July 3, 2018:

High Court Case Analysis: Parveen Gaur Dwivedi v. State of Haryana & Ors.[1] By: Yuthika Agarwal

 INTRODUCTION

 In the present case the question is before the Punjab and Haryana High Court was to decide validity of enquiry conducted by Special Railway Magistrate (SRM) under section 340 of Code of Criminal Procedure. The decision of Senior Divisional Commercial Manager of not providing the squad of ten Travelling Ticket Examiners (TTEs) is also in question. The appeal is filed by D.C.M challenging the cause notice issued by SRM under section 186, 187, 217 IPC.FACTS

  1. There is the appointment of a Special Railway Magistrate (SRM) in Ambala Cantt. For the purpose of conducting checks which are known as “Magisterial Checks” or “SRM check” to check and punish passengers without ticket and also to punish persons guilty of other offences.
  2. As per provisions SRM has to be provided with a team of railway guards and security personals. The guars of trains attached with him were known as “Special Railway Magistrate Squad” and was authorize to check and penalize persons travelling without tickets and committing other offences.
  3. It is a mandate of the Hon’ble High Court to hold Camps throughout the state and conduct trial of the persons travelling without ticket. The clerk of the commercial department told the Court Clerk that the department is unable to spare any TTE of SRM squad for the aforesaid checking without assigning any appropriate reason.
  4. There was no official communication made in this regard.
  5. A show cause notice is issued to the department by the court of SRM under section 186, 187, 217 IPC asking to mention reasons why a proceeding must not be initiated.
  6. In reply D.C.M accepted that the oral communications were received by her from the clerk of the court of SRM regarding ‘SRM-Check’. She also admitted that checking staff was not provided for SRM checks for those days i.e. 29th and 30th September 2016 giving reason for the same. It was also requested that SRM Check in future must be reviewed in the light of Section 181 (Magistrate having jurisdiction under the Act) and 182 (Place of Trial).
  7. Therefore the learned Railway Magistrate conducted an enquiry under section 340 Code of Criminal procedure and recorded the statements of various witnesses.
  8. He observed that the obstruction has been caused by the petitioner in performing his judicial functions and thus transmitted complaint to the learned Judicial Magistrate, Ambala under the provisions of section 195 (1) (a) (i) of Code.
  9. Petitioner raised the question that this enquiry amounts to full-fledged trial and SRM has himself taken cognizance of the complaint in which he was the complainant. It was argued that the Railway Magistrate has no independent power to check the wrong doers committing offences under the Act.
  10. The court passed the order stating that petitioner has unnecessarily, without any cogent reason has withdrawn the staff. Further stated that learned Special Railway Magistrate only transmitted the complaint to the Chief Judicial Magistrate under the provisions of the section 195 of the Code of Criminal Procedure.
  11. The matter went before the High Court of Haryana where it was held that the both the impugned order of SRM and other court do not suffer from irregularity, illegality and are hereby affirmed.

 

ANALYSIS OF THE JUDGEMENT

The High Court while addressing the issues in the present case gave reasons concerning the order passed by the SRM and why the decision of Commercial Department of not providing Squad is not justifiable.

 

  1. A Railway Magistrate is appointed for dual purpose: firstly, to punish the wrong doers under the Act and to exercise judicial scrutiny and supervision over the administrative actions of the various wings of the department with regard to recovery of fare, excess charges etc. Such a withdrawal of the checking staff amounts to an obstruction in performing the duties of a Railway Magistrate. The definition of ‘obstruction’ is a show of force or a threat or any act preventing the execution of any act by a public servant. Such an obstruction may be by the acts of omissions, commissions, and conduct of the offender.

 

  1. In the view of Court in the given case obstruction is apparent even from the bare perusal of the reply to the show cause notice by way of affidavit of the petitioner. The denial to provide checking staff and withdrawal of the same is itself amounts to an obstruction under the provisions of 186 and 187 IPC.The decision of Divisional Commercial Manager is arbitrary and irregular in spite of the fact that ten train guards have been deployed for this purpose.

 

  1. The Court gave the reason that the complainant in this case is SRM and it is specifically stated by him that he is transmitting the complaint to Judicial Magistrate for the purpose of taking of action against the petitioner and the argument concerning the enquiry as void is invalid.

 

  1. Interpreting section 340 Crpc, any court can conduct an enquiry if it is of the opinion that it is necessary in the interests of justice to carry out an investigation and after that can transfer the complaint to the respective Magistrate of first class. The enquiry conducted by SRM in the given case is well within the law and the contention that he is not authorized to do so is wrong as he later transmitted the complaint to the Chief Judicial Magistrate.

 

  1. Under section 190 IPC Chief Judicial Magistrate after taking cognizance has to act independently, irrespective of the observations made in the impugned order or in the complaint sent by the Special Railway Magistrate. The Magistrate after examining all the evidences and conducting an independent enquiry reached to the decision that the decision of the petitioner in this case is invalid and violation of law.

 

  1. The purpose of checking ticketless travellers, unauthorized hawkers and to curb commission of other offences as provided in the Act is to augment the revenue and to arrest the illegal and dishonest practices. The various officers in the railway department are authorized to check and to recover the fare from the wrong doers but there must be judicial scrutiny and supervision, which amounts to judicial review of the actions of the officers of the railway.

 

  1. Thus the court giving the reasons held that the petitioner in withdrawing the checking staff is not only unfair, rather it is reprimandable. None of the railway authorities has any power to oust the jurisdiction of the Special Railway Magistrate in this regard.

 

  1. No one on discretion can take away the powers given by virtue of law. The offence of travelling without tickets is severe and must not be taken lightly in any case. If there is no checking staff, people will travel without fear and it will affect the very existence of having a law. The legislative intent of section 340 crpc is clear which is to provide necessary powers to any court to at least conduct an enquiry in the matter involving interest of justice.

 

INTERPRETATION OF SECTION 260 AND SECTION 340 CRPC

  1. Under this section Any Magistrate of the first class empowered by the High Court may conduct the summary trials of the offences and award punishment. If offences that are not triable in a summary are tried then the trial shall be void.
  2. The power given to SRM is mandated by the High Court and it is necessary that it be followed in the same manner like any other law. Any arbitrary action to make it non-performing will invite severe punishment and will be regarded as unfair and wrong.
  3. Reading the section it can be inferred from its language and intent, that the Court has the power to conduct an enquiry in any matter but cannot carry trial and can transmit the complaint to the Chief Judicial Magistrate after giving necessary reasons as to why the enquiry was conducted.
  4. Section 340 empowers Courts to conduct a preliminary enquiry in the matter and can also record a finding, make a complaint, send it to the magistrate of the first class having jurisdiction, etc. In this case the magistrate himself is the complainant and irrespective of that can conduct an inquiry but not the trial.
  5. The word ‘Court’ used in section 340 has the same meaning as in section 195, which is any Civil, Revenue or criminal Court and includes a tribunal constituted by or under a Central, Provincial, or State Act if declared by that Act to be court for the purpose of the given section.
  6. The word ‘may’ used in section 340 crpc provides an option to the court to make an inquiry if it feels to do so in the interest of justice based on the circumstances of the case. In the given case, the denial of providing the SRM with the “Checking Squad” is violation of law and demands reasonable reasons for the same.

 

PRELIMINARY INQUIRY UNDER SECTION 340 CRPC

The inquiry given under this section is optional and if court can form the view without inquiry, court can dispense with the inquiry. Court while having an inquiry can call the witnesses and ask for the information in the matter and can also examine other evidences available. There has to be some starting point of inquiry like the production of any document, or anything else. In the given matter the information given by the clerk of Commercial Department to the clerk of the court makes the way to conduct the inquiry in the matter. Even after inquiry when the case is transferred to other court, setting aside the information, an independent inquiry must be conducted by the Magistrate in the matter and decision will be taken only after considering all the evidences available.

The court in such cases must take action expeditiously after receiving the complaint and should never exceed their powers of conducting trial. In this case the powers of SRM include carrying out the summary trials for the assigned offences in the matters of railway and therefore the complaint was transmitted to the Chief Judicial Magistrate having the jurisdiction.

[1] CRM-M-10769-2017 (O&M)

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