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Triloki Nath Sinha v. State Opposite Party.
Structured Summary of the Opinion
Factual and Procedural Background
On 7 February 1960 at Railway Station Binabad, while a train was passing from Hanumangarh to Sadulpur, the petitioner, travelling in a First Class compartment, smoked in the compartment. Fellow passengers protested and the petitioner allegedly persisted, claiming he was a railway officer and threatening to have them charged with ticketless travelling. Shri Gauri Shanker, a police officer (Station House Officer), made a complaint under Section 110 of the Indian Railways Act. The Railway Magistrate, First Class, Jodhpur tried and convicted the petitioner by judgment dated 16 July 1960, sentencing him to a fine of Rs. 20/-. The petitioner contended that he had stopped smoking when fellow passengers raised an objection. He moved the Sessions Judge, Ganganagar, who made a reference seeking quashing of the conviction. The Sessions Judge's reference relied principally on two grounds: (1) that the offence under Section 110 of the Indian Railways Act was non-cognizable and the Magistrate lacked competence to take cognizance on a police complaint; and (2) that Section 110 did not apply to railway employees but only to railway passengers.
Legal Issues Presented
- Whether the Magistrate could properly take cognizance and try an offence under Section 110 of the Indian Railways Act when the police officer had submitted a report regarding a non-cognizable offence (i.e., competence to take cognizance on a police report in a non-cognizable case).
- Whether Section 110 of the Indian Railways Act applies to railway servants (employees) as well as other persons (i.e., whether a railway officer travelling in a compartment is covered by the word "person" and the phrase "fellow passengers").
Arguments of the Parties
Petitioner's Arguments
- The petitioner asserted that he stopped smoking when fellow passengers objected.
- He sought quashing of the conviction on the grounds advanced by the Sessions Judge (see below) — in particular challenging the Magistrate's competence and the applicability of Section 110 to railway employees.
Prosecution's Case / Magistrate's Finding
- The Magistrate, accepting the prosecution witnesses' evidence, found that despite protests the petitioner continued to smoke and rejected the petitioner's version.
- A police officer (Shri Gauri Shanker / Station House Officer) made a written complaint under Section 110 which led to proceedings before the Magistrate.
Sessions Judge's Recommendation (as presented in the reference)
- First ground: The Sessions Judge regarded the offence under Section 110 as non-cognizable and held that the Magistrate was not competent to take cognizance based on a police officer's complaint; and that any irregularity could not be cured by Section 537 of the Criminal Procedure Code.
- Second ground: The Sessions Judge held that Section 110 applied only to railway passengers and not to railway employees, and hence the petitioner (a railway officer) should be excluded from its operation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abdul Ali v. Emperor, AIR 1920 Pat 700 | Police reports are not restricted to reports under Chapter XIV of the Code and include reports submitted under Section 24 of the Police Act; breadth of "police report". | Used to support the proposition that a report by a police officer can be a valid basis for Magistrate's cognizance under Section 190(1)(b), even in respect of a non-cognizable offence. |
| Public Prosecutor v. Ratnavelu Chetty, AIR 1926 Mad 865 (Full Bench) | Held that the report of a police officer mentioned in Section 190(1)(b) is not confined to reports of cognizable offences; examination of the police officer is not necessary in such cases. | Relied on as authority that police reports can include non-cognizable matters and that the omission to examine the police officer does not invalidate proceedings. |
| Bholanath Das v. Emperor, AIR 1924 Cal 614 | Expressed views consistent with the proposition that police reports under Section 190(1)(b) may include non-cognizable offences. | Grouped with other decisions as supporting the court's view that a Magistrate may take cognizance on a police report even for non-cognizable offences. |
| Rustom Ardeshir Banaji v. Emperor, AIR 1948 Bom 163 | In the Bombay decision (judgment by Gajendragadkar J.) the court observed that even if investigation/arrest were illegal, the Magistrate might still have jurisdiction; and the case could fall under Section 190(1)(a). | Applied to show that illegality in investigation does not necessarily deprive the Magistrate of jurisdiction to try the case and that cognizance could be taken under an alternative clause of Section 190. |
| Biroo v. State, AIR 1960 All 509 | Another decision expressing views consistent with police reports under Section 190(1)(b) covering non-cognizable matters. | Noted as one of the decisions in support of the conclusion that police reports can form the basis of Magistrate's cognizance even in non-cognizable cases. |
| Durga Prasad v. State, Criminal Reference No. 90 of 1960; AIR 1962 Raj 92 | Discussed the breadth of the word "person" in Section 120 (and by analogy other sections) and held that a restricted meaning excluding railway servants was not warranted; "person" should be given its plain, wide meaning. | Relied upon to support the conclusion that Section 110 (a general provision) applies to railway servants as much as to other passengers, and thus railway employees are not excluded from its operation. |
Court's Reasoning and Analysis
The court addressed the two principal grounds relied on by the Sessions Judge sequentially.
First, on the question of cognizance: the court set out Section 190 of the Criminal Procedure Code, which permits a Magistrate to take cognizance of an offence upon (a) a complaint of facts constituting the offence, (b) a written report of such facts by a police officer, or (c) information from any person or the Magistrate's own knowledge or suspicion. The Station House Officer had submitted a written report alleging commission of an offence under Section 110 of the Railways Act.
The court considered the procedural requirement in Section 200 of the CrPC to examine a complainant and its proviso that when a complaint is made in writing by a court or by a public servant acting or purporting to act in the discharge of official duties, examination is not required. Even if it were doubtful that the Station House Officer was acting in the discharge of his official duties when presenting the report, omission to examine him would be at most an irregularity.
The court relied on Section 529 of the CrPC which provides that if a Magistrate was competent to take cognizance and try the accused, proceedings are not vitiated merely because cognizance was not in strict accordance with clauses (a) or (b) of Section 190(1). The court further distinguished provisions that relate to police investigation (Section 173 and Section 155(2)) — those provisions restrict police investigation of non-cognizable offences without Magistrate's order, but they do not prevent the Magistrate from taking cognizance on a police report. The court concluded that Section 190(1)(b) is not controlled so as to exclude non-cognizable reports; a police report may refer to a non-cognizable offence and still be a valid basis for the Magistrate's cognizance.
The court supported this reading by reference to a series of authorities (Abdul Ali; Public Prosecutor v. Ratnavelu Chetty (Full Bench); Bholanath Das; Rustom Ardeshir Banaji; Biroo v. State), summarizing that the point is well settled: a police report under Section 190(1)(b) is not confined to cognizable offences and omission to examine the police officer is curable.
Second, on the question whether Section 110 of the Railways Act applies to railway servants: the court examined the language of Section 110, noting it is in general terms and uses the word "person" and the phrase "fellow passengers." The court reasoned that a railway servant travelling in a compartment may be as much a passenger as any other person; there is no textual basis in Section 110 to exclude railway servants. The court rejected any artificial distinction based on certain other sections of the Act applying specifically to railway servants. The court specifically relied on the decision of Bhargava J. in Durga Prasad v. State, which held that the word "person" should be given its plain wide meaning and need not be restricted to exclude railway servants.
Having found both grounds advanced in the reference unsustainable — (1) the Magistrate's competence to take cognizance on the police report and (2) the applicability of Section 110 to railway servants — the court concluded the reference should be rejected and the conviction upheld.
Holding and Implications
Holding: Reference rejected; the conviction under Section 110 of the Indian Railways Act is upheld.
Implications:
- The Magistrate was competent to take cognizance of the offence on the written report submitted by the Station House Officer, notwithstanding that the offence was non-cognizable; any omission to examine the police officer was, if anything, an irregularity that did not vitiate the proceedings (reliance placed on Section 190(1)(b) and Section 529 CrPC and supporting authorities).
- Section 110 of the Indian Railways Act applies to "persons" generally; a railway servant travelling in a compartment falls within that description and is not excluded from the section's operation.
- Direct consequence for the parties: the petition to quash the conviction was refused and the fine imposed (Rs. 20/-) stands as per the Magistrate's judgment.
- The opinion treats the questions as covered by existing authorities and long-established principles; it does not purport to lay down any novel legal principle beyond applying settled law to the facts of this case.
Order in brief: The reference was rejected and the conviction under Section 110 of the Indian Railways Act sustained.
1. This is a reference made’ by Shri Chander Singh Moratia, Sessions Judge of Ganganagar for quashing an order of conviction under Section 110 of the Indian Railways Act, passed against the petitioner by the Railway Magistrate, First Class, Jodhpur, sentencing him to pay a fine of Rs. 20/- under the above section by his judgment dated 16th July, 1960. The relevant facts giving rise to the reference are that on 7th February, 1960, at Railway Station Binabad while the train from Hanumangarh to Sadulpur was passing on that route the petitioner, who was travelling in a First Class compartment of the train with certain fellow passengers, started smoking in the compartment. His fellow passengers protested against his smoking but the petitioner persisted in his conduct, asserting that he was a railway officer and threatened that he would get them charged for ticketless travelling. Shri Gauri Shanker, a police officer, made a complaint of the incident under Section 110 of the Indian Railways Act against the petitioner. On that complaint the Magistrate having taken cognizance of the offence proceeded to try and convict the petitioner as aforesaid. According to the case of the petitioner he pleaded that he stopped smoking when the fellow passengers raised objection. The learned Magistrate on the evidence of the prosecution witnesses accepted the case in the complaint that in spite of protest the petitioner continued to smoke and rejected his version to the contrary. Against this order the petitioner moved the learned Sessions Judge who has made this reference for quashing his conviction.
2. The order of reference is an unduly long order; but a perusal thereof shows that file recommendation for quashing the conviction is based mainly on two grounds. The first ground is that the offence under Section 110 of the Indian Railways Act was a non-cognizable offence; and therefore, the Magistrate was not competent to take cognizance on the complaint made by the police officer in respect of any such offence and the irregularity, if any, could not be curer by Section 537 of the Cr PC. The second ground taken by the learned Sessions Judge is that Section 110 of the Railways Act did not apply to railway employees. It applied only to railway passengers. Having examined the matter carefully I am of opinion that none of, the two grounds given by the learned Sessions Judge can be sustained.
3. Section 190 of the Cr PC provides that a competent Magistrate can take cognisance of any offence—
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer;
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.
4. In this case there was a report made by the Station House Officer who was a police officer about the commission of a non-cognizable offence. The Magistrate treated it as a complaint and took cognizance of the offence on the basis of that report. In the case of a complaint of course the Magistrate is required to examine the complainant on oath under Sec. 200 of the Code. There is, however, a proviso to Sec. 200 which says that:
“When the complaint is made in writing nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties.”
5. Even if it is held to be doubtful whether in this case the Station House Officer was acting in the discharge of his official duties in presenting the report in writing which may amount to a complaint, yet the omission to examine the officer can be at best regarded as an irregularity; and if the Magistrate has proceeded to take cognizance and to try the accused, the conviction cannot be set aside merely because of this irregularity. Sec. 529 of the Code provides that if the Magistrate was competent to take cognisance of the offence and to try the accused then merely because the cognisance was not in accordance with Sec. 190, sub-section (1), cl. (a) or clause (b), it will not vitiate the proceedings and the proceedings shall not be set aside merely on the ground of that irregularity. In this case there is no reason to assume that the report submitted by the Station House Officer disclosing a non-cognizable offence could not constitute a report in writing made by a police officer within the meaning of Section 190 of the Cr PC so as to entitle the Magistrate to take cognizance of the offence disclosed in the report.
6. It may be that Sec. 173 of the Code refers to a report on investigation by a police officer in connection with a cognizable offence and that under Sec. 155(2) no police officer is competent to investigate a non-cognizable case without the order of a Magistrate of the First or Second Class having power to try such case. But these sections, in my opinion, do not prevent the Magistrate from taking cognizance of an offence on a report submitted by a police officer even in the case of a non-cognizable offence. These sections merely prevent the police officer from investigating without lawful authority from the Magistrate in the case of a non-cognizable offence; but section 190(1)(b) is not necessarily controlled by these provisions. The report in writing by a police officer under this provision may refer to a report both with reference to a cog-1 nizable as also a non-cognizable offence and in fact to any other offence which may be also non-cognizable and in respect of which the law requires a report to be submitted by a police officer. The point appears to be well settled by a long course of decisions and should now be held to fall beyond the pale of controversy. In Abdul Ali v. Emperor, AIR 1920 Pat 700, Jwala Prasad J., an eminent Judge of that Court observed that:
“The report of the police is not restricted merely to reports under Chapter 14 of the Code upon information lodged to the police but embraces all reports by the police submitted under Section 24 of the Police Act”.
7. An application, therefore, by a police officer to a Magistrate for taking action in respect of any offence against a person amounts to a police report and the Magistrate would be competent to take cognizance of that offence on the report in question within the meaning of clause (b), sub-section (1) of Sec. 190 of the Code. The failure to examine the police officer in such, a case, even if it did amount to an irregularity, was curable and would not vitiate the proceedings. A Full Bench decision of the Madras High Court is also to the same effect (see Public Prosecutor v. Ratnavelu Chetty, AIR 1926 Mad 865). In that Court there appears to have been some difference of opinion on the point, but on reference to the Full Bench it was held that the report of a police officer mentioned in Sec. 190(1)(b) is not confined to a report of a cognizable offence. It includes even the police report in a non-cognizable case and the examination of the police officer in such a case is not necessary. Similar views have been expressed in certain other decisions of various other Courts, see for instance Bholanath Das v. Emperor, AIR 1924 Cal 614, Rustom Ardeshir Banaji v. Emperor, AIR 1948 Bom 163 and Biroo v. State, AIR 1960 All 509.
8. In the Bombay case the judgment was delivered by Gajendragadkar J. as he then was and although the case referred to a non-cognizable offence, yet the Magistrate proceeded to take cognizance thereof on a charge sheet submitted by the Police. His Lordship observed that even if the petitioner had been right in contending that the investigation of such an offence and the arrest of the petitioner were illegal, it would not have followed that the Magistrate had no jurisdiction to try the case. His Lordship further observed that even if the case did not fall under Sec. 190(1)(b), still it could be held that it fell under Sec. 190(1)(a) and would not affect the jurisdiction of the Magistrate to try the case and to take cognizance of the offence. It is not necessary to multiply authorities. I am, therefore, definitely of opinion that the Magistrate was competent to take cognizance of the offence under Section 110 of the Railways Act, even though it was a non-cognizable offence on the police report submitted by the Station House Officer, Hanumangarh.
9. The other point which relates to the interpretation of Section 110 of the Railways Act, in my opinion, is equally untenable. Section 110 of the I Railways Act is in general terms and it applies to all persons. On the face of it does not make any distinction between one passenger or another and a railway officer may be as much a passenger in the compartment as any other passenger. The words used in that section are that if “a person” Without the consent of his fellow passengers in the same compartment smokes except in a compartment specially provided for the purpose, he shall be punishable with fine. I see no reason why any distinction should be made in the application of this section to an offence committed by a railway servant. He comes equally within the definition of the word “person” and the use of the words “fellow passengers” does not make any difference because a railway servant is a passenger in the comportment if he happens to be travelling therein. Some artificial distinction is sought to be made on the ground that certain sections of the Act apply to railway servants in particular. This, however, does not suggest that the other I sections of the Act do not apply to them; and the I matter, in any case, appears to be concluded by the decision given by my brother Bhargava in Durga Prasad v. State, Criminal Ref. No. 90 of 1960 D/- 22-2-1961: (AIR 1962 Raj 92) with which I entirely agree. Bhargava J. there pointed out after discussing a number of rulings on the point, that the word “person” used in Sec. 120 was of wide in port and there was no reason why a restricted meaning should be given to it so as to exclude railway servants from its purview. The word should be given its plain meaning unless it leads to absurdity or is susceptible of another meaning in the Context. He therefore, observed that even if it may be that the provisions of Sec. 120 to some extent overlap the provisions of Sec. 100 and that sections 99 to 105 dealt with offences by railway servants alone, it could not be said that the offences mentioned in sections 106 to 120 of the Act would not relate to railway servants also. These offences can be committed by other passengers just as much as by railway servants who would be equally punishable under those provisions. Both the grounds in my opinion, therefore, are without any substance and the reference must be rejected and the conviction upheld.
IE/I.
10. Reference rejected.
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