S. Barman Roy, J.
1. Heard Mr. B.K. Sharma, learned counsel for the petitioner. None i s found on behalf of the respondent.
2. This application has been filed by the Union of India, represented by the General Manager, NF Railway and the Chief Security Commissioner, Railway Protection Force, NF Railway, Maligaon for reviewing the order dated 31 -7-95 passed by this Court in Crl. Original Application No. 620/ 95, by which the prayer of Shri Babul Dey for anticipatory bail was turned down holding that offences contemplated under the provisions of the Railway Property (Unlawful Possession) Act, 1966 are bailable and hence no such application under Section 438 CrPC for anticipatory bail is maintainable in respect of the offences under the said Act.
2A. Mr. Sharma, learned counsel for the petitioner submits that the Railway authorities are finding it very difficult to deal with various offenders arrested in connection with various offences under the provisions of the Act. According to him, the accused arrested in connection with offences under the Act makes a prayer for bail soon after his arrest relying upon the aforesaid order dated 31 -7-95 passed by this Court. In view of the aforesaid order passed by this Court, Railway authorities are left with no alternative, but to mechanically allow all such prayers for bail, the moment an accused is arrested. Mr. Sharma, further submits that neither the Indian Railways, nor the Union of India or the NF Railway was party to the aforesaid Crl. Original Application No. 620/ 95. Therefore, the present review applicants were not heard when the aforesaid order dated 31 -7-95 was passed. In these circumstances, it has become extremely difficult for the Railway authorities to deal with various offenders arrested under the provisions of the said Act. Accordingly, this application has been filed on behalf of the review applicants for review or alteration of the order dated 31-7-95.
3. At the very out set, I would like to observe here that in view of what is provided under Section 362 of the Code of Criminal Procedure, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct clerical or arithmetical error. I am therefore, aware of the fact that this Court while exercising power under the provisions of the Code of Criminal Procedure, is totally incompetent to alter or review any judgment or order by which a case was finally disposed of.
4. However, in view of the importance of the legal issues involved in the matter and further because, the present applicants were not heard, I have decided to re-examine all the issues involved afresh as it seems to me that I have no option but to reject this re-view application even on merit. In course of his submission, Mr. Sharma, learned counsel for the re-view applicants referred to various provisions of Railway Property (Unlawful Possession) Act, 1966. Clause-(a) of Section 2 of the Act defines 'Force' which means the Railway Protection Force, constituted under; Section 3 of the Railway Protection Force Act, 1957. Clause (c) of Section 2 thereof further provides that 'Officer of the Force' means an officer of and above the rank of Assitant Sub Inspector appointed to the Force and includes a superior Officer, According to Clause (d) of Section 2 'railway property' includes any goods, money or valuable security or animal, belonging to, or in the charge or possession of, a railway administration. Clause (d) of Section 2 thereof further provides that 'superior officer' means any of the officers appointed under Section 4 of the Railway Protection Force Act, 1957 and includes any other officer appointed by the Central Government as a superior officer of the force.
5. Section 3 of the Act prescribes the penalty for unlawful possession of railway property.
6. Section 4 of the Act deals with punishment for other offences under the Act. Section 5 thereof declares that notwithstanding anything contained in the Code of Criminal Procedure, an offence under this Act shall not be cognizable. Section 6 empowers any superior officer or member of the Force to arrest any person without an order from a Magistrate and without a warrant, who has been concerned in an offence punishable under the Act or against whom a reasonable suspicion exists of his having been so concerned. Section 8 is the most important Section so far as this case is concerned and needs to be quoted and accordingly the same is re-produced below :-
8. INQUIRY HOW TO BE MADE AGAINST ARRESTED PERSONS- (1) 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.
(2) 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 (5 of 1898), when investigating a cognizable case :
Provided that -
(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 a full report of all the particulars of the case to his official superior.
7. Therefore, it is evident that proviso (a) to sub-section 2 of Section 8 of the Act provides 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, of forward him in custody to such Magistrate. Provision of the same so provides that 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 a full report of all the particulars of the case to his official superior.
8. Referring to Section 8, Mr. Sharma, learned counsel for the review applicants submits that an officer of the Force has discretion in the matter of granting bail or to refuse bail. If the officer of the Force can collect sufficient evidence against the accused, it is open for the officer to treat such offence contemplated under the Act as a non-bailable offence and accordingly to refuse bail to the accused, even if he is ready to give bail. His further submission is that when such accused is produced before a Magistrate in custody, such Magistrate may also treat the offences under the Act as non-bailable offence. So, sum and substance of the contention of Mr. Sharma is that the arresting officer may grant bail to the arrested person or he may refuse also treating the offences under the Act as non-bailable. In short, Mr. Sharma, learned counsel for the petitioner submits that in view of the proviso to sub-section 2 of Section 8 of the Act, it is manifest that the offences contemplated under the Act are all non-bailable. Mr. Sharma, further referred to Part-II of Schedule-I of the Code of Criminal Procedure dealing with Classification of offences against other laws. In this regard, he refers to the provisions of the Act and submits that some of the offences contemplated thereunder are punishable with imprisonment which may extend upto 5 years. He then referred to paragraph 2 of Part-II of the Schedule 1 of the Code of Criminal Procedure, which prescribes that offences against other laws which are punishable with imprisonment for 3 years, but' not more than 7 years are to be treated as non bailable. So, relying on these provisions of law and the fact that the offence contemplated under the Act are punishable with imprisonment which may extend upto 5 years, Mr. Sharma has asked the Court to review the earlier order passed by this Court holding that the offences contemplated under the Act are all bailable. I am unable to agree with the contention of Mr. Sharma. In this connection Section 2 of the Code of Criminal Procedure appears to be important which deals with definition of various terms. Clause (a) of Section 2 provides that in this Code, unless the context otherwise requires, 'bailable offence' means 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; and 'non bailable offence' means any other offence. From the aforesaid definition of bailable offence as provided by the Code of Criminal Procedure, it is manifest that while dealing with offences under other laws, Court has to look first into the provisions of the relevant Act which creates the offence in question. More examination of CrPC without examining the provisions of the relevant law which creates the concerned offence may at times mislead us. Section 2 of the CrPC begins with the words 'In this Code' unless the context otherwise requires. These words clearly indicate that if the provisions of the Act creating such offence give indication that such offence is bailable offence, provisions of CrPC cannot by itself help us in a conclusive manner as to whether a particular offence against other laws is bailable or not. The law creating a particular offence may not expressly provide as to whether such offence is bailable or not but it is the context in which definition of the offences occurs may indicate that particular offence is bailable. If the context furnishes us with such indication, whether expressly or impliedly, it shall be held to be decisive irrespective of what CrPC provides. From sub-section 2 of Section 8 of the Act, it would be manifest that when an officer of the force arrest a person on the ground of suspicion against him that he has committed an offence under the provisions of the Act, such officer has already 2 options before him, namely, either to admit him to bail to appear before a Magistrate having jurisdiction in the case or forward him in custody to such Magistrate. A person arrested in connection with a bailable offence, can be released by the arresting officer when such arrested person is ready to give bail. If he fails to give bail, then the arresting officer is left with no other option, but to produce such arrested person in custody before the Magistrate having jurisdiction over the matter. Therefore, it is clear from the above discussion, that when a person is arrested by an officer of the Force, such officer is bound to grant him bail provided the arrested person is ready to give bail. In case, he fails to give bail such officer would be left with no option but to produce such arrested person before the nearest Magistrate in custody and thereafter the Magistrate has to deal with him according to law. If we compare the proviso to sub-section 2 of Section 8 of the Act with Section 436 of the CrPC, we find remarkable similarity between the two provisions except some inconsequential verbal difference. Section 436 of the CrPC lays down that 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 persons shall be released on bail.
9. The question whether an offence is bailable or not, cannot be left to the discretion of the arresting officer. Such question has to be decided in accordance with the provisions of the Act. The provisions of the Act clearly indicate that the arresting officer has two options before him, namely, either to admit the arrested person to bail with a direction to appear before the Magistrate having jurisdiction over the matter, provided the arrested person is ready to give bail or Second option is to produce the arrested person in custody before the concerned Magistrate. Question is this, whether an arresting officer has any discretion to refuse bail to the arrested person when such arrested person is ready to give bail? It appears to me that when two options are open to the arresting officer and the arrested person is ready to give bail, arresting officer has to follow that option which is favourable to accused. He cannot adopt the option which is prejudicial to the arrested person. The provisions of the act clearly gives this indication.
10. In view of the nature of the provisions of the Act, more particularly, in view of the proviso to Sub-section (2) of Section 8 of the Act, it appears to me that the CrPC or the Schedule to the CrPC cannot have any bearing upon the question as to whether the offences under the Act are bailable or not, so long as the provisions of the Act clearly indicate in unambiguous language that an arrested person shall be admitted to bail on condition that he shall appear before the Magistrate, provided he is ready to give bail. It further appears to me that in case the arrested person fails to give bail, he cannot certainly be released on bail and in that case only such arrested person has to be produced before the nearest Magistrate, thereafter the concerned Magistrate has to act treating such offence as bailable.
11. However, Mr. Sharma, learned counsel for the review applicants has referred to a decision of the Madras High Court a gist of which was reported in the State v. Sundra Pandian 1979 Cri LJ NOC 194. It appears that the Madras High Court held - offences under the Act to be non bailable. According to Madras High Court, proviso (a) to Section 8(2) gives an indication that the offences under the Act are not bailable. I am sorry to observe that I am unable to agree with the opinion of the Madras High Court in this regard. No reason appears from the report as to why such offences were treated to be non bailable. I have already held that Section 2(a) of the Code clearly provides that if an offence is made bailable by any other law for the time being in force, the schedule to the Code will not be applicable to such offences. Proviso(a) to Section 8(2) of the Act clearly indicate that the offence contemplated under the Act are bailable. In this situation, schedule to the Code cannot guide us in deciding whether certain offences under the Act are bailable or not. We are to be guided here only by the provisions of the Act in question.
12. From the aforesaid circumstances and for the reasons stated above, I have no hesitation in my mind in holding that when a person arrested by the officers of the Force for commission of any offence under the Act, such arresting officers is bound to offer the arrested person to release him on bail on such terms and condition and with or without surety as may be directed by the arresting officer and if the arrested person is ready to fulfill all the terms and conditions, the arresting officer is bound to release him on bail. If, despite such officer, the arrested person fails to give bail in accordance with the terms and conditions as to sureties etc. as directed by the arresting officer, the arresting officer shall be left with neither option, but to produce such arrested person before the concerned Magistrate. Thereafter the concerned Magistrate shall proceed with the matter treating such offence under the Act to be a bailable offence.
13. In the result, I do not find any merit in this review application. Accordingly, same is dismissed.