M.C. Jain, J.
1. This is an appeal by the State against the judgment of acquittal dated December 28, 1976 passed by the learned Judicial Magistrate (Railways), Jodhpur Criminal Case No. 23 of 1975 under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 (here in after referred to as 'the Act').
2. Briefly stated the prosecution case is that on the intervening night of 26/27-8-1974, Head Rakshak Shri Raghubirsingh and Rakashak Devaram, while on round saw one person dropping coal from the Railway wagon and they further saw the other person, collecting and filling it in bags. Both of them concealed themselves and apprehended the accused-persons namely; Jagdish and Bheekamchand in the presence of Hardev. The Head Rakshak Shri Raghubirsingh prepared the recovery Memos Ex. P/3 & Ex P/6 and, the arrest memos Ex P/4 and Ex P/5 and also made an entry in the diary Ex.P/8. On finding that a case under Section 3 of the Act was made out against them, he recorded in the daily diary Ex. P/8 that case be registered against both the accused-persons under Section 3 of the Act. The Head Rakashak was also in-charge of the out post, Merta Road at that time. He further recorded that C.R. No. will be obtained from the Company commander telephonically. Shri B.G. Sharma, A.S.T. arrived at Merta Road in pursuance of the massage of the Head Rakshak and he began enquiry. He recorded the statements of the accused-persons, Ex. P/9 and Ex./P10. The enquiry was then made over by him to the A.S.I. Shri S.D. Purohit and after completion of the enquiry, he presented a challan in the court of Judicial Magistrate (Railway), Jodhpur. The accused parson, on being charged pleaded not guilty to the charge and claimed to be tried. The prosecution, in this case examined P.W. 1 Shreedhar Purohit, P.W. 2 Head Rakshak Shri Raghubirshingh A.S.I. Railway Protection Force, P.W. 3 Devaram Rakshak & P.W. 4 Hardeen Chowkidar, P.W. 5 Shri N.D. Pandey and P.W. 6 Bhikigiri Sharma in whose presence the accused-persons were arrested and the property was seized. The statements of the accused-persons were recorded and the accused-persons examined two witnesses in defence namely; D.W 1 Sohanlal and D.W. 2 Ramkishan. The learned Magistrate heard the arguments and acquitted the accused-persons on the ground that the case was registered by the Head Rakshak Shri Raghubirsingh, who was not competent and had no authority to register the case and enquiry under Section 8 of the Act is a judicial proceeding within Sub-section (4) of Section 9 of the Act, so the whole trial is vitiated. Consequently, he acquitted the accused-person, hence, this appeal by the State.
3. I have heard Mr. R. Balia, learned Public Prosecutor for the State and Mr. K. C. Gour assisted by Mr. Niranjan Gour, learned Counsel for the accused persons.
4. The first question that arises for consideration is as to whether the Head Rakshak Shri Raghubir Singh was competent to register the case as an officer-in charge of the out-post at the time when the case was registered. Section 2(b) defines the 'Member of the force' and the expression 'Officer of the Force' is defined under Clause (c) of Section 2. Under Clause (b), 'Member of the Force' means a person appointed to the Force, other than a superior officer. Under Clause (c) 'Officer of the Force' means an officer of and above the rank of Assistant Sub-Inspector appointed to the Force and includes a superior officer. Section 5 of the Act lays down that an offence under the Act shall not be cognizable, Section 5 of the Act empowers even a member of the force to effect the arrest of any person, who has been concerned in an offence punishable under the Act or against whom reasonable suspicion exists of his having been so concerned without an order from a Magistrate or without a warrant. The learned Magistrate has found no infirmity in the arrest and seizure of the property effected by the Head Rakshak Shri Raghubir Singh. He has given the reasoning that an enquiry under Section 8 of the Act begins with an act of registration of the case and so, the registration must be, by a competent person, who can only be an officer of the force and according to him, it is not only an irregularity, which is curable but it is an illegal' vitiating the whole trial. He tried to justification conclusion by drawing a distinction between an enquiry under Section 3 of the Act and the investigation under the Code of Criminal Procedure. He expressed that an enquiry under Section 8 of the Act is a judicial proceeding under Sub-section (4) of Section 9 of the Act and looking to that nature of the enquiry, the registration of the case by the Head Rakashak Shri Ragubir Singh is invalid, which will render the trial bad in the eye of law.
5. It may be stated that under Section 7 of the Act, if the arrest has been made by a person other that an officer of the force, the arrested person is required to be forwarded without delay to the nearest officer of the Force, After forwarding the arrested person, the officer of the Forcs to whom the accused-person is forwarded, is required to proceed to enquire into the charge against the arrested person under Section 8 of the Act.
6. The first question that emerges for consideration is as to whether the Head Rakshak Shri Raghubir Singh was competent to register the case. There is no provision under the Act debarring the Head Rakshak from registering the case, when he himself is an officer in-charge of the out-post. Writing out the daily diary is one of the functions of the Head Rakshak under Regulation 5 of the Railway Protection Force Regulations, 1966, A daily diary is required to be maintained under Chapter 27 in item No. 54 under Note 7. It is stated there in that it shall be written under the superintendent of the Officer-incharge, who will be responsible for the entries made therein and must sign it daily. I am not referred to any specific provision as to who is required to register the case. It appears that the mater rests with the departmental regulations or practice. Thus, in the absence of any debarring provision, it can not be found that the Head Rakshak was the competent or had no authority to register the case, when he was incharge of the outpost.
7. The second question, which may arise for consideration is as to whether, the registration of the case is a part of the enquiry. There does not appear to be any reason for the view taken by the learned Magistrate in this regard. The enquiry under Section 8 of the Act, shall begin after registration of the case. Registration of the case is nothing but a formation of the opinion on the basis of the information furnished to the Officer of the Force or which is in his knowledge. Enquiry under Section 8 of the Act will begin after recording of such information and after prima facie finding that the in formation suggests the commission of an offence under the Act. Thus, the act of registration of the case can not be considered as a part of the enquiry. If, it is not a part of the enquiry, then the entire reasoning adopted by the Magistrate falls as he has treated the enquiry to be judicial proceeding and registration of the case has been considered to be a part of the enquiry and he has expressed that this infirmity in the registration of the case vitiates the trial.
8. II will be another serious question to be considered, if it is found that it is an infirmity, whether such an infirmity at all vitiates the trial. How the trial is vitiated, is understandable. The trial is conducted by the Magistrate and the Magistrate is required to decide the case on the basis of evidence recorded by him and the finding will be entered by him on the basis of legal and reliable evidence. If, there is any such defect in an enquiry under Section 8 of the Act or in the investigation, conducted by the police, which may have bearing on the trial, it could be said that the trial is vitiated. Whether Shri Raghubirsingh has registered the case or the Officer of the Force registers the case, how that will affect the trial, can not be conceived. Even when, enquiry under Section 8 of the Act, is a judicial proceeding; still in my considered opinion, the registration of the case by the Head Rakshak would not in any way affect the trial. The whole trial was concluded by the learned Magistrate and the case was also heard. At that stage, the learned Magistrate, on the basis of the finding that the Head Rakshak Shri Raghubirsingh was not competent to register the case, found the trial to be bad. He further found that the defect is of such a serious nature, which according to him, has vitiated the trial.
9. In Bansidhar v. State , it was observed that invalidity of the investigation has no relation with the competence of the court. Where the cognisance of the case has in fact been taken and the case has proceeded to termination the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused there by.
10. Reference was made in this case to a decision of the Supreme Court in H.N. Rishbud v. State of Delhi : 1955CriLJ526 . Their Lordships of the Supreme Court in that case, observed as under:
We are, therefore, clearly also of the opinion that where the cognisance of the case has in fact been taken and the case, has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.
11. In the present case, I have found that there is no provision debarring registration of the case by the Head Rakshak. Even otherwise, it can not be said that on account of the case, having been registered by the Head Rakshak, there has been any miscarriage of justice.
12. Thus, for the aforesaid reasons, the order of acquittal entered by the learned Magistrate can not be sustained and deserves to be set aside.
13. Consequently, the appeal is allowed, the order dated December 28, 1976 passed by the learned Judicial Magistrate (Railways), Jodhpur is not set aside and the case is sent back to him for disposal of the same in accordance with law.