An inquiry conducted by an officer of the Railway Protection Force under Section 8(1) of the Railway Property (Unlawful Possession) Act, 1966 is not an investigation under the Code of Criminal Procedure, 1973.

In these cases a common question has been raised for determination whether inquiry, which an officer of the Railway Protection Force holds under Section 8 (1) of the Railway Property (Unlawful Possession) Act, 1966 (Act No. XXIX of 1966) (in short •the Act'), is an investigation within the meaning of the Code of Criminal Procedure. 1973 (in short 'the Code'). A further question which requires consideration is whether on the basis of reports under Section 8 (1) of the Act, the orders taking cognizance of the offence and consequent proceedings are vitiated.

2. All the petitioners are facing trial for the offence under Section 3 of the Act. The allegation is that certain railway properties reasonably suspected of having stolen or unlawfully obtained, were recevered from their possession by the members of the Railway Protection Force. Although with respect to the alleged offence different cases have been instituted, since a common question is involved, for the sake of convenience, tl1ey are being disposed of by this order.

3. The case against accused Rama Shankar Prasad and Hare Krishna Prasad is pending before a Judicial Magistrate at Samastipur, whereas the casas of petitioners Radhey Shyam Nigam and others as also to that of Shrawan Kumar Nigam & ors. are pending at Khagaria.

4. learned counsel appearing on behalf of the petitioners contended that an officer of Railway Protection Force, conducting an inquiry, has not been vested with the powers of an Officer Incharge of a Police Station, making an investigation under Chapter XII of the Code. Therefore, charge-sheet submitted by such officers before the Magistrates can not be considered as a police report under Section 173 of the Code. In that view of the matter, order taking cognizance by a Magistrate considering such charge-sheet as a police report is illegal and, therefore, the continuance of the proceedings are illegal and without jurisdiction.

5. Mr. Das in support of his contention placed reliance over a case of Supreme Court in the case of Bat Krishan A. Devidayal vs. State of Maharashtra, 1980 BBCJ (SC) 131. He also referred to certain orders, passed in different cases, quashing the prosecution started for the offences under Section 3 of the Act on the ground that an officer of the Railway Protection Force had no jurisdiction to investigate a case and submit charge-sheet.

6. In these backgrounds, I would like to examine relevant provisions of the Act and the scope of inquiry conducted by an officer of the Railway Protection Force under Section 8 (i) of the Act. Section 8 of the Act reads thus :

"Enquiry 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 Sec. 7, he shall proceed to enquire 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 of 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 particulars of the case to his official superior."

7. Section 2 (a) defines "Force" for protection of railway property, as defined under Section 3 of the Act. Section 5 provides tha