Order.- This is a petition by the learned Public Prosecutor under section 482, Criminal Procedure Code, for quashing the order passed by the learned Sub-Divisional Judicial Magistrate, Poonamallee, dated 19th September, 1977 in Crl.M.P. No. 2382 of 1977 and for a direction to the learned Magistrate to consider the petition filed by the prosecution for custody of A-4 and A-5 on merits.

2. The facts are as follows: The Inspector of the Railway Protection Force, who has filed the affidavit in support of this petition, arrested one Kannappan (A-1), one Somasundaram (A-2) and one Mariammal, wife of one Soundara Pandian (A-3) for having been found in unlawful possession of two battery cells belonging to the Railways, interrogated them and recorded the statements given by Kannappan and Somasundaram (A-1 and A-2, respectively), which statements implicated Soundara Pandian (A-4), and Thirupathy Nadar (A-5), who are the respondents herein. On the same day, the Inspector recovered from the house of A-3 and A-4 two more battery cells belonging to the Railways and 5 bags of wheat belonging to the Railways from the house of A-1 and two bags, of urea belonging to the Railways from the house of A-2. At that time, the respondents, herein were absconding.

3. On 19th September, 1977, the respondents herein surrendered before the learned Sub-Divisional Judicial Magistrate, and the learned Magistrate accepted the surrender and directed the release of the respondents on bail on their executing a bond for Rs. 1,000 with two sureties for a like sum each to appear before his Court on 28th September, 1977 and on the subsequent dates of hearings. He also directed that the respondents should reside at Poonamallee and report themselves before the Court daily at 11 A.M. till 28th September, 1977. Apparently the learned Magistrate was of the view that the offence of which the respondents were being accused were bailable and hence it was that without giving notice to the police, he accepted the surrender and passed the aforesaid order on the petition for surrender and bail on behalf of the respondents. Intimation of the release of the respondents on bail was given to the Inspector, Railway Police Force. On 28th September, 1977, the Inspector, Railway Police Force, filed a petition under section 437(5) read with section 167, Criminal Procedure Code, requesting the learned Sub-Divisional Judicial Magistrate to cancel the bail granted to the respondent and to commit them to the custody of the Railway Protection Force for a period of five days to enable the Railway Protection Force to receive the Railway properties concealed by them. The learned Magistrate thereafter on the same day passed an order on that petition in the following terms:

“The request of the Railway Protection Force cannot complied with, as the offence is bailable. The accused will be bound over to appear on 4th October, 1977.”

It is this order which is now sought to be quashed.

4. The main question for determination is whether an offence under section 3 of the Railway Property (Unlawful Possession) Act, 1966, of which the respondents are accused, is bailable or whether it is non-bailable. The learned Public Prosecutor has submitted that the offence is not bailable in view of the First Schedule to the Code of Criminal Procedure, and secondly in view of the fact that section 8 of the Railway Property (Unlawful Possession) Act itself indicates that that offence is non-bailable.

5. Mr. Sam V. Chelliah, the learned Counsel for the respondents, however, contends that the First Schedule to the Code of Criminal Procedure would not apply in this case in view of section 14 of the Railway Property (Unlawful Possession) Act, and that in fact, the language of section 8 of the Act itself would show that the offence is bailable. The term “bailable offence” has been defined in section 2(a) of the Code of Criminal Procedure of 1974, as meaning an offence which is shown as bailable in the First Schedule, or which is

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