# Keshav Narayan &Anr v. State of U.P &Anr

- **Citation:** (2019) 1 ILRA 143
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-03
- **Case number:** Civil Misc. Writ Petition No.4042 of 2004
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/keshav-narayan-anr-v-state-of-u-p-anr-44426
- **Pages:** 4

## Headnote

Section
3
of
Railway
Property
(Unlawful
Possession)
Act,
1966-
Railway
property
recovered
-
said
property was lying at the petrol pump
when the applicant was manager-prima
facie
case
against
the
applicantproceedings cannot be quashed because
report submitted by a police officer when
he
has
no
power
to
investigate-
application dismissed. (Para 6)

Offence under the Railway Property (Unlawful
Possession) Act, 1966- are non-cognizable-
Section 5- enquiry and complaint can be filed
but Enquiry officer cannot approach Magistrate
to inform about the proceedings-

B. The matter under enquiry and letter
submitted
before
the
Magistrate
is
neither a report under Section 173
Cr.P.C. nor a formal complaint under
Section 200 Cr.P.C. A letter addressing
the magistrate does not imply that the
procedure contemplated in law will not
be followed. Such report in a noncognizable
offence
in
view
to
Explanation to Section 2(d) of Cr.P.C.,
such report can be deemed to be a
complaint and Magistrate can proceed
accordingly.
Application u/s 482 Cr.P.C. dismissed.

Chronological list of Case Cited: -

## Text

1 All. Keshav Narayan & Anr. Vs. State of U.P. & Anr.
143
the discretion under Section 311 Cr.P.C.
and
the
present
application
stands,
accordingly, dismissed.

16. However, the trial court is
directed to expedite the aforesaid session
trial and conclude the same in accordance
with law without granting unnecessary
adjournments to either of the parties as
expeditiously
as
possible
preferably
within a period of nine months from the
date of production of a certified copy of
this order, if there is no legal impediment.

17.

Office
is
directed
to
communicate the order to the court
concerned within a week.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.07.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.4042 of 2004
(u/s -482 Cr. P.C.)

Keshav Narayan &Anr. ...Applicants
Versus
State of U.P &Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ashwini Kumar Awasthi, Sri Manish
Tiwary

Counsel for the Opposite Parties:
A.G.A., Dr. Santosh Kumar Tiwari, Sri
Rajnish Rai, Sri Vivek Singh.

A.
Section
3
of
Railway
Property
(Unlawful
Possession)
Act,
1966-
Railway
property
recovered
-
said
property was lying at the petrol pump
when the applicant was manager-prima
facie
case
against
the
applicantproceedings cannot be quashed because
report submitted by a police officer when
he
has
no
power
to
investigate-
application dismissed. (Para 6)

Offence under the Railway Property (Unlawful
Possession) Act, 1966- are non-cognizable-
Section 5- enquiry and complaint can be filed
but Enquiry officer cannot approach Magistrate
to inform about the proceedings-

B. The matter under enquiry and letter
submitted
before
the
Magistrate
is
neither a report under Section 173
Cr.P.C. nor a formal complaint under
Section 200 Cr.P.C. A letter addressing
the magistrate does not imply that the
procedure contemplated in law will not
be followed. Such report in a noncognizable
offence
in
view
to
Explanation to Section 2(d) of Cr.P.C.,
such report can be deemed to be a
complaint and Magistrate can proceed
accordingly.
Application u/s 482 Cr.P.C. dismissed.

Chronological list of Case Cited: -

1. AIR (2001) Supreme Court 429 State of
Bihar Vs. Chandra Bhushan Singh and Others

2. AIR 1981 SC 379 Balkrishn A. Devidayal,
etc. Vs. State of Maharashtra

3. AIR (2002) SC 64 State of Bihar Vs.
Baidnath Prasad @ Baidyanath Shah ans
Another

4. (1999) CRI. L.J. 1075 (Ald) Ishwar Saran
Shukla ans Another Vs. State of U.P.

5. Cr.P.CAIR (1996) SC 1619 Common Cause, a
Registered Society Vs. Union of India (E-10)
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Praveen Kumar,
Advocate holding brief of Sri Manish
Tiwary, learned counsel for applicants; and,
Sri Rajnish Kumar Rai, Advocate for
complainant and Sri Syed Ali Murtaza,
learned AGA for State of U.P.
144 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This is an application filed under
Section 482 Criminal Procedure Code, 1973
(hereinafter
referred
to
as
"Cr.P.C.")
praying for quashing of proceedings of Case
Crime No. 8 of 2003, under Section 3 of
Railway Property (Unlawful Possession)
Act, 1966 (hereinafter referred to as "Act,
1966"), Police Station- D.L.W. Railway
Protection Force (hereinafter referred to as
"RPF") Post D.L.W. Varanasi.

3. Case was registered at P.S. RPF Post
D.L.W. Varanasi on 20.05.2003 alleging that a
piece of Railway line was recovered from
Vikas Singh and he was arrested with Railway
property. When enquired from him, he told that
applicants who were earlier Manager at petrol
pump where he (Vikas Singh) was working,
may be able to tell about the said property,
since Railway property was lying at the petrol
pump before employment of Vikas Singh.
Vikas Singh was enlarged on bail by Sessions
Judge, Varanasi vide order dated 24.05.2003.
On 05.04.2004, Investigating Officer informed
Additional Chief Judicial Magistrate, North
Eastern
Region,
Varanasi
about
the
investigation, he is making in the matter. These
proceedings
have
been
challenged
by
applicants on the ground that offence under
Act, 1966 is not cognizable in view of Section
5 thereof, hence, Enquiry Officer has only
option of making enquiry and file complaint
and no procedure is prescribed whereunder he
may approach Magistrate concerned to inform
about the proceedings conducted by him. It is
also submitted that from G.D. Entry dated
20.05.2003 at Serial No. 37, it cannot be said
that any offence has been committed by
applicants under Section 3 or 4 of Act, 1966
and, therefore, report submitted by Enquiry
Officer before Additional Chief Judicial
Magistrate, North Eastern Region, Varanasi on
05.04.2004 is totally misconceived.

4. Learned AGA could not dispute that
offences
under
Act,
1966
are
noncognizable but said that recovery of
Railway property from Vikas Singh and
statement given by him show prima facie
involvement of applicants also and in any
case, the matter is still under investigation
and, therefore, it cannot be said that
proceedings are liable to be quashed and no
offence against applicants is made out or the
procedure adopted by Investigating Officer
of RPF is patently illegal.

5. Section 3 of Act, 1966 provides
penalty for unlawful possession of Railway
property. Section 6 authorizes a superior
officer or member of Force to arrest any
person who has been concerned in an
offence punishable under Act, 1966 or
against whom a reasonable suspicion exists
of having been so concerned, without an
order from Magistrate and without a
warrant. Section 7 provides that any person
arrested under Act, 1966, shall, if the arrest
is made by a person other than the officer of
the Force, to forward such person, without
delay to the nearest officer of the Force.
Section 8 of Act, 1966 provides:

"8. Inquiry how to be made- (1)
When an officer of the Force receives
information about the commission of an
offence punishable under this Act, or when
any person is arrested by an office of the
Force for an offence punishable under this
Act or is forwarded to him under section 7,
he shall proceed to inquire into the charge
against
such
persons.

(2) For this purpose the officer of
the Force may exercise the same powers
and shall be subject to the same provisions
as the officer in charge of a police station
may exercise and is subject to under the
Code of Criminal Procedure, 1898 (5 of
1898), when investigating a cognizable
case:

Provided that-

(a) if the officer of the Force is of
opinion that there is sufficient evidence or
reasonable ground of suspicion against the
1 All. Keshav Narayan & Anr. Vs. State of U.P. & Anr.
145
accused person, he shall either admit him to
bail to appear before a Magistrate having
jurisdiction in the case, or forward him in
custody to such Magistrate;

(b) if it appears to the officer of
the Force that there is no sufficient evidence
or reasonable ground of suspicion against
the accused person, he shall release the
accused person on his executing a bond,
with or without sureties as the officer of the
Force may direct, to appear, if and when so
required, before the Magistrate having
jurisdiction, and shall make a full report of
all the particulars of the case to his official
superior."

6.
In
the
present
case,
G.D.
(Rojnamcha) No. 37 dated 20.05.2003
shows that after seizure of Railway
property, Vikas Singh was interrogated and
arrested. The matter is still under enquiry
and letter dated 05.04.2004 submitted to
Magistrate concerned is neither a report
within the meaning of Section 173 Cr.P.C.
nor can be said to be a formal complaint
referable to Section 200 Cr.P.C.. The matter
is still at the stage of enquiry by officer of
Force and according to his investigation,
there is no reason to doubt that it shall not
proceed in the manner as contemplated in
law i.e. by filing of a complaint before
Magistrate concerned under Section 200
Cr.P.C. and thereupon Magistrate may issue
the process against accused under Section
204 Cr.P.C. Every document of Enquiry
Officer of Force if addressed to Magistrate,
cannot be treated to be a report under
Section 173 Cr.P.C. and it cannot be said
that he is acting illegally and not in the
manner as provided in law.

7. In State of Bihar Vs. Chandra
Bhusan Singh and Others AIR (2001)
Supreme Court 429, Court said as under:

"Merely because the inquiry was
held by a member of the Force having some
similar powers as are possessed by an
investigating officer, would not make the
complaint to be a report within the meaning
of Section 173 of the Code."

8. In Balkishan A. Devidayal, etc. v.
State of Maharashtra AIR 1981 SC 379,
Court said that an officer conducting an inquiry
under Section 8(1) of Act, 1966 has not been
invested with all powers of an officer incharge
of a police station making an investigation
under Chapter XIV of Cr.P.C. He has no power
to file a charge sheet before the Magistrate
concerned under Section 173 of Cr.P.C.. The
main purpose of Act, 1966 was to invest
powers of investigation and prosecution of an
offence relating to Railway property in RPF in
the same manner as in a case relating to
offences under the law dealing with excise and
customs. The offences under Act, 1966 are
non-cognizable which cannot be investigated
by a police officer under Cr.P.C.. The result is
that initiation of inquiry for an offence inquired
into under Act, 1966 can be only on the basis of
a complaint by an officer of the Force. Court
also held that an officer of RPF could not be
deemed to be a 'police officer' within the
meaning of Section 25 of Evidence Act, 1872
and,
therefore,
any
confessional
or
incriminating statement recorded by him in the
course of an inquiry under Section 8(1) of Act,
1966 cannot be excluded from evidence under
the said section.

9. That being so, submission of
applicants that RPF official is not proceeded
in the matter in accordance with law at this
stage by simply giving information vide
letter dated 05.04.2004 in my view, is clearly
erroneous and has no substance. Moreover,
statement of Vikas Singh who was arrested by
officer of the Force while recovering Railway
property, stating that applicants can explain as
to how Railway property was brought and kept
at the petrol pump cannot be ignored and it
cannot be said that no case against applicants is
made out. Since the matter is still under
146 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation, hence, at this stage such a plea
cannot be entertained.

10. Counsel for applicants has placed
reliance on a Supreme Court's decision in
State of Bihar Vs. Baidnath Prasad @
Baidyanath Shah and Another AIR
(2002) SC 64, wherein request was made
for quashing of proceeding which was
pending for six years but Court declined to
do so. Court observed that delay is
attributable to accused as they challenged
various
orders
passed
in
different
proceedings and, therefore, accused cannot
be allowed to take advantage of delay for
which they are substantially responsible.

11. Reliance is also placed on behalf of
applicants on a Single Judge judgment in
Ishwar Saran Shukla and Another Vs.
State of U.P. (1999) CRI. L.J. 1075 (Ald),
wherein
Court
found
that
because
complainant failed to appear on three dates,
Magistrate has rightly declined to accept the
request of dismissal of complaint and
discharge of accused person by invoking
Section 249 Cr.P.C.. Therein, reliance was
also placed on a Supreme Court's decision
in Common Cause, a Registered Society
v. Union of India AIR (1996) SC 1619,
wherein Court declined to accept the request
of accused for dropping of case since case
was pending for more than two years
observing that an offence under Section 3 of
Act, 1966 does not fall in such category
since offence therein is punishable with
imprisonment for a term which may extend
to five years, or with fine, or with both.

12. I may also add that even otherwise, if
a report submitted by a police officer in a noncognizable offence, in view of Explanation to
Section 2(d) of Cr.P.C., such report can be
deemed to be a complaint and Magistrate can
proceed accordingly but for that reason alone
proceedings are not to be quashed since report
submitted by a police cannot be held to be
without
jurisdiction
merely
because
proceedings were instituted by police officer
after investigation, when he had no power to
investigate. Here also, I am fortified in taking
the above view by the observations made by
Supreme Court in State of Bihar Vs.
Chandra Bhusan Singh (supra), where,
referring to Explanation to Section 2(d) of
Cr.P.C., Court said as under:-

"Section
2(d)
of
the
Code
emcompasses a police report also as a
deemed
complaint
if
the
matter
is
investigated by a police officer regarding
the case involving commission of a noncognizable offence. In such a case, the
report submitted by a police officer cannot
be held to be without jurisdiction merely
because proceedings were instituted by the
police officer after investigation, when he
had no power to investigate."

12. In view of above discussion, I do
not find that proceedings in the present case
can be said to be without jurisdiction and
liable to be quashed.

13. Application lacks merit and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.07.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA J.

CIVIL MISC. WRIT PETITION No.25552 of
2019
(u/s -482 Cr. P.C.)

Makholi & Ors. ...Applicants
Versus
State of U.P &Anr. ...Opposite Parties

Counsel for the Applicants:
Sri
Ashik
Kumar
Dubey.