IMPORTANT POINT
All offences under the Railway Property (Unlawful Possession) Act are not bailable.

JUDGMENT

Arijit Pasayat, J.-This is an interesting litigation where Union of India has questioned the stand taken by the State of Assam. State s appeal was accepted by learned Single Judge of the Guwahati High Court. The controversy lies in a very narrow compass. The issue is whether an application under Section 438 of the Code of Criminal Procedure, 1973 (in short the Code ) could be filed in respect of offences contemplated under the provisions of Railway Property (Unlawful Possession) Act, 1966 (in short the Act ). A learned Single Judge held that the offences were bailable after referring to Section 8 of the Act. A review application was filed for suitable modification on the ground that Section 8 of the Act has not been properly analysed. Reliance was placed on a decision of learned Single Judge of the Madras High Court which was reported in brief in State vs. Sundara Pandian (1979 Crl. Law Journal NOC 194). The review application was rejected on the ground that a case for review was not made out and the view originally expressed was correct.

2. In support of the appeal learned counsel for the Union of India submitted that the learned Single Judge has not kept in view the provisions contained in Section 8 in the proper perspective. The High Court has erroneously come to hold that the accused had a right to get bail provided he was willing to offer surety/security. It was held that only when the accused is not in a position to provide security or surety then only he can be sent to the Magistrate having jurisdiction. It was submitted that effect of the proviso to sub-section (2) of Section 8 has not been kept in view.

3. Learned counsel for the State of Assam supported the judgment of the learned Single Judge in Crl. Original application No. 620/1995 and in Crl.Misc. Case No.219/95.

4. The controversy revolves round the provisions contained in Section 8 of the Act and the same reads as under :

"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.

5. A bailable offence is defined under Section 2(d) of the Criminal Procedure Code, 1973 (in short the Code ). A bare reading of the proviso to sub-section (2) of Section 8 makes the position clear that three situations are envisaged. Two of the three situations are relatable to clause (a) of the proviso. If the officer of the Force is of the opinion that there is sufficient evidence or reasonable ground of suspicion against the accused persons he shall (a) either admit him to bail to appear before a Magistrate having jurisdiction in the case or (b) forward him in custody to such Magistrate.

6. Learned Single Judge appears to have taken the view that the direction that can be given by the officer having jurisdiction of the case is as a corollar