1. The applicant in this case has been convicted under Section 101 of the Indian Railways Act IX of 1890, in that he, when on duty as Station Master, did endanger the safety of persons by disobeying certain general rules under the Act. The particular rules that are specified in the judgments of the two lower Courts are Rules 51, 109 and 112. He was sentenced by the trying Magistrate to suffer rigorous imprisonment for one day and to pay a fine of Rs. 300, in default to suffer three months' rigorous imprisonment. On appeal, this conviction and sentence were confirmed by the Sessions Judge.
2. In the application for revision two preliminary points have been taken, as they were in both the lower Courts; and it may be added that the applicant came to this Court even while this trial was pending and raised these two points as being a bar to his trial, but this Court decided that he should take the points at the trial and that it was undesirable and inconvenient that this Court should deal with them without proper materials at the stage at which the applicant sought this Court's intervention. Both the lower Courts have rejected the contention that the trying Magistrate had no jurisdiction, which is repeated before us in revision.
3. The first ground on which it is contended that there was this bar of jurisdiction is baaed on the proviso to Sub-rule (1) of Rule 26 of the General Rules and Orders made under Section 84 of the Indian Railways Act, reproduced at page 178 &c;, of the General Statutory Rules and Orders, Vol. III (1926). The effect of this proviso is that, once the District Magistrate himself has started an enquiry, or has deputed a Subordinate Magistrate to make, such enquiry, under Rule 20 of these rules, the railway police, who otherwise have power under Rule 26 to make an investigation into an accident, are debarred from making such an enquiry. The exact wording of the proviso is :-'Provided that no such investigation (that is, an investigation by the railway police) shall be made when an enquiry has been commenced or ordered under Clause (a) or Clause (b) of Rule 20.' In the present case, the enquiry was ordered by the District Magistrate under Clause (b) of Rule 20. The exact date on which he gave his order has not been elicited in evidence, although the defence called the Chitnis of the District Magistrate with the papers and tried to ascertain the exact date. The Chitnis, however, said that he did not know the date and had no authority to give information from the papers. It is, however, in evidence that on May 28, 1926, the Sub-Inspector received a Yadi from the Magistrate who had been ordered to make the enquiry, asking him to attend at the enquiry at a certain date, and the lower Court, in its judgment, has taken May 28 as the date on which the order of the District Magistrate was made. It is objected that this is unfair to the defence and that the difficulties, that were put in the way of their ascertaining the exact date, were unjustified. It is not, I think, necessary for us to go into that particular point, because the main answer that is made on behalf of the prosecution to this plea (viz., that the police had no authority to make a police investigation and start any proceedings in a Magistrate's Court upon that investigation) is that the investigation had already been completed on May 12, 1926; and that has been held proved by both the lower Courts and there is no reason shown why that finding should not be accepted.
4. I do not think that there is any real prejudice to the defence, for, even presuming that the District Magistrate's order was made before May 28, 1926, it is most unlikely that the Magistrate, who had to make the enquiry at the place where he was stationed, would not at once take the necessary steps to hold that enquiry, and the fact that the Sub-Inspector was not given notice of the enquiry till May 28, 1926, is pretty conclusive evidence that the order of the Magistrate must have been passed within only a few days of that particular date. Therefore, the main question, to my mind, is whether the prosecution is right in contending that, the investigation by the railway police having been completed, the proviso to Rule 26 does not operate to prevent the police subsequently making a report to a Magistrate in regard to an alleged offence by the applicant, which report would give a proper basis for the Magistrate taking cognizance of such offence in accordance with the ordinary provisions of the Criminal Procedure Code. Both the lower Courts have held that that contention is correct. Mr. Thakor has argued at length against that view. But I am not satisfied that that view is unjustified. The rules themselves in various places make a reference to the 'conclusion' of an enquiry or of a police investigation; for instance, Rule 22 enables the enquiring Magistrate 'after taking the evidence and completing the enquiry' to take steps for prosecuting any person, whom he may consider to be criminally liable for the accident. Therefore, this distinction between the conclusion of an investigation and the further prosecution of the case was one that appears to have been present to the mind of the draftsman of these particular rules; and it would have been easy for him to have inserted words which would have made it clear that, in spite of a police investigation being concluded before the Magisterial enquiry had been commenced or ordered, the conduct of any further prosecution of the case should not be in the hands of the railway police and that it would be entirely for the Magistrate to take such further steps, as are mentioned in Rule 22. Then, again, the words used are 'no such investigation shall be made.' It would have been easy to have added the words 'or continued,' to indicate that the investigation, if already started, must at once cease. I do not mean to say that the proviso does not impliedly prohibit such continuation; but at any rate, the wording of the proviso primarily refers only to the making of an investigation after a Magisterial enquiry has been commenced or ordered, and unless there are very clear indications that more than that is really meant by the proviso, I do not think that we would be justified in reading into the proviso words, which are entirely absent and might have been easily inserted. I give due weight to the consideration that Rule 22 shows that the Magistrate who makes the enquiry is primarily intended to be the person, who should decide whether a particular person should be brought to trial in connection with the accident. But, at the same time, I am not prepared to hold merely because there is this provision that the Magistrate should take steps to prosecute persons he considers criminally liable, that the railway police, if they have, in fact, completed an investigation before the time mentioned in the proviso, are impliedly prohibited from exercising the ordinary powers which the officer in charge of a police station has of making a report as to the result of his investigation under Section 173 of the Criminal Procedure Code. The provisions of the Criminal Procedure Code apply, unless there is anything in any enactment for the time being in force regulating the manner of investigating offences connected with railway accidents to the contrary. That is provided for by Sub-section (2) of Section 5. If there is anything contained in the rules under Section 84 that is opposed to the provisions of Section 173 operating in the present case, then undoubtedly the provisions of Section 173 must give way; bat, in my opinion, there is nothing that clearly frustrates the authority of the police-officer mentioned in Section 173 of the Criminal Procedure Code, who has completed his investigation at the time an enquiry under Rule 20 is commenced or ordered. It was the Sub-Inspector, who was technically the officer in charge of the police station at this railway station and so authorized to make the report that is contemplated by Section 173. It is argued that he would not be so empowered, because under Sub-section (2) of Rule 27 under Section 84, the officer deputed to conduct the investigation into the cause of an accident has to be of a rank not lower than that of an Inspector; and therefore it is argued by Mr. Thakor that, in complying with the provisions of Chapter XIV of the Criminal Procedure Code, the Inspector must take the place of the officer in charge of the police station. I do not think that this is the necessary result, because the Criminal Procedure Code does not prevent officers superior to the officer in charge of a police station from making investigations, and even a Magistrate may under Section 159 of the Criminal Procedure Code himself go and investigate- or as it is put there-'hold a preliminary enquiry' on the spot into the offence which has been reported to him. Section 173, in fact, requires the officer in charge of the police station to submit his report as soon as his investigation has been completed, and the evidence is that it was, in fact, submitted to the District Superintendent of Police on May 17, 1926. It is said that the police, hearing of the Magisterial enquiry that had been ordered by the District Magistrate, hurried on the proceedings and did all that they could to prevent the enquiring Magistrate alone deciding who should be prosecuted in the present case. Whether that is true or not, I do not think it is necessary for us to enquire or discuss, because it has often been laid down that, if an officer has a power, the fact of his using it from a bad motive does not invalidate the exercise of that power; and in the present case, in fact, I do not think that there is anything to show that the action of the police did, in fact, lead to any embarrassing result. The District Magistrate, who is the main authority to decide about the action that should be taken, received the report of the enquiring Magistrate, and although, he, at first, suspended the trial of the applicant, he eventually decided that it should go on. The enquiring Magistrate, no doubt, took a different view upon the question whether the applicant should be prosecuted, but that cannot bar the trial, unless the contention is correct that the trying Magistrate had no jurisdiction to act upon the police report that was submitted to him. In ray opinion, he had jurisdiction to.act upon that report, and, therefore, I agree with both the lower Courts that that objection fails.
5. The second objection is that Rule 27, Sub-rule (2), says the officer deputed to conduct the investigation by the railway police shall in no case bo of a rank lower than that of an Inspector, while in the present case the main investigation was conducted by the Sub-Inspector. On the other hand, it has been proved that the Inspector was in touch with the Sub-Inspector during his investigation, that the Inspector verified certain statements, and that he was present on some occasions, when the Sub-Inspector was making enquiries. Both the lower Courts have held that in the circumstances there was no substantial breach of this particular rule and that, in any case, if there was a breach it amounted only to an irregularity, which has not occasioned a failure of justice, and which is therefore curable under Section 537 of the Criminal Procedure Code. I think the main thing to bear in mind is that a conviction or acquittal does not depend upon the question what particular officer actually conducts the investigation which results in his trial. That is determined mainly by the evidence that is given at the trial and considered; and the question whether that evidence has, in the first place, been elicited by an Inspector or by a Sub-Inspector is of very minor importance and does not really affect the result of a trial, except to this extent that the theory is that the higher the rank of the police-officer investigating, the more careful and unimpeachable his enquiry is likely to be. I certainly can see, in a case of this kind, no sufficient reason why the irregularity should not be held to fall under Section 537 of the Criminal Procedure Code. There is, as has been pointed out by the Sessions Judge, authority for that view, in regard to a breach of the provisions of Sub-section (2) of Section 561 of the Code of Criminal Procedure, which says that certain investigations must be made by a police-officer of at least the rank of a Police Inspector. The provision in Sub-rule (2) of Rule 27 is analogous to the present provision in Section 157 that an officer in charge of a police station can depute one of his subordinate officers (not being below such rank as the Local Government may, by general or special order, prescribe in this behalf) to proceed to the spot, to investigate an alleged offence; and if he was not an officer of that particular rank. I would be certainly di-inclined to hold that in ordinary circumstances this fact would cause a failure of justice. In the present case the fact that the applicant took steps to make this objection at an early stage of the case can properly be taken into consideration in determining whether an irregularity of this kind has occasioned a failure of justice. But it saems to me that it cannot possibly be said to have occasioned a failure of justice, especially as the Inspector in this ease did personally take some part in the investigation. Therefore, although I am not prepared to say that in fact the Police Inspector did 'conduct' the investigation within the meaning of Rule 27 yet I think that the omission clearly is an irregularity, which cannot be held to be a bar to a jurisdiction of the trial Court, That disposes of the two preliminary objections.
6. The third point that has been discussed before us is the question of the admissibility in evidence of a telegram, which the applicant alleges that he sent after the accident to the Secretary to the Government of Bombay, P.W.D. The relevancy of this telegram arises out of the discussion in the Sessions Court judgment about a point, on which there was a conflict of evidence, as to the outer signal having been lowered or not. The Sessions Judge has held that the fact that the applicant failed to make mention of the signal being at danger in the telegram, Ex. 83, favoured the view of the witnesses who said that the signal was in fact lowered. The other telegram, of which tho applicant has obtained a copy from Government records, would certainly overthrow that particular argument, if it is proved that he himself was responsible for sending it. I think there is also some force in Mr. Thakor's contention that the deposition of the Permanent Way Inspector in regard to what he learnt about this signal is really inadmissible in evidence, as it amounts practically to hearsay evidence. There is, therefore, a basis for allowing additional evidence in regard to the sending of the second telegram under Section 428 of the Criminal Procedure Code, and I would have assented to that step being taken, were it not perfectly clear that really the question whether this signal was lowered or not is not one on which the conviction of the accused actually rests. It is clear from the judgments of both the lower Courts that he was convicted mainly because he gave 'line clear' under circumstances which were held to constitute a breach of Rules 109 and 112, and the finding that the signal had been lowered amounted to a different breach, viz., a breach of Rule 51. Nothing has been urged before us which leads me to think that the conviction in regard to Rules 109 and 112 is not fully justified upon the findings of the two lower Courts. The contention about there having been previous breaches which were acquiesced in, was, in my opinion, rightly rejected; and it cannot be said that, because there may have been some such previous irregularities, which were not censured or checked by superior authorities, the rules had been modified by proper authority. It seems to me that the conviction of the applicant, at any rate of a breach of Rules 109 and 112, is one that there is no reason for our disturbing in revision. I would only therefore give him the benefit of the doubt in regard to the question of the lowering of the signal and quash the conviction so far as it depends upon a breach of Rule 51. The sentence imposed is certainly very lenient, having regard to the loss of life and property occasioned by the accident and is fully justified by the breach of Rules 109 and 112, in respect of which he has been convicted. With regard to them I would dismiss the application.
6. I agree