Karnataka High Court
Ramesh Jain vs State Of Karnataka on 20 December, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.7801 OF 2023
C/W
CRIMINAL PETITION No.8718 OF 2021
CRIMINAL PETITION No.7801 OF 2023
BETWEEN:
RAMESH JAIN
S/O LATE PREM CHAND
AGED ABOUT 45 YEARS
CITY MUNICIPAL PRESIDENT
R/AT PICTURE ROAD
ROBERTSONPET
K.G.F - 563 122.
... PETITIONER
(BY SRI. S.JAGAN BABU, ADVOCATE)
AND:
1 . STATE OF KARNATAKA
BY SUB-INSPECTOR OF POLICE
RPF POLICE, BANGARPETE
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2 . SRI. ABHISHEK KUMAR
W/O SHAMBUNATH PRASAD
AGED ABOUT 36 YEARS
2
WORKING AS STATION MASTER
MARIKUPPAM, K.G.F TALUK
KOLAR DISTRICT - 563 122.
... RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.30769/2021, ARISING OUT OF CR.NO.1269/2017 FOR THE
OFFENCE P/U/S 147, 145(b), 174a OF RAILWAY ACT, 1989 OF
POST COMMANDER / RAILWAY PROTECTION FORCE (INSPECTOR)
RAILWAY PROTECTION FORCE (RPF), BANGARPET, BANGALORE
DIVISION, SOUTH WESTERN RAILWAY, BANGARPET, KOLAR
DISTRICT-563122, NOW PENDING ON THE FILE OF XLII ACMM,
BANGALORE (SPECIAL COURT EXCLUSIVELY TO DEAL WITH
CRIMINAL CASES RELATED TO ELECTED MPS/MLAS IN THE STATE
OF KARNATAKA).
IN CRIMINAL PETITION No.8718 OF 2021:
BETWEEN:
SMT. ROOPAKALA M.,
@ ROOPA SHASHIDHAR
D/O K.H.MUNIYAPPA
W/O SHASHIDHAR
AGED ABOUT 42 YEARS
LEGISLATIVE ASSEMBLY MEMBER OF KGF
NO. 1093/1, 11TH CROSS, SWARNA NAGAR
ROBERTSONPET K.G.F
KOLAR DISTRICT - 563 122.
...PETITIONER
(BY SRI. R.HEMANTH RAJ, ADVOCATE)
3
AND
1. THE STATE BY POST COMMANDER /RPF I.O.
INSPECTOR/RAILWAY PROTECTION FORCE (RPF)
BANGERPET, BANGALORE DIVISION
SOUTH WESTERN RAILWAY
BANGARPET, KOLAR DISTRICT - 563 122
REPRESENTED BY ITS
SPECIAL PUBLIC PROSECUTOR
2. ABHISEK KUMAR
S/O SHAMBUNATH PRASAD
AGED ABOUT 36 YEARS
WORKING AS STATION MASTER
MARIKUPPAM, KGF TALUK
KOLAR DISTRICT - 563 119.
...RESPONDENTS
(BY SRI. BALAKRISHNA M. R., CGC)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS PENDING
BEFORE THE PRESENTLY IN CHARGE COURT OF LXXXI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-82)
REGULAR COURT OF I/c XC ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (SPECIAL COURT
EXCLUSIVELY TO DEAL WITH CRIMINAL CASES RELATED TO
ELECTED MPs/MLAs IN THE STATE OF KARNATAKA) IN
SPL.C.C.NO.208/2021 PENDING AGAINST THE PETITIONER AND
CHARGE SHEET FILED BY THE 1ST RESPONDENT AGAINST THE
PETITIONER AS PRODUCED IN THIS PETITION AS ANNEXURE-A
AND C.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 08.12.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
4
ORDER
The petitioners in both these cases call in question entire
proceedings in Special C.C.No.208 of 2021 pending before the
LXXXI Additional City Civil & Sessions Judge, Bengaluru city arising
out Crime No.1269 of 2017 registered for offences punishable under
Sections 147, 145(b) and 174(a) of the Railways Act, 1989
(hereinafter referred to as 'the Act' for short). The petitioner in
Criminal Petition No.8718 of 2021 is accused No.1 and petitioner in
Criminal Petition No.7801 of 2023 is accused No.2. Since both these
cases arise out of aforementioned solitary special criminal case,
they are taken up together and considered by this order.
2. Heard Sri R.Hemanth Raj, learned counsel appearing for
the petitioner and Sri M.R. Balakrsihna, learned Central
Government Council appearing for the respondents in Criminal
Petition No.8718 of 2021; Sri S.Jagan Babu, learned counsel
appearing for the petitioner and Smt. K.P. Yashodha, learned High
Court Government Pleader appearing for the respondents in
Criminal Petition No.7801 of 2023.
3. Facts, in brief, germane are as follows:-
On 19-10-2017 at Marikuppam Railway Station, KGF a few
leaders and organizations lie on the railway tracks demanding
restoration of old train (Swarna Passenger) for movement in the
area and thereby caused obstruction to the train movement in the
station for about 65 minutes. This becomes the subject matter of
these petitions. On the incident that happens on 19-10-2017 an
information report is submitted to the concerned about what
happened on the said date. This results in an occurrence
report/FIR being registered against several accused. The petitioners
in these cases are accused Nos. 1 and 2. Accused No.1 is a political
representative and accused No.2 is a Municipal President of
Robertsonpet, KGF. The occurrence report/FIR is investigated into.
The investigation leads to filing of final complaint under Section
179/180 of the Act. The offences alleged are the ones punishable
under Sections 147, 145(b) and 174(a) of the Act. The learned
Magistrate takes cognizance of the offences so laid in the final
report and registers a criminal case against all the accused and
issues summons to the accused to be returnable by 25-04-2019.
Criminal Petition No.8718 of 2021 is filed at the outset and an
interim order of stay of further proceedings is granted and the
same is in operation even as on this date. Then comes the
companion petition of accused No.2 in Criminal Petition No.7801 of
2023. An interim order as was operating in the connected case is
granted in this case as well.
4. The learned counsel appearing for the petitioner in
Crl.P.No.8718 of 2021 Sri R.Hemanth Raj would vehemently
contend that the offences alleged are non-cognizable. Under
Section 155 of the Cr.P.C., permission of the learned Magistrate
ought to have been obtained to investigate into the matter. That is
not done. Therefore, the entire proceedings stand vitiated. He
would further contend that the authorized officer has not registered
the final complaint before the concerned Court and if it is not by an
authorized officer, the concerned Court could not have taken
cognizance of the offences. The learned counsel Sri S.Jagan Babu,
representing the petitioner in the companion petition Crl.P.No.7801
of 2023 would toe the lines of the learned counsel appearing for the
petitioner in Criminal Petition No.8718 of 2021. Both of them would
seek quashment of entire proceedings contending that it is an
abuse of the process of law and there is no iota of mens rea
involved in the case at hand.
5. Per-contra, the learned Central Government Counsel
appearing for the respondents Sri M.R.Balakrishna would submit
that the offences alleged are all cognizable as there can be arrest
without a warrant and, therefore, permission of the learned
Magistrate would not require. An authorized officer is the one, who
in terms of a notification issued by the Department of Railways, is
above the rank of Assistant Sub-Inspector. The one who has
registered the complaint is the Inspector. Therefore, it is by an
authorized officer and the cognizance taken by the Court on the
complaint by the authorized officer is in tune with law. He would
seek to place reliance upon the judgment of the Apex Court in the
case of STATE OF BIHAR v. CHANDRA BHUSHAN SINGH1 to
buttress his submission. The learned High Court Government
Pleader who appears for the respondents in the companion petition
also toe the lines of the learned Central Government Counsel.
(2001) 2 SCC 241
6. The learned counsel Sri R. Hemanth Raj would join the
issue by contending that the above judgment is not applicable to
the facts of the case as that was concerning only cognizable
offence. In the case at hand, there was no cognizable offence and
above all he would reiterate that there was no mens rea and seek
to place reliance on the judgment of the High Court of Patna in the
case of SUSHIL KUMAR MODI v. STATE OF BIHAR2 which
according to him has decided an identical issue.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
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
2019 SCC OnLine Pat 970
resulted in the Officer of the Railway Station communicating a
report to the concerned. The report reads as follows:
"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. 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.
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
(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.
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
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.
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:
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
... ... ..."
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:
"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 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 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
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, 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.
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 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.
(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 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.
11. Insofar as the judgment of the Apex Court in the case of
CHANDRA BHUSHAN SINGH (supra) the same is not applicable
to the case, as the facts obtaining in the case before the Apex Court
are distinguishable without much ado qua the offences alleged
therein. The Apex Court was considering the offences punishable
under the Railway Property (Unlawful Possession) Act, 1966 (for
short 'the Railway Property Act') and the order was rendered on a
concession made by the counsel for the respondent that the High
Court has erred in granting the relief to the petitioner therein. The
observation reads as follows:
"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 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.
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 LAL3 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 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.
1992 Supp (1) SCC 335
(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 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:
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 fora.
Sd/-
JUDGE
Bkp/CT:SS
