S.N Jha, J.:— The sole petitioner has been convicted under Section 3 of the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as “the Act”) and has been sentenced to undergo rigorous imprisonment for one year by the trial court, which was confirmed by the appellate court. Hence this revision application.

2. The prosecution case, in brief, is that on 30.10.1972 the Railway Protection Force (hereinafter referred to as “the R.P.F”) consisting of Rakshak Ram Lakhan Mishra, Bachcha Prasad and Ghan Shyam Shahi were escorting Sugar Special Goods Train from Chapra. When the train reached Vidyapatinagar railway station at about 4.00 p.m and left at about 11.25 p.m, the informant Rakshak Ram Lakhan Mishra saw in the torch light that a bag of wheat was lying towards left side of the railway line. On the request of the informant, the railway guard stopped the goods train, the informant got down and rushed towards the bag when he saw that two persons were trying to lift it. The informant caught hold of the petitioner, who was standing near the railway line and other person is said to have fled away. The informant, P.W 1, and others brought the petitioner with the wheat bag to the Bachchwara railway station and a first information report was lodged before the Assistant Sub Inspector R.P.F, who after recording the statement arrested the petitioner. The Assistant Sub Inspector, R.P.F took up investigation and after completing the investigation submitted charge sheet before the Special Magistrate (Railway), Samastipur, who took cognizance of the case under Section 3 of the Act. Subsequently the case was transferred to the court of the Sub-Divisional Judicial Magistrate, Samastipur, who disposed of the same with the conviction and sentence, as stated above.

3. The defence of the petitioner is that he has been falsely implicated in this case at the instance of one of the Rakshak, Chhedi Ram, of Vidyapatinagar R.P.F, since he has refused to do his house hold work.

4. The prosecution in order to substantiate the allegation against the petitioner has examined altogether six witnesses, out of them P.W 1 is the informant, P.W 2 is another Rakshak, P.W 3 is the goods clerk posted at Bachhwara Railway Station, P.W 4 is Nandlal Sinha, another Rakshak in whose presence the said wagon was inspected at Bachhwara, P.W 5 is the Sub Inspector R.P.F, Samastipur and P.W 6 is the Assistant Sub Inspector, R.P.F, who investigated the case and ultimately submitted charge sheet.

5. The learned counsel appearing on behalf of the petitioner has assailed the impugned order of conviction and sentence on the ground that since the R.P.F personnel is not a police officer within the meaning of Chapter XII of the Code of Criminal Procedure, (hereinafter referred to as “the Code”), therefore, he cannot investigate and submit charge sheet pursuant to the investigation made by it, on which any cognizance can be taken by the magistrate. It was further contended that the conviction is wholly illegal since the alleged wheat has not been proved to be a railway property and the same has not been materially exhibited.

6. In support of his contention he has relied upon the decisions in the case of Balkishan A. Devidyal v. State of Maharashtra, 1980 Criminal Law Journal page 1424 and Ramnaumi Prasad v. State of Bihar, 1977 Patna Law Journal Reports page 382.

7. Chapter XII of the Code deals with the information to the police and their power to investigation. Under Section 154 of the Code every information relating to the commission of a cognizable offence, if given orally to an Officer-in-charge of a Police Station shall be reduced to writing by him or under his direction and be read over to the informant; and every such information whether given in writing or reduced to writing aforesaid, shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf from time to time. Section 157 of the Code deals with the procedure for investigation. On completion of the investigation, the officer-in-charge shall forward a report to a Magistrate who is empowered to take cognizance of the offence on a police report in the form prescribed by the State Government.

8. The question for consideration in this case is as to whether the officer of R.P.F making enquiry under Section 8(1) of the Act in respect of an offence under Section 3 of the Act is a police officer conducting an investigation under the Code. This question also came before the Hon'ble Supreme Court for consideration in the case of Balkishan A. Devidyal v. State of Maharashtra (supra). In the said case one of the questions raised before the Hon'ble Supreme Court was as to whether any confession made before the officer of the R.P.F was admissible under the Indian Evidence Act or not. The Hon'ble Supreme Court while considering this aspect observed that in order to bring such officer of R.P.F within the purview of “Police Officer” for the purpose of Section 25 of the Indian Evidence Act, it is not enough to show that such officer exercises some or even many of the powers of a police officer conducting an investigation under the Code and it was held that the officer of R.P.F making inquiry in respect of offences under Section 3 of the Act is not a police officer and any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the Act, cannot be excluded from evidence under the said Section. In the aforesaid case the Hon'ble Supreme Court after considering number of decisions on the point held:—

“Thus, judged by the test laid down in Badku Jyoti Savant's case, which has been consistently adopted in the subsequent decisions noticed above, Inspector Kakade of the RPF could not be deemed to be a ‘police officer’ within the meaning of Section 25 of the Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said Section.”

9. From a perusal of Section 8(1) of the Act, it is clear that an officer of the R.P.F conducting an inquiry under this Section has not been invested with all the powers of an officer incharge of a police station making an investigation under Chapter XII of the Code. From the comparative study of the relevant provisions of the Act and the Code, it is abundantly clear that an officer of the R.P.F making an inquiry under Section 8(1) of the Act does not possess several important attributes of an officer-in-charge of a police station conducting an investigation under Chapter XII of the Code. The character of “inquiry” done under the Act is different from that of an “investigation’ under the Code. The official status and powers of an officer of R.P.F in the matter of inquiry under the Act differs in material aspects from those of a police officer conducting an investigation under the Code. Particularly he has no power to initiate prosecution by filing a charge sheet before the concerned Magistrate under Section 173 of the Code. At best he can file complaint before the Magistrate concerned after holding inquiry under the Act.

10. I may point out here that this view can be strengthened also by reading the provisions of Section 14 of the Railway Protection Force Act, 1957, which provides for the constitution and regulation of a Force called the Railway Protection Force for the better protection and security of the railway property. Section 14 reads as follows:—

“Any superior officer or member of the Force making an arrest under this Act, shall without unnecessary delay, make over the person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken to the nearest police station.”

11. In the instant case the informant after arresting the petitioner produced him before the Sub Inspector of R.P.F after lodging the first information report, who took investigation himself and after investigation submitted charge sheet, on the basis of which cognizance was taken against the petitioner under Section 3 of the Act. It was vehementally argued on behalf of the petitioner that the initial cognizance itself was wholly without jurisdiction because the officer of the R.P.F has no authority to submit charge sheet like the police officer, as envisaged under the Code. According to the learned counsel, at best, if the informant was satisfied that the petitioner had committed an offence, he should have filed a complaint before the Magistrate upon which the Magistrate could have taken cognizance.

12. A similar point came for consideration before this Court in the case of Ramnanmi Prasad v. State of Bihar (supra). In the aforesaid case the Inspector of N.E Railway at Saharsha was supervising the cutting of a drain in front of a saw mill of which the petitioner of the said case was the manager and found some second hand bridge and line sleepers in the premises of the mill. Accordingly, he sent an information to the officer-in-charge of the G.R.P, but the G.R.P did not proceed with the matter. However, the Officer-in-charge of the R.P.F instituted a case, made enquiry and ultimately submitted final report holding that no offence could be made out against the petitioners. In the meantime the Officer-in-charge sent a report which he termed as “forwarding report” in which he did not mention that the properties were stolen railway properties. It appears that the Magistrate treated the final report as a final form and took cognizance of, the offence against the petitioners of the said case including the Manager. A Division Bench of this Court after careful consideration held that the inquiry under section 8 of the Act is not an investigation within the meaning of the Code and thus there can be no final form submitted by the Inquiring Officer. In view of the aforesaid decisions, I find force in the argument of the learned counsel appearing for the petitioner.

13. In the lights of the aforesaid decisions, it is thus obvious that the officer conducting an inquiry under section 8 of the Act could only initiate prosecution by filing a complaint. Not being a police officer, as envisaged under the Code, he could not even submit a final form within the meaning of Section 173 of the Code. It is not in dispute that cognizance was taken on the report of the officer of the R.P.F, who is not the police officer within the meaning of the Code. Therefore, the conviction and sentence passed on such cognizance is bad in law and fit to be set aside. Since the first question raised by the learned counsel succeeds, it is not necessary to deal with the second question.

14. In the result the application is allowed and the conviction and sentence passed by the Courts below is hereby set aside.