ORDER
R.M. Chauhan, J.
1. Applicant Manoj Kumar Gautam, Inspector Railway Police Force, Etawah has moved this application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for setting aside order dated 27th May 2008 passed by the opposite party No. 2 Additional Chief Judicial Magistrate, Railways, Allahabad (in short 'the Magistrate') and to quash further proceedings of Criminal Case No. 3136 of 2008 (State v. Manoj Kumar Gautam) arising out of the aforesaid order pending in the court of the learned Magistrate.
2. The relevant facts giving rise to the present application may be briefly stated as under:
3. Accused Peer Bux, s/o Mauli Bux aged about 50 years, r/o Shastri Nagar, Ward No. 2, Dibiyapur, P.S. Dibiyapur, District Auraiya was arrested by the RPF, Phaphoond, District Auraiya on 21-9-2007 as he was found in unlawful possession of 72 Distribution Valves (DVs) an important accessory to the rail. Consequently, a case under Section 3 R.P.U.P. Act was registered by the R.P.F, Outpost Phaphoond against him at Case Crime No. 2 of 2007 on 21-7-2009 at 10.00 a.m. The investigation of the case was entrusted to the applicant, who produced the accused before the learned Magistrate along with the papers for further detention in judicial custody (remand), as the investigation could not be completed within 24 hours as fixed by Section 57 of the Code. The learned. Magistrate remanded the accused in judicial custody for 14 days, which later on was extended from time to time on the request of the Investigating Officer.
4. The accused moved an application for releasing him on bail but the learned Magistrate rejected his application on 12-X-2007. The accused, thereafter, moved second bail application on 20-11-2007 under the proviso (a) (ii) to Section 167 (2) of the Code on the technical ground that the Investigating Officer could not complete the investigation within 60 days from the date of his arrest, therefore, he was entitled to be released on bail. The learned Magistrate found that the period of 60 days allowed for completion of the investigation under the proviso (a) (ii) to Section 167*(2) of the Code had not expired, consequently, he rejected his application.
5. The accused, thereafter, moved third bail application on 21-XI-2007 under the same proviso on the ground that the Investigating Officer could not complete the investigation within 60 days from the date of his arrest. At this time, the learned Magistrate found that the Investigating Officer could not file any complaint/final report in the matter after expiry of 60 days from the date of the arrest of the accused. The accused was, therefore entitled to be released on bail under the proviso (a) (ii) to Section 167 (2) of the Code. Consequently, the learned Magistrate allowed his ball application on 23-XI-2007. However, he observed that the offence committed by the accused was of serious nature, as he was found in unlawful possession of 72 DVs, which were important accessories to the rail. The accused had ex-chequered criminal history of 32 cases consisting the offences under Sections 302, 307, 411 and 392 IPC and 25 Arms Act etc. In some of the criminal cases he had been convicted too. The Investigating Officer could not complete the investigation within 60 days from the date of the arrest of the accused and so he had indirectly helped the accused to be released on bail on technical grounds. The Investigating Officer had behaved in a most negligent manner in conducting the investigation. The omission on the part of the Investigating Officer for not completing the investigation within 60 days from the date of the arrest of the accused amounts to the offence under Section 17 of the Railways Protection Force Act (in short 'the Act') as well as under Section 176 of the IPC. Consequently, the learned Magistrate while releasing the accused on ball issued a show cause notice to the Investigating Officer (the present applicant) as to why a criminal proceeding be not initiated against him for prosecuting him under Section 17 of the Act as well as under Section 176 of the IPC.
6. The Investigating Officer furnished his explanation in response to the notice issued by the learned Magistrate. The Investigating Officer in his explanation admitted that he could not complete the investigation of the case within 60 days from the date of the arrest of the accused. But he explained that he had already sought for extension of time from his superior officers for completion of the investigation after expiry of the 60 days from the date of arrest of the accused. He had not committed any offence under Section 17 of the Act and under Section 176 of the IPC.
7. The learned Magistrate found that the explanation submitted by the Investigating Officer was not satisfactory. He rather found that the Investigating Officer just to help the accused did not complete the investigation within 60 days from the date of his arrest, who had a long criminal history of 32 cases consisting the offences under Sections 302, 307, 411 and 392 IPC and 25 Arms Act etc. The learned Magistrate found that the Investigating Officer had acted in a most negligent manner in discharging of his official duties to complete the investigation within the stipulated time prescribed under Section 167 (2) of the Code. The omission on the part of the Investigating Officer amounts to an offence under Sections 17 of the Act and under Section 176 of the IPC. Consequently, the learned Magistrate thought it expedient that in the Interest of the department and to discourage the unfair tendencies of the Investigating Officers to draw a criminal proceeding against the delinquent Investigating Officer. He accordingly, took cognizance of the offences suo motu under Section 190(1)(c) of the Code by the impugned order and summoned the Investigating Officer as accused. The Investigating Officer has challenged the impugned order by filing the present application under Section 482 of the Code.
8. The learned Counsel for the applicant argued that where the accused is arrested for commission of cognizable offence and the investigation cannot be completed within 24 hours as envisaged under Section 57 of the Code, the accused will be transmitted to the nearest Magistrate along with the papers relating to the case to authorise his further detention (Judicial remand) under Section 167(2) of the Code. The Magistrate may authorise his detention for 15 days, which can be extended from time to time on the request of the Investigating Officer. Section 167 (2) of the Code provides that the Magistrate cannot authorise the detention of any accused beyond ninety days from the date of his arrest, if the offence is punishable with death, imprisonment for life or imprisonment for a term not less than ten years and sixty days in other offences when the Investigating Officer does not submit police report against the accused under Section 173(2) of the Code after completing the investigation. The accused will be then entitled to be released on bail. Neither Section 167 (2) of the Code nor any other provision under the Code provides for any outer limit for completion of the investigation. The period prescribed under the proviso (a) (ii) to Section 161(2) of the Code only entitles the accused to be released on bail. If the Investigating Officer fails to complete the investigation within the period prescribed by Section 167(2) of the Code, it will not amount to any offence under any law rather the accused shall be entitled to be released on ball. The fact that the Investigating Officer was negligent in completing the investigation within the time schedule, will be looked into by his superior officers and not by the learned Magistrate, who has got no control over the investigation.
9. In this case, the Investigating Officer could not complete the investigation within 60 days from the date of the arrest of the accused but this will not amount to any offence either under Section 17 of the Act or Section 176 of the IPC. The learned Magistrate has illegally taken cognizance of the offence against the accused applicant, which is nothing but the misuse of criminal process. The impugned order as well as the criminal proceeding arising thereon are, therefore, liable to be quashed.
10. I agree with the arguments of the learned Counsel for the applicant. Now the following two points crop up for consideration of the Court:
(i) Whether the applicant (Investigating Officer) has committed any offence under Section 17 of the Act as well under Section 176 of the IPC?
(ii) Whether the learned Magistrate has rightly taken cognizance of the aforesaid offences while passing the impugned order?
11. Now the above points being considered one by one.
(1) So far as the question as to whether the Investigating Officer has committed any offence under Section 17 of the Act or Section 176 of the IPC. is concerned it will be necessary to go through the provisions under Section 17 of the Act as well under Section 176 of the IPC, which are being extracted below:
Section 17 of the Act:
Penalties for neglect of duty, etc.-(1) Without prejudice to the provisions contained in Section 9, every member of the Force who shall be guilty of any violation of duty or wilful breach or neglect of any rule or regulation of lawful order made by a superior officer, or who shall withdraw from the duties of his office without permission, or who, being absent on leave, fails, without reasonable cause, to report himself for duty on the expiration of the leave, or who engages himself without authority in any employment other than his duty as a member of the Force, or who shall be guilty of cowardice, shall be liable, on conviction before a Magistrate, to imprisonment for a period not exceeding six months.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), an offence punishable under this section shall be cognizable.
(3) Notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1974), the Central Government may invest Assistant Inspector-General, Senior Commandant or Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by an enrolled member of the Force and punishable under this Act, or any offence committed by an enrolled member of the Force against the person or property of another member of the Force: Provided that- (i) when the offender is on leave or absent from duty; or (ii) when the offence is not connected with the offender's duties as an enrolled member of the Force; or (ill) when it is a petty offence even if connected with the offender's duties as an enrolled member of the Force; or (iv) when, for reasons to be recorded in writing, it is not practicable for the Commandant invested with the powers of a Magistrate to inquire into or to try the offence, the offence may, if the prescribed authority within the limits of whose jurisdiction the offence has been committed so requires, be inquired into or tried by an ordinary criminal court having jurisdiction in the matter.
Section 176 IPC
Whoever, being legally bound to give any notice or to furnish information on any subject to any public servant, as such, intentionally omits to give such notice or to furnish such information in the manner and at the time required by law, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both;
Or, if the notice or information required to be given respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both;
[Or, if the notice or information required to be given is required by an order passed under Sub-section (1) of Section 565 of the Code of Criminal Procedure, 1898 (5 of 1898) with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.]
From a perusal of the provisions under Section 17 of the Act, referred as above, it appears that certain acts or omissions of member of Railway Protection Force are made punishable, as mentioned therein. From a perusal of the impugned order it transpires that the Investigating Officer in this case did not complete the investigation within 60 days from the date of arrest of the accused. The learned Magistrate was therefore of the view that the Investigating Officer was guilty of the violation of his official duties which amounts to an offence under Section 17 of the Act. This approach of the learned Magistrate is not based on logical interpretation of the provisions under Section 17 of the Act. The fact that the Investigating Officer was guilty of violation of his official duties, was to be determined by his superior officers and not by the learned Magistrate. The provision under Section 167 (2) of the Code does not lay down any outer time limit for completing the investigation rather the proviso (a)(ii) to Sub-section (2) of Section 167 of the Code entitles the accused detained in custody, to be released on bail, if the investigating Officer does not file police report under Section 173 (2) of the Code in the court of the Magistrate empowered to take cognizance of the offence/offences disclosed in the police report within the period prescribed therein i.e., 90 days in offences punishable with death, imprisonment for life or imprisonment for not less than ten years and 60 days in other offences. In this case the Investigating Officer did not complete the investigation within 60 days, therefore, the accused was ordered to be released on bail by the learned Magistrate. It was not within the scope of the learned Magistrate to hold the Investigating Officer guilty for violation of his official duties, who had already sought extension for time from his superior officers to complete the investigation. The finding of the learned Magistrate that the Investigating Officer has committed offence under Section 17 of the Act is misconceived and erroneous.
As regards the offence under Section 176 of the IPC is concerned, from a perusal of the provisions under Section 176 of the IPC, as extracted above, it appears the omission on the part of the Investigating Officer to complete the investigation within 60 days from the date of the arrest of the accused, is not covered under the aforesaid provision. The Investigating Officer, therefore, cannot be said to be guilty under Section 176 of the IPC.
(2) So far as the question of taking cognizance of the offences as detailed above by the learned Magistrate is concerned assuming that the applicant has committed any offence punishable under Section 17 of the Code. Now it has to be seen as to whether the Additional Chief Judicial Magistrate (Railway) Allahabad was empowered to take cognizance of the offence committed by the applicant?
Section 17 (2) of the Act provides that the offence committed under this Section, shall be cognizable and non-bailable. Section 17(3) of the Act empowers the Central Government to invest with the power of the Judicial Magistrate First Class to the Assistant Inspector-General, Senior Commandant or Commandant for the purpose of enquiring into or trying the offence/offences committed by the enrolled member of the Railway Protection Force mentioned therein.
The normal procedure of taking cognizance of an offence committed by any member of the Railway Protection Force (RPF) under Section 17 of the Act by a Magistrate under Section 190(1) of the Code is excluded. However, proviso to Section 17 of the Act provides that the prescribed authority within the limits of its jurisdiction may require that the offences contemplated under the proviso to Section 17 of the Act, as referred above, may be inquired into or tried by ordinary criminal courts. In this case the impugned order does not disclose that the ordinary criminal courts are required by the prescribed authority to inquire into or to try the offences committed by any member of the Railway Protection Force under the proviso to Section 17 of the Act.
12. I am, therefore, of the view that the learned Magistrate had no power to take cognizance of the offences committed by the applicant under 17 of the Act. It appears that the learned Magistrate did not go through the provisions under Section 17 of the Act as well as the provision under Section 176 of the IPC carefully. The impugned order of taking cognizance of offence mentioned therein by the learned Magistrate is therefore illegal which is nothing but abuse of criminal process. The impugned order is, therefore, liable to be quashed. Consequently, the proceedings of Criminal Case No. 3136 of 2008 (State v. Manoj Kumar Gautam) arising out of the impugned order is also liable to be quashed.
13. The application moved by the applicant under Section 482 of the Code is, therefore, allowed and the impugned order of taking cognizance of the offences, mentioned therein is quashed. Consequently, the proceeding of Criminal Case No. 3136 of 2008 (State v. Manoj Kumar Gautam) arising out of the impugned order is also quashed.