1. This is a revision application filed by the State of Maharashtra against the order passed by the Railway Magistrate, Nagpur, praying that the-order passed by him be set aside and the bail granted by the Railway Magistrate in Crime No. 22 of 1974 be set aside and the a'ceused, i.e., the opponents be granted/ R. P. F. Police custody for a period of a week as early as possible.
2, It appears to be a composite order comprising of three things. First, we shall consider the first order passed' by the Railway Magistrate about which-a grievance has been made in this revision application.
3. The facts necessary to appreciate the allegations are that, the Opponents 1 to 3 were serving as Rakshaks in. R. P. F. force attached to the Nagpur (Central Railway.
4. On February 24, 1974, these (three Rakshaks were on duties in the yard, where a wagon is alleged to have been broken open and a theft of two cloth bales is alleged to have taken, place. It is the allegation of the prosecution that these Rakshaks, with the aid of certain (persons, broke open the lock and committed theft of two cloth bales. On February 28, 1974, Rakshak Mohammed Ali. who is opponent No, 3, along with Kishorilal was proceeding to Bhopal along with the stolen cloth bales two in numbers, It. appears that Mohammad Ali and Kishorilal were apprehended and Kishorilal ran away but Mohammad Ali was arrested. After his arrest, after obtaining necessary search warrant, the houses of other Rakshaks were searched and certain property which is alleged to have been stolen from that wagon, viz., the cloth bales, was found in the houses of these Opponents Nos. 1 and 2. On these allegations on the very day, i.e., February 28, 1974, these three Rakshaks. were arrested by the R. P. F. Police S. I. or Inspector and were produced on the next day within 24 hours, i.e., on March 1, 1974, before the Railway Magistrate, Nagpur. While producing the accused-opponents before the Railway Magistrate, a copy of the diary was attached showing what were the steps during the investigation taken by the Inspector and why police custody oj these opponents was necessary. It was prayed that the police custody be granted because the accused have to be interrogated, some property :has to be recovered from them and it has to be found out whether there are also other conspirators along with these accused who have taken part in' the crimes. The learned Magistrate without applying his mind to the diary, held that there was no provision for R. P. F. police custody and hence he rejected the application. It would, therefore, be seen from the order of the learned Magistrate that in his opinion as police custody is granted to the Police Officer investigating the offence under the Code of Criminal Procedure, such police custody cannot be granted to an R. P. F. Police Officer investigating the crimes under the provisions of the Railway Property (Unlawful Possession) Act, 1966. The learned Magistrate appears to be under the impression that there is no specific provision in the above mentioned Act and as such police custody could not.be granted. Hence he remanded the accused to the Magisterial custody till March 7, 1974. In the mean-'while it appears an application for bail was preferred by the opponents and ha released them on bail.
5. The first question that would have to be considered is whether the order passed by the learned Magistrate holding that there is no provision for R. P. F. Police custody is consistent with the provisions of the Act or not. In my opinion, the learned Magistrate has not read the provisions of the Railway Property (Unlawful Possession) Act, 1966 and especially Section 8 thereof. This special enactment is made because it was found that the Railway property was stolen on. a large scale and in order' to bring the offenders to book, special measure was enacted in the year 1966 under which severe punishment is inflicted if a person. ig found and established to be in unlawful possession of the railway property. Section 6 of the Act gives the superior officer of the R, _P. F. the power to arrest without warrant, as is exercised by a police officer to arrest without a warrant of a Magistrate any person who has been concerned in an offence under the powers vested in the police officer by the Code of Criminal Procedure. Under Section 6, a superior officer of R. P. F. can arrest without an order of the Magistrate a person who has been concerned in an offence punishable under this Act. Then Section 7 deals with the disposal of person arrested. We are not concerned with it. Section 8 is material for our purpose and especially Sub-clause (2) thereof. Sub-clause (2) of Section,8 of the Act reads as under:
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, when investigating a cognizable case.' Then there are two more provisos to Section 8. They are not material for the purpose of disposal of this revision application. The Sub-clause (2) lays down that the R. P, F. officer is entitled to exercise the same powers and is subject to the same liabilities as a police officer who is investigating a cognizable offence under the provisions of the Code of Criminal Procedure. We have, therefore, to find out what are the powers of the police officer under the Code of Criminal Procedure for investigating a cognizable offence. Part V of the Code of Criminal Procedure from Section 154 onwards deals with the Information to the Police and their Powers to investigate. It is seen that under Section 157 of the Code of Criminal Procedure, the procedure where cognizable offence is suspected is stated. That means that a report has to be sent to the Magistrate who is empowered to take cognizance of the offence upon the police report and the police officer is entitled without permission of the Magistrate to depute his subordinate to proceed to the spot to investigate the facts and circumstances. Under Section 161 of the Code, the police officer is entitled to record the statements of the witnesses'. Section 162 deals with the statements to police not to be signed. Section 165 of the Code lays down that a police officer incharge of a police station can search after making necessary entries in the books provided in the police station and the manner in which he has to take the search. Section 167 is material for our purposes. It deals with the ^procedure when the investigation cannot be completed within 24 hours. Section 167 lays down 'whenever any person is arrested and detained in custody, and it -appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation if he is not below the rank of Sub-Inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time 'forward the accused to such Magistrate. Sub-section (2) is 'The Magistrate to whom an accused person is forwarded tinder this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole......' It would, therefore, be clear from the provisions of Section 167 that when the police officer thinks that the investigation cannot be completed within 24 hours, then he has to produce the accused before the Magistrate and if he wants the police custody or any other custody, he has to forward the entries from the diary relating to the investigation to the Magistrate concerned and then discretion is given to the Magistrate. He has to exercise that discretion judicially by' granting police custody or Magisterial custody as the circumstances of the case point ou,t to him.
6. In the instant case we find that Section 8(2) lays down that the superior police officer of R. P. F. is entitled to exercise the powers of a police officer investigating the cognizable offence under the provisions of the Code of Criminal Procedure. Therefore, he is entitled to follow the procedure as laid down under Section 167 when investigation cannot be completed within 24 hours. The superior officer had followed the procedure of Section 167 of the Code of Criminal Procedure. He had submitted the entries from the diary. He had also requested the Magistrate to give him the police custody and he had further, produced tha-accused. But the Magistrate failed to exercise the discretion which was vested in him under Sub-section (2) of Section 167 of the Code on the ground that there was no provision of R. P. F. police custody mentioned in the Act. That reasoning of the learned Magistrate, in my opinion, for the reasons stated above, is certainly erroneous and unwarranted by the provisions of law. The learned Magistrate should have exercised his discretion of either granting police custody or the Magisterial custody as per the facts of the case. But what he has done is that he held that he cannot grant police custody, therefore, he remanded the accused per sons to the Magisterial custody. That order is certainly wrong. It is not consistent with the legal provisions. It has, therefore, to be set aside.
7. As regards the other two grievances made by the learned Assistant Government Pleader, viz., that this Court should grant the R. P. F.' custody and the bail should be cancelled. I am unable to agree with these prayers. The Magistrate had failed to exercise the jurisdiction, but many days have passed and thereafter when the accused-opponents were in Magisterial custody, the Magistrate has exercised his independent powers under the Code of Criminal Procedure, viz., of granting of bail. That cannot be interfered with at this stage. A proper request can be made in the trial Court under Section 497 of the Code for cancelling the bail. Similarly, at this stage I cannot also accede to the request of granting police custody because the opponents are already on bail. I would, therefore, not consider those requests and leave it open to the prosecution to make necessary application to the Railway Magistrate for the reliefs which they want. I would, however, say that the order passed by the Railway Magistrate that he has no right under the law t grant R. P. F. Police Custody is certainly wrong. He should have taken into consideration the provisions of Section 167 of the Code of Criminal Procedure even in respect of the offences that are alleged to have been committed under the provisions of the Railway Property (Unlawful Possession') Act, 1966. Therefore, that much part of the order of the learned Magistrate is set aside.
8. The Rule is made absolute as far as the first prayer is concerned.