JUDGMENT:

1) Rule. Rule made returnable forthwith. By consent the petition is heard for final disposal.

2) It appears that respondent No. 2, the main accused is not served with notice of this proceeding. In view of the nature of dispute this Court holds that it is not necessary to issue notice to the respondent No. 2.

3) The petition is filed to challenge the orders made in Criminal Revision Nos. 245/2014 and 247/2014 by which, the orders made by the learned Judicial Magistrate (Railway) are set aside by the Sessions Court. Prayer is also made to give other equitable reliefs. Both the sides are heard.

4) It appears that one Babu Supdu Tadvi, Divisional Commercial Ticket Inspector, of Bhusawal Railway Station had given complaint against the main accused Sanjay Wanale, who was working as Chief Ticket Inspector that he had misappropriated the money of the railway. As per the practice, the receipt book contains three copies of each receipt. First copy of the receipt is given to the accounts department, the second copy is given to the person from whom amount is taken and the third copy goes to the record of the Commercial Department of the Railway. The complainant Shri. Tadvi has given particulars of the E.F.T (Excess Fair Ticket), receipt books issued to the main accused and the date of submission of the book after use of all the receipts from the book. The amounts are also mentioned. There is allegation that the main accused gave false numbers of money receipts when he submitted the receipt books and misappropriated the amount. In the report it is contended that the amount of more than Rs. 19.6 lakh has been misappropriated by using this modus operandi. It appears that the offence came to be registered by the Railway Police Force only under section 3-A of the Railway Property (Unlawful Possession) Act, 1966. The provision of said section as amended with effect from 15-8-2012 reads as under:-

“3. Penalty for theft, dishonest misappropriation or unlawful possession of railway property.- Whoever commits theft, or dishonestly misappropriates or is found, or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully, be punishable-

(a) for the first offence, with imprisonment for a term which may extend to five years, or with fine, or with both and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees;

(b) for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees.

Explanation.- For the purposes of this section, “theft” and “dishonest misappropriation” shall have the same meanings as assigned to them respectively in section 378 and Section 403 of the Indian Penal Code (45 of 1860).”

5) On the basis of the aforesaid provision learned counsel appearing for the respondent, Railway Protection Force (RPF), submitted that now there are the powers with the RPF to take action under the provision of this Act and further under section 8(2) of the Act the officers of the Force can exercise the same powers as the officer in-charge of a police station may exercise subject to the provisions of the Code of Criminal Procedure when investigation of a cognizable offence is being made.

6) It appears that initially police custody remand of 4 days was granted against the main accused by Railway Magistrate, Bhusawal and when the accused was produced before him with remand report and one more person, accused No. 2, the Magistrate had an opportunity to go through the relevant record. In view of the aforesaid provision and as the Magistrate formed opinion that the offence punishable under sections 467, 471, etc of the Indian Penal Code was also apparently committed, he held that there was no power to make investigation of these offences with the RPF and the matter needs to be investigated by Government Railway Police (G.R.P). The Magistrate made order against the inquiry officer of RPF to hand over papers and the accused to the custody of G.R.P Bhusawal for investigation.

7) This order was challenged by RPF by filing Criminal Revision No. 245/2014. Only accused Nos. 1 and 2 were made party to this proceeding even when the direction was given to the G.R.P of aforesaid nature the State was not made party. In view of these circumstances and on the basis of the submissions made by the counsel for the RPF from the revision, the learned Additional Sessions Judge allowed the revision and set aside the aforesaid order.

8) One more revision was filed by the RPF bearing Criminal Revision No. 247/2014 to challenge the order of the Railway Magistrate. It was made on application given for handing over custody of the accused for investigation of Crime No. 6/2014 registered with RPF. It appears that when the order dated 12-11-2014 was made by learned Judicial Magistrate (Railway), FIR was registered in Lohmarg Police Station Bhusawal at CR No. 189/2014 for offences punishable under sections 465, 467, 471, 409, of the Indian Penal Code and also under section 3-A of the Railway Property (Unlawful Possession) Act, 1966. The order was made to take accused Nos. 1 and 2 in magisterial custody and they were kept in Magisterial custody remand till 26-11-2014. In the Criminal Revision No. 247/2014 this order also came to be set aside and the learned Additional Sessions Judge has observed that in view of the previous orders made by him in the revision, registration of Crime No. 189/2014 by GRP had become redundant.

9) From submissions made and the aforesaid orders it can be said that the Magistrate did exceed the power and jurisdiction. However, it cannot be disputed that the Judicial Magistrate could have taken cognizance of the offences punishable under sections 467, 471 etc of the Indian Penal Code after filing of the report by RPF and in that case the RPF could not have submitted that cognizance could be taken only under section 3-A of the Act. Though this step could have been taken by the Magistrate, this Court is required to ascertain as to whether some steps, which the learned Magistrate intended to take, need to be taken in the present matter. This Court has inherent power and that power can be used if there are circumstances. This Court has gone through the case diary, inquiry diary prepared by the RPF officer. It contains the material which transpired during interrogation of the main accused. The main accused has taken names of other officers and he informed that the other officers were receiving their shares in the amount which he was collecting. When receipts were for the period starting from December 2013, the report was given in the month of November 2014. This Court has to go with the presumption that there must be some method of reconciliation of account when there are two sections in any department and there must be some method of auditing the record with regard to collection of amount by person like the main accused. If the amount was not actually deposited in the treasury, with railway, by the main accused and he was simply submitting the used receipt books during the aforesaid period, during almost 12 months, it cannot be believed that nobody could have noticed such activity of the main accused. Thus there is possibility of involvement of others and existence of big racket as observed by the learned Judicial Magistrate that can also be seen from the material collected during interrogation of the main accused. It appears that crime is registered for the offence of forgery also. Though there is order made by the learned Magistrate, power of police like GRP which is a full fledged police station to take cognizance of cognizable offence cannot be ignored. There is no power with the RPF to make investigation of the offence of forgery and the learned Judicial Magistrate has rightly observed that offences punishable under sections 467, 465, 471 of the Indian Penal Code are probably committed and thorough investigation is required. There is clear possibility of revealing of more information through custodial interrogation which can be done by independent agency like GRP in the matter.

10) One more thing needs to be observed from the record and that is arrest of accused No. 2. This Court has gone through the allegations made as against accused No. 2. It is not only surprising but shocking that accused No. 2 who could have been the witness to say about the habits of accused No. 1 is made accused and he is arrested. Allegation made against him is that he had given loan to accused No. 1 and for the repayment of the loan accused No. 1 was giving some amount by way of installment to accused No. 2 and that way some money which was misappropriated by accused No. 1 had probably come to the hands of accused No. 2. Amount of Rs. 50,000/- is shown to be recovered from possession of accused No. 2 by RPF. However, papers of investigation do not show that further inquiry on the basis of information revealed as against other officers of the railway was made. These circumstances are sufficient to prima facie show that there will not be fair investigation and there is possibility of covering up of the things. Such things need to be investigated thoroughly so that the other culprits are booked and fear is created in the minds of persons who are using similar modus operandi for misappropriating Government money.

11) For the aforesaid reasons this Court holds that investigation needs to be done of the entire matter by Government Railway Police which has full fledged powers of police station and investigation can be done as provided in Code of Criminal Procedure even in respect of offences of forgery punishable under section 467 of the Indian Penal Code. Even if it is presumed that the order made by the learned Magistrate was not as per the jurisdiction vested in him, there was the power with the police to take cognizance of the aforesaid cognizable offences and in view of this circumstance, it was not open for the learned Additional Sessions Judge to observe that registration of crime at CR. No. 189/2014 has become redundant. This Court is allowing the Lohmarg Police station to make investigation of Crime No. 189/2014.

12) In view of the aforesaid circumstances, the investigation of the entire matter needs to be made by the Government Railway Police and accordingly the investigation is transferred to Government Railway Police. The new investigating agency is to see that the limits given in section 167 of the Code of Criminal Procedure are not crossed while asking for police custody remand. It appears that accused No. 1 is still in custody and so it will be open to the Government Railway Police to approach the concerned Magistrate for taking police custody. It appears that same learned Magistrate needs to be approached by the the GRP and RPF. However, only if the new investigating agency feels it necessary, they can ask for custody of accused No. 2 and to that extent the order made by this Court on 3-12-2014 stands modified. He is on interim bail and so if the matter is moved for regular bail the Magistrate is to hear the GRP and not the RPF. The papers of investigation, inquiry are to be handed over to the Government Railway Police by the present officers of the Railway Protection Force. In those terms the writ petition is allowed. Rule is made absolute.

13) The learned Assistant Solicitor General requests for stay of this order. The request is rejected. Authenticated copy of the order be supplied to the parties.