C.J.R. Paul, J.
1. This is a petition by the learned Public Prosecutor under Section 482, Criminal Procedure Code, for quashing the order passed by the learned Sub-Divisional Judicial Magistrate, Poonamallee, dated 19th September, 1977 in Crl. M.P. No. 2382 of 1977 and for a direction to the learned Magistrate to consider the petition filed by the prosecution for custody of A-4 and A-5 on merits.
2. The facts are as follows : The Inspector of the Railway Protection Force, who has filed the affidavit in support of this petition, arrested one Kannappan (A-1), one Somasundaram (A-2) and one Mariammal, wife of one Soundara Pandian (A-3) for having been found in unlawful possession of two battery cells belonging to the Railways, interrogated them and recorded the statements given by Kannappan and Somasundaram (A-1 and A-2, respectively), which statements implicated Soundara Pandian (A-4), and Thirupathy Nadar (A-5), who are the respondents herein. On the same day, the Inspector recovered from the house of A-3 and A-4 two more battery cells belonging to the Railways and 5 bags of wheat belonging to the Railways from the house of A-1 and two bags of urea belonging to the Railways from the house of A-2. At that time, the respondents herein were absconding.
3. On 19th September, 1977, the respondents herein surrendered before the learned Sub-Divisional Judicial Magistrate, and the learned Magistrate accepted the surrender and directed the release of the respondents on bail on their executing a bond for Rs. 1,000 with two sureties for a like sum each to appear before his Court on 28th September, 1977 and on the subsequent dates of hearings. He also directed that the respondents should reside at Poonamallee and report themselves before the Court daily at 11 A.M. till 28th September, 1977. Apparently the learned Magistrate was of the view that the offences of which the respondents were being accused were bailable and hence it was that without giving notice to the police, he accepted the surrender and passed the aforesaid order on the petition for surrender and bail on behalf of the respondents. Intimation of the release of the respondents on bail was given to the Inspector, Railway Police Force. On 28th September, 1977, the Inspector, Railway Police Force, filed a petition under Section 437(5) read with, Section 167, Criminal Procedure Code, requesting the learned Sub-Divisional Judicial Magistrate to cancel the bail granted to the respondent and to commit them to the custody of the Railway Protection Force for a period of five days to enable the Railway Protection Force to recover the Railway properties concealed by them. The learned Magistrate thereafter on the same day passed an order on that petition in the following terms:
The request of the Railway Protection Force cannot be complied with, as the offence is bailable. The accused will be bound over to appear on 4th October, 1977.
It is this order which is now sought to be quashed.
4. The main question for determination is whether an offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 of which the respondents are accused, is bailable or whether it is non-bailable. The learned Public Prosecutor has submitted that the offence is not bailable in view of the First Schedule to the Code of Criminal Procedure, and secondly in view of the fact that Section 8 of the Railway Property (Unlawful Possession) Act itself indicates that that offence is non-bailable.
5. Mr. Sam V. Chelliah, the learned Counsel for the respondents, however, contends that the First Schedule to the Code of Criminal Procedure would not apply in this case in view of Section 14 of the Railway Property (Unlawful Possession) Act, and that in fact, the language of Section 8 of the Act itself would show that the offence is bailable. The term 'bailable offence' has been defined in Section 2(a) of the Code of Criminal Procedure of 1973, as meaning an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force, while 'non-bailable offence' means any other offence. In the First Schedule, offences against other laws are made non-bailable or bailable in accordance with the punishment prescribed 'for the offence. According to the First Schedule, if the offence is punishable with imprisonment for less than three (years or with fine only, it will be bailable. But if the offence is one punishable with imprisonment for 3 years and upwards or is punishable with death, imprisonment for life or imprisonment for more than 7 years, it will be non-bailable. Section 14 of the Railway Property (Unlawful Possession) Act, 1966, states that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Invoicing this section Mr. Chelliah, the learned Counsel for the respondents, would argue that the aforesaid provision in the First Schedule to the Code of Criminal Procedure classifying the offences as bailable or non-bailable, when the offences are against other laws, would be inconsistent with Section 8 of the Railway Property (Unlawful Possession) Act, and as such it is Section 8 of the Act which would prevail. It may be noted that there is no Section in the Act which says that the offences under the Act are bailable. Nor is there any section which specifically states that the offences under this Act are non-bailable. Section 8 prescribed the procedure to be followed in the inquiry to be made against the arrested person. Sub-section (1) of Section 8 says:
When any person is arrested by an officer 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 person.
Sub-section (2) says:
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 cognisable case.
The proviso to that section says:
(a) if the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion, against the 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 not 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 full report of all the particulars of the case to his official superior.
Mr. Chelliah, the learned Counsel for the respondents, relies on these two provisos in support of his contention that in view of these provisos, the offences under this Act should be deemed to be bailable. He stresses the words 'either admit him to bail', and argues that these words indicate that the officer of the Force, if he is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, is bound to admit that person to bail. The learned Public Prosecutor, however, lays stress on the words 'forward him in custody to such Magistrate', and argues that those words indicate that the offence is non-bailable inasmuch as if the offence is bailable, the officer of the Force would not have power to 'forward the accused person in custody to the Magistrate.
6. Except a decision of the Bombay High Court in. The State of Maharashtra v. Gendalal 1975 Crl.L.J. 815, there is no other decision brought to my notice, which would be of assistance in deciding the question as to whether an offence under the Act is bailable or not. That case arose out of a revision application filed by the State of Maharashtra against the order passed by the Railway Magistrate, Nagpur, for setting aside the order passed by the Railway Magistrate and for cancelling the bail granted by the Railway Magistrate and granting Railway Protection Force police custody of the accused persons for a period of one week. In that case, certain persons were arrested by the Railway Protection Force Sub-Inspector or Inspector and were produced before the Railway Magistrate, Nagpur, with a copy of the diary and with a request for polios custody of the accused persons to enable some property to be recovered from them. The Railway Magistrate, however, found that there was no provision for such custody and rejected the application. The learned single Judge of the Bombay High Court held that the impression formed by the learned Magistrate that there is no specific provision in the Act for grant of such custody was not correct, and that the Magistrate should have exercised his discretion of either granting police custody or Magistrate custody as per the facts of the case. The learned Judge, did not, however, give any opinion as to whether an offence under the Railway Property (Unlawful Possession) Act is bailable or non-bailable. But the learned Judge also observed that the Magistrate has exercised his independent powers under the Code of Criminal Procedure, viz., of granting bail and that a proper request can be made in the trial Court under Section 497 of the Code of Criminal Procedure, 1898, for cancelling the bail. The aforesaid observations give me the impression that the learned Judge was of the view that an offence under the Railway Property (Unlawful Possession) Act was a non-bailable one, for Section 497 of the Code of Criminal Procedure, 1898, relates to bail in case of non-bailable offences. Further more. It is only under Section 497(5) of the Code of Criminal Procedure, 189S, that the question of cancelling the bail granted would arise.
7. Mr. Chelliah, the learned Counsel for the respondents, seeks support from the decision of the Supreme Court in State of Uttar Pradesh v. Durga Prasad : 1974CriLJ1465 , for his argument that the First Schedule to the Code of Criminal Procedure cannot be invoked in this case. In the aforesaid case, the Supreme Court held that the inquiry held by an officer of the Railway Protection Force under Section 8(1) of the Act cannot be deemed to be an investigation for the purposes of Section 162, Code of Criminal Procedure, and that the scheme of the Act is in important respects different from the scheme of the Code, and there is intrinsic evidence in the Act to show that the provisions of the Code cannot proprio vigore apply to inquiries under Section 8(1) of the Act. The Supreme Court further observed that the exclusion of an important provision of the Criminal Procedure Code in matters arising under the Act is not only reflected in Section 5 of the Act which deals with in fact of criminal trials, but the exclusion is more in evidence in the provisions of Section 14 of the Act, and that in view of the provisions contained in Section 14 of the Act, the Act must prevail over the Code. The Supreme Court further observed that an officer conducting an Inquiry under Section 8(1) of the Act does not possess all the attributes of an officer-in-charge of a police station investigating a case under Chapter IV of the Code and that he possesses but a part of those attributes limited to the purpose of holding the inquiry. The Supreme Court in that case was considering the statements made before the officers of the Force during an inquiry under Section 8(1) of the Act and held that those statements are not on a par with the statements made under Section 161(3) of the Codes of Criminal Procedure. The Supreme Court, however, has not made any observations in the aforesaid case which would help us to determine whether the offences under the Railway Property (Unlawful Possession) Act are bailable or non-bailable. Therefore, we have to look mainly at the words in the provisos (a) and (b) of Section 8 of the Act.
8. Proviso (a) to Section 8 of the Act says that if the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the 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. Only two alternatives are given to the officer of the Force under that proviso. The word 'shall' would govern both the clauses 'either admit him to bail' and 'forward him in custody to such Magisrate'. The third alternative of keeping a person in custody for a period of 24 hours to enable him to complete the investigation &s; could be done by a police officer while conducting investigation under the Criminal Procedure Code is excluded. If it was intended by this proviso to make offences under the Railway Property (Unlawful Possession) Act bailable, the provision for forwarding the accused to such Magistrate would not have been incorporated, for there is no question of forwarding an accused person in custody to the Magistrate in the case of bailable offences when the accused is prepared to offer bail. Mr. Chelliah would read some more words into this proviso. He would add after the word 'or' and before the word 'forward' the words 'if he is unable to offer bail'. But, we cannot insert into the provision of a statute words which are not there. Furthermore, if it was the intention of the Legislature to make offences under the Act bailable, the Legislature would have certainly inserted a provision similar to what is contained in Section 5 of the Act stating that the offences under this Act shall be bailable notwithstanding anything contained in the Code of Criminal Procedure. It may be noted that Section 5 states:
Notwithstanding anything contained in the Code of Criminal Procedure, 1898,an offence under this Act shall not be cognizable.
In the Code of Criminal Procedure, 1973, provision as to bail in the case of persons accused of bailable offences is contained in Section 436, which reads as follows:
(1) when any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail.
The first proviso to that section says that the officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as provided in the Code. Therefore, in my view the proviso (a) to Section 8(2) of the Act gives an indication that the offences under the Act are not liable and that the said proviso in the Act is in no way inconsistent with the first Schedule to the Code of Criminal Procedure, and does not exclude by reason of Section 14 of the Act that provision in the Code of Criminal Procedure. I, therefore, find that the learned Magistrate's view that the offences under the Act are bailable is not correct. In these proceedings, I just want to correct the view of the learned Magistrate, I am not prepared to give any direction or make any observation with regard to the question of cancellation of bail or grant of custody. I think under the circumstances of the case I should leave such matters for the consideration of the learned Magistrate before whom the case is pending. Therefore, this petition is allowed to this extent, viz., that the view of the learned Magistrate that the offences under the Act are bailable is corrected, and it is held that the offences under the Act are non-bailable.