of daily travelers organization demanding retention of old Marikuppam train rake, for the benefit of the people in and around KGF. Due to the railway roko agitation for 65 minutes the trains could not pass through the tracks. This resulted in the Officer of the Railway Station communicating a report to the concerned. The report reads as follows:-5-
NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 "From: Date: 19-10-2017 SM/MKM To IPF/BNP Sub: Detention of Train No.66545 Pom. Sir, I would like to inform you, today 66545 Pam ready to started at 06-20 hrs. bt daily travel passenger. With leader laying on track and not started train and 65 minutes detained train. Passenger want to old rake to run.
Kindly take necessary action.
Thanking you, Sd/-
Station Master, SWR, MARIKUPPAM Receiving complaint Sd/-
19/10. (sic)"
(Emphasis added) This is by the Station Master of Marikuppam Railway Station, KGF intimating to the concerned that on the said date the train was ready to start at 6.20 a.m. but daily passengers and certain leaders slept on the track and did not allow the train to run for 65 minutes demanding retention of old train. Therefore, it is not only political leaders but daily passengers were also agitating with regard to retention of a train. This becomes an occurrence report (FIR) for offences as afore- quoted. The gist of the occurrence report reads as follows:
"The complainant requested to submit that on 19.10.2017 while Inspector/RPF Bangarpet along with Sri N. Gopal Rao, Assistant Sub-Inspector, Sri M. -6- NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 Muninarayanaiah, ASIPF/BWT, Sri I. Sounder Raj Con/BWT and Sri K.Ramesh Con/BWT performing bandobust duty at Mari Kuppam railway station in connection with rail roko agitation programme organized by various political/daily travelers organizations in connection with the change of old Marikuppam train rake change, at about 06.00 hours about 500 members of various political/daily travelers organizations under the leadership of (1) Rupa Sashidhar D/o K.H.Muniyappa, Leader Manila Congress, KGF, (2) Ramesh Kumar Jain, City Municipal President, KGF, (3) Das Chinna Chowry, Municipal Councilor, KGF, (4) Anand S/o Soury Das, Leader Communist party of India, KGF (BEML Employee), (5) Jaipal, Ex.Chairman, KUDA, District Vice President, Congress, KGF, (6) K.C. Murali, Municipal Councilor, KGF and Ex-President, City Municipal Council, (7) Madalai Muthu, Congress Leader KGF, R/o Champion and (8) Suresh @ Dadi Suresh, Leader, Congress party, KGF (9) Anbu, Congress leader (wife Ex Councilor) Marikuppam, KGF entered into the platform of Marikuppam railway station with flags duly shouting slogans (Beke beku Swarna train beku). Inspector/RPF Bangarpet and staff tried to stop them at the entrance but forcefully they entered into railway station and squatted on the railway tracks in front of the train No.66545 Ex: MKM-Bangalore which was stabled on the platform No.01 with an intention to obstruct the running of train. Further the agitators were removed from railway track, but arrest were not made to avoid worsen of law and order situation; Inspector/RPF/Bangarpet video graphed the above said incident.-7-
NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 In this connection on duty station master, Marikuppam has given a complaint to Inspector/ RPF/ Bangarpet. Hence the said accused persons committed an offence u/s 147, 145(b) and 174(a) of Railway Act by entering illegally to the railway track, created nuisance by shouting slogans in louder voice and squatting on the tracks to obstruct the running of train.
In this connection a case has been registered at Bangarpet RPF Post railway Act Crime No.1269 of 2017 u/s 147, 145(b) and 174(a) of Railways Act and enquiry taken up."
(Emphasis added) After the FIR, a final complaint comes to be registered by the Post Commander, Railway Protection Force, Bangarpet before the concerned Court. The final report communicated that it was an inquiry that is conducted and the statements are recorded. The findings are also communicated. The final report reads as follows:
"On 19-10-2017, while Inspector/RPF, Bangarpet along with Sri N.Gopal Rao ASIPF/BWT, Sri M.Muninarayanaiah ASIPF/BWT, Sri I Sounder Raj Con/BWT and Sri K.Ramesh Con/BWT performing bandhobust duty at Marikuppam Railway station in connection with Rail roko agitation programme organized by various political/daily travelers organizations for demanding retention of old Marikuppam train rake in place of newly allotted memo rake. At about 06.00 hours about 500 members of various political/daily travelers organizations under the leadership of -8- NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 (1) Rupa Sashidhar D/o K.H.Muniyappa, Vice-President, Karnataka State Mahila Congress, KGF, (2) Ramesh Kumar Jain, City Municipal President, KGF, (3) Das Chinna Chowry, Municipal Councilor, KGF, (4) Anand S/o Soury Das, Leader Communist party of India, KGF (BEML Employee), (5) Jaipal, Ex.Chairman, KUDA, District Vice President, Congress, KGF, (6) K.C. Murali, Municipal Councilor, KGF and Ex-President, City Municipal Council, (7) Madalai Muthu, Congress Leader KGF, R/o Champion, (8) Suresh @ Dadi Suresh, Leader, Congress party, KGF and (9) Anbu, Congress leader, Ex Councilor Marikuppam, KGF entered into the platform of Marikuppam railway station with their party flags duly shouting slogans (Beke beku Swarna train beku). Inspector/RPF Bangarpet and staff tried to stop them at the entrance. But, they refused and entered into railway station with their supporters forcibly and squatted on the railway tracks in front of the train No.66545 Ex: MKM-Bangalore, Swarna memo which was stabled on the platform No.01 with an intention to obstruct the movement of train and they also thrown stones against the B/B duty staff available at MKM Railway Station and on the cabin of Engine of the said train. Further the agitators were removed from Railway track with the help of local Police and GRP Personnel and train started at about 07.25 hrs after a detention of 65 minutes, but arrest were not made to avoid worsen of law and order situation; Inspector/RPF/Bangarpet taken video and photographs footages of the said incident. In this connection on duty Station Master/Marikuppam Railway Station has given a written complaint to Inspector/RPF/Bangarpet.-9-
NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 After due enquiry a case has been registered at RPF Post/Bangarpet in RA Crime NO.1269/2017 u/s 147, 145(b) and 174(a) of Railways Act, 1989 (Amended on 2003) and enquiry taken up.
... ... ...
...
Under the above circumstances, it is proved that the above mentioned accused persons have committed an offence by Trespassing into Railway premises, created nuisance and squatted on the track in front of the Engine and obstructed the movement of said train.
Thereby, they have committed an offence punishable u/s 147, 145(b) and 174(a) of Railways Amended Act, 2003. Hence, it is prayed before the Hon'ble JMFC Court, Bangarpet that, this complaint may be taken on court file and accused persons may be dealt according to the law and render justice please."
(Emphasis added) This is placed before the learned Magistrate. The learned Magistrate takes cognizance of the offences and issues summons. The order of taking cognizance reads as follows:
"The Inspector, R.P.F., Perused the final submitted final complaint complaint and papers. The against accused No.1 to 9 complaint presented by the for the offences punishable Inspector, RPF, Bangarpet in u/Sec.147, 145(b), 174(a) official capacity. Hence, sworn of Railway Amended Act. statement is hereby exempted. There are
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 sufficient grounds and materials to proceed against the accused in respect of the offence punishable U/Sec.
147, 145(b) 174(a) of
Railway Amended Act.
Hence, cognizance
taken against the accused for this offence.
Register the case in Register No.III as CC.
Issue SS to Accused No.1 to 9 returnable by 25/4.Initial 21/1
Prl.C.J.& JMFC, Bangarpet."
The offences so alleged are the ones punishable under Sections 147, 145(b) and 174(a) of the Act and they read as follows:
"145. Drunkenness or nuisance.--If any person in any railway carriage or upon any part of a railway--
(a) ... ...
(b) commits any nuisance or act of indecency or uses abusive or obscene language; or
(c) ... ...
he may be removed from the railway by any railway servant and shall, in addition to the forfeiture of his pass or ticket, be punishable with imprisonment which may extend to six months and with fine which may extend to five hundred rupees:
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such punishment shall not be less than--
(a) a fine of one hundred rupees in the case of conviction for the first offence; and
(b) imprisonment of one month and a fine of two hundred and fifty rupees, in the case of conviction for second or subsequent offence.
... ... ...
147. Trespass and refusal to desist from trespass.--(1) If any person enters upon or into any part of a railway without lawful authority, or having lawfully entered upon or into such part misuses such property or refuses to leave, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both:
Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such punishment shall not be less than a fine of five hundred rupees.
(2) Any person referred to in sub-section (1) may be removed from the railway by any railway servant or by any other person whom such railway servant may call to his aid.
... ... ...
174. Obstructing running of train, etc.--If any railway servant (whether on duty or otherwise) or any other person obstructs or causes to be obstructed or attempts to obstruct any train or other rolling stock upon a railway,--
(a) by squatting or picketing or during any rail roko agitation or bandh; or ... ... ..."
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 Section 147 deals with trespass and refusal to desist from trespass. If any person enters into any part of the railway station, misuses the property or refuses to leave, he shall be punishable with 6 months imprisonment. Section 145 deals with drunkenness or nuisance. Whoever commits any nuisance or act of indecency or uses abusive or obscene language he would become liable for punishment up to 6 months. What remains is Section 174(a). If any person obstructs or causes to be obstructed or attempts to obstruct any train or other rolling stock upon a railway by squatting or picketing or any rail roko agitation, he shall be punishable with imprisonment for a term which may extend to two years. Therefore, on the face of three offences alleged, they are non-cognizable. For a non-cognizable offence whether permission will have to be sought at the hands of the learned Magistrate before registering the crime need not detain this Court for long or delve deep into the matter. Sub-section (2) of Section 155 of the Cr.P.C., directs that no crime can be registered without the prior permission of the learned Magistrate if the offences are non-cognizable. Strenuous efforts are made by the learned counsel for the respondents to contend that the accused can be arrested without a warrant and, therefore, they are cognizable. These offences are not the ones where the accused can be arrested without a warrant. Section 179 of the Act deals with offences which incur arrest. Though Section 147 finds a mention in the said section, it is only when the accused are likely to abscond. Therefore, the offences are non-cognizable and ought to have received the permission of the learned Magistrate prior to registration of crime.
9. The next issue would be whether the Court has taken cognizance on a complaint registered by an authorized officer. Section 180F of the Act deals with cognizance by Court on a complaint made by authorized officer and it reads as follows:
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 "180-F. Cognizance by Court on a complaint made by officer authorised.--No court shall take cognizance of an offence mentioned in sub-section (2) of Section 179 except on a complaint made by the officer authorised."
The section mandates that no Court shall take cognizance of the offence mentioned in sub-section (2) of Section 179 except on a complaint made by an officer authorized. The authorized officer would mean an officer authorized by the Central Government under sub-section (2) of Section 179.
Section 26A is brought in by way of amendment with effect from 01-07-2004. The learned counsel representing the Railways has produced a notification to buttress his submission that the complaint is registered by the authorized officer. The Notification reads as follows:
"S.O.593(E).- In exercise of the powers conferred by sub-section (2) of Section 179 of the Railways Act, 1989 (24 of 1989), the Central Government hereby notifies all the officers of and above the rank of Assistant Sub- Inspector in the Railway Protection Force as the "officer authorized" for the purpose of the said Act."
(Emphasis supplied) The notification is dated 17-05-2004. The notification directs that any officer above the rank of Assistant Sub-Inspector in the Railway Protection Force is the officer authorized for the purpose of the Act. This is issued under sub-section (2) of Section 179 of the Act. Therefore, it was in consonance with Section 26A, but whether it is issued prior to
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 the amendment or after the amendment is what is to be noticed. The amendment comes about on 01- 07-2004 and the notification is dated 17-05-2004. After the amendment, the Central Government ought to have issued another notification either by continuing the notification dated 17-05-2004 or issuing a fresh notification in terms of the amendment. That admittedly has not been done in the case at hand. Therefore, the notification issued prior to the amendment cannot be pressed into service, as that would amount to a notification continued after the amendment comes into force. The learned counsel for the Railways has placed a memo along with document that went into bring in sub-section 26A to Section 2. Though that would depict that it received the assent of the President on 23-12-2003 it did not see the light of the day up to 1-07-2004 as it was published in the Official Gazette only on 1-07-2004. Therefore, if any notification issued by Government prior to the Act coming into force states that it would come into force by a notification in the official gazette, which happens only on 01-07-2004, a subsequent notification was necessary by the Railways to depict who is the authorized officer under Section 179 of the Act.
10. Identical issue is dealt with by the High Court of Patna in the case of SUSHIL KUMAR MODI (supra) wherein a learned single Judge holds as follows:
"7. According to FIR, the informant got information that 100-125 workers of the referred political party were proceeding towards Sachivalaya Halt, Railway Station, making slogan of "Chakka Jam". The informant apprehended that they may disturb rail traffic, hence, informed to the Senior Police Officer and arrested to some of the members of the crowed including the petitioners and reported the matter to the
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 In-Charge Inspector, Railway Protection Force, Post at Patna Junction.
8. Section 145 of the Railways Act, 1989 reads as follows:--
"145. Drunkenness or nuisance.- If any person in any railway carriage or upon any part of a railway-
(a) is in a state of intoxication; or
(b) commits any nuisance or act of indecency or uses abusive or obscene language; or
(c) willfully or without excuse interferes with any amenity provided by the railway administration so as to affect the comfortable travel of any passenger, he may be removed from the railway by any railway servant and shall, in addition to the forfeiture of his pass or ticket, be punishable with imprisonment which may extend to six months and with fine which may extend to five hundred rupees:
Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such punishment shall not be less than -
(a) a fine of one hundred rupees in the case of conviction for the first offence; and
(b) imprisonment of one month and a fine of two hundred and fifty rupees, in the case of conviction for second or subsequent offence."
9. The FIR does not disclose that the named accused persons had committed any nuisance or act of indecency or had used any abusive or obscene language or wilfully
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 interfered with any amenities provided by the railway administration, as such, apparently, there is no ingredient of the aforesaid offence made out against any of the accused.
10. Section 146 of the Railways Act, 1989 reads as follows:--
"146. Obstructing railway servant in his duties.-- If any person willfully obstructs or prevents any railway servant in the discharge of his duties, he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
11. There is no allegation of obstruction or prevention in discharge of duty by any railway servant by anyone named in the FIR, hence, offence under Section 146 of the Act is also not made out.
12. Section 174 of the Railways Act, 1989 reads as follows:--
"174. Obstructing running of train, etc.--- If any railway servant (whether on duty or otherwise) or any other person obstructs or causes to be obstructed or attempts to obstruct any train or other rolling stock upon a railway,--
(a) by squatting or picketing or during any rail roko agitation or bandh; or
(b) by keeping without authority any rolling stock on the railway; or
(c) by tampering with, disconnecting or interfering in any other manner with its hose pipe or tampering with signal gear or otherwise, he shall be punishable with imprisonment for a term which may extend to two years,
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 or with fine which may extend to two thousand rupees, or with both."
13. Apparently, there is no allegation in the FIR that any of the accused attempted to obstruct any train by squatting or picketing. There is no reference that any individual train was stopped nor there is allegation that the petitioners or any other accused indulged in squatting or picketing. However, the complaint petition discloses commission of act by the accused attracting requirement of the offence under Section 174(a) of the Act.
14. In this case, the offences allegedly took place on 28.02.2014. The period of limitation for cognizance starts from the date of offence as provided under Section 469 of the Cr.P.C. While counting the said period, the date of offence is to be excluded as per sub-section 2 of Section 469 of the Cr.P.C. None of the offences alleged are continuing offence, hence, provisions of Section 472 of the Cr.P.C. would not come into play. Under Section 473 Cr.P.C., the Magistrate is empowered to take cognizance of an offence, after the expiry of the period of limitation, if he satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice. The impugned order does not show that the learned Magistrate has applied its mind on this question of law nor there is any disclosure in the impugned order that the learned Magistrate has condoned the delay as it was necessary to do so in the interest of justice.
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024
15. The scope and ambit of powers under Section 473 of the Cr.P.C. was considered by the Hon'ble Supreme Court in State of Himachal Pradesh v. Tara Dutt reported in 2000 SCC (Cri) 125 and in Sanapareddy Maheedhar Seshagiri v. State of Andhra Pradesh reported in (2007) 13 SCC 165 : AIR 2008 (SC) 787 and the Hon'ble Supreme Court observed as follows:--
"Section 473 confers power on the Court taking cognizance after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and that it is necessary so to do in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has been provided in Section 468, the power has been conferred on the court taking cognizance to extend the said period of limitation where a proper and satisfactory explanation of the delay is available and where the Court taking cognizance finds that it would be in the interest of justice. This discretion conferred on the Court has to be exercised judicially and on well-recognised principles. This being a discretion conferred on the court taking cognizance, wherever the court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the court that the delay was satisfactorily explained and condonation of the same was in the interest of justice. In the absence of a positive order to
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 that effect it may not be permissible for a superior court to come to the conclusion that the court must be deemed to have taken cognizance by condoning the delay whenever the cognizance was barred and yet the court took cognizance and proceeded with the trial of the offence."
16. In State of Maharashtra v. Sharadchandra Vinayak Dongre reported in (1995) 1 SCC 42 : AIR 1995 (SC) 231, the Hon'ble Supreme Court held that delay in launching the prosecution cannot be condoned without notice to the accused.
17. In the case at hand, the learned court below while passing the impugned order did not notice to the accused person nor condoned the delay by speaking order. Therefore, the impugned order of cognizance was barred by limitation and, as such, whole subsequent proceeding was bad in law.
18. To consider the third ground of the petitioners regarding competency of the person, who lodged the prosecution, it is necessary to have a look on the following provisions of the Act.
19. Section 179 of the Railways Act, 1989 provides as follows:--
"179. Arrest for offences under certain sections. -
(1) If any person commits any offence mentioned in sections 150 to 152, he may be arrested without warrant or other written authority by any railway servant or police officer not below the rank of a head constable.
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 (2) If any person commits any offence mentioned in sections 137 to 139, 141 to 147, 153 to 157, 159 to 167 and 172 to 176, he may be arrested, without warrant or other written authority, by the officer authorised by a notified order of the Central Government.
(3) The railway servant or the police officer or the officer authorised, as the case may be, may call to his aid any other person to effect the arrest under sub-section (1) or sub-section (2), as the case may be.
(4) Any person so arrested under this section shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate."
20. Section 180-A and 180-F of the Railways Act, 1989 provides as follows:--
"180-A. Inquiry by officer authorised to ascertain commission of offence.--- For ascertaining facts and circumstances of a case, the officer authorised may make an inquiry into the commission of an offence mentioned in sub-section (2) of section 179 and may file a complaint in the competent Court if the offence is found to have been committed."
"180-F. Cognizance by Court on a complaint made by officer authorised.--- No Court shall take cognizance of an offence mentioned in sub-section (2) of section 179 except on a complaint made by the officer authorised."
21. There is no material on the record to substantiate that
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 complainant of this case was an officer authorized by the Central Government as defined under sub-section 26-A of Section 2 of the Act. Therefore, inquiry of the offences alleged against the petitioners which are covered by sub- section 2 of Section 179 of the Act aforesaid was not done by an officer authorized. Hence, the complaint filed after about three years of the alleged occurrence was itself by an incompetent person under Section 180- A of the Act. Therefore, the Magistrate was not competent to take cognizance in view of the bar under Section 180-F of the Act. Apparently, the impugned order is barred by statutory provisions also due to non-filing of the complaint by an authorized officer, as such, the entire criminal prosecution is fit to be quashed for this reason also."
(Emphasis supplied) The High Court of Patna captures entire provisions of law which are alleged in the case at hand as well and holds that the complaint being placed before the learned Magistrate by an incompetent person could not have resulted in taking of cognizance by the learned Magistrate as Section 180F makes it clear that no Court shall take cognizance except on a complaint registered by an authorized person. The case at hand also depicts identical circumstance. I am in complete agreement with what the High Court of Patna has considered and held as they are identical to the one that is alleged in the case at hand.
"4. Mr P.S. Misra, the learned Senior Advocate appearing for the respondents has frankly conceded that the order of the High Court impugned in these appeals cannot be justified. He has, however, prayed that as the respondents-accused had raised various other contentions for quashing of the
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 proceedings before the Magistrate, this Court may consider desirability of adjudicating such pleas or remand the case back to the High Court for decision on the points raised but not decided."
The offence alleged in the case before the Apex Court was under the Railway Property Act. Section 3 of the Railway Property Act reads as follows:
"3. Penalty for theft, dishonest misappropriation or unlawful possession of railway property.-- Whoever commits theft, or dishonestly misappropriates or is found, or is proved] to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable--
(a) for the first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees;
(b) for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees.
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 Explanation.--For the purposes of this section, "theft" and "dishonest misappropriation" shall have the same meanings as assigned to them respectively in Section 378 and Section 403 of the Indian Penal Code (45 of 1860)."
This was the offence alleged before the Apex Court. The offence was of cognizable as it was penalty for theft, dishonest misappropriation or unlawful possession of railway property. Be the submissions as they may, on the face of it, the judgment of the Apex Court would not be applicable to the facts of the case, as the subject case would not involve any property under the Railway Property Act; it is under the Act.
12. In the entire alleged episode of crime, it is ununderstandable as to what mens rea the petitioners had. Daily passengers along with political leader started a rail roko agitation. The railway roko resulted in 65 minutes of stoppage of rail. Therefore, the public also involved in an issue which public wanted to be resolved through railway roko agitation cannot be countenanced. For registration of crime the primary ingredient should be mens rea. That is conspicuously absent in the case at hand. Therefore, further proceedings if continued would run foul of the judgment of the Apex Court in the case of STATE OF HARYANA v. BHAJAN LAL1 wherein the Apex Court has held as follows:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the 1 1992 Supp (1) SCC 335
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do
not constitute a offence but
constitute only a non-cognizable offence, no investigation is permitted
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
(Emphasis supplied) In the light of the facts narrated hereinabove and the judgment of the Apex Court in the case of BHAJAN LAL (supra), I deem it appropriate to exercise my jurisdiction under Section 482 of the Cr.P.C., and obliterate the claim registered against the petitioners to prevent miscarriage of justice.
13. For the aforesaid reasons, I pass the following:
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024 ORDER
(i) Criminal Petitions are allowed.
(ii) Proceedings in Special C.C.No.208 of 2021 pending before the LXXXI Additional City Civil and Sessions Judge, Bengaluru City arising out of Crime No.1269 of 2017 stand quashed qua the petitioners.
(iii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioners under Section 482 of Cr.P.C., and the same shall not bind or influence the proceedings against any other accused pending before any other for a."
In the light of the above, petition qua accused Nos.1 and 2 being allowed partly, petitioners accused Nos.3 to 7 and 9 deserves to succeed.
13. For the aforesaid reasons, I pass the following:
ORDER
(i) Criminal Petitions are allowed.
(ii) Proceedings in C.C.No.89 of 2019 pending before the Principal Civil Judge and JMFC Court at Bangarpet arising out of Crime No.1269/2017 stand quashed qua the petitioners.
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NC: 2024:KHC:35477 CRL.P No. 5986 of 2024
(iii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioners under Section 482 of Cr.P.C., and the same shall not bind or influence the proceedings against any other accused pending before any other fora.
Sd/-
(M.NAGAPRASANNA) JUDGE BVK List No.: 1 Sl No.: 22