IMPORTANT POINT
Level Crossing Gate -Unintentional breaking of-Offence under Railway Act not made out.

1. Aggrieved by the order passed by Additional Chief Judicial Magistrate, Patiala, dated 11-4-2005, rejecting the prayer of Railway to allow it to proceed against respondent No.2, Union of India through Divisional Security Commissioner, Railway Protection Force, Ambala Division, Ambala, has filed this petition for quashing of the said order. It is further prayed that the railways authorities be allowed/permitted to launch company /proceedings against respondent No.2, Kuldeep Singh under the provisions of the Railways Act, 1989 (hereinafter referred to as "the Act").

2. The facts necessary to get the hang of the issues agitated in the petition are that on 3-10-2004, truck bearing Registration No. PB-10-AK-9553, being driven by respondent No.2, Kuldeep Singh, dashed into the Railway Gate No. 17-A while it was being closed by Cabin Man Ramji Dass. The incident was reported to Station Master, Railway Station, Patiala, who issued Memo dated 3-10-2004 to Company Commander, RPF Post, Patiala and SHO/RP, Patiala. Accordingly, SHO, GRP, registered an FIR No. 59 dated 3-10-2004 under Sections 279, 427 IPC against respondent No.2, the driver of the truck. He was taken into police custody.

3. Grievance made in the petition is that the act of respondent No.2 would amount to an offence under Section 160 of the Act and as such, proceedings ought to have been initiated by an authorised officer of the Central Government as is envisaged under the provisions of Section 179(2) of the Railways Act (Amended) 2003. It is also pleaded that the manner of holding the proceedings as prescribed in Section 180-A to 180-G of the Act was required to be followed and in terms of Section 180-C, any person if arrested was required to be forwarded to the authorised person, as prescribed under Section 179(2) of the Act. Reference is also made to the notification issued by Government of India, Ministry of Railways in the Government of India Gazette dated 17-5-2004, vide which an officer of and above the rank of Assistant Sub-Inspector in the Railway Protection Force has been prescribed as the officer authorised for the purpose of this Act in terms of sub-section (2) of Section 179 of the Act.

4. Petitioner Railways had moved an application before the Court of Additional Chief Judicial Magistrate, Patiala, for transfer of this case to Railway Protection Force, which is rejected on the ground that challan has already been presented and cognizance of the offence taken. It is observed by the Additional Chief Judicial Magistrate, Patiala, that facts in the case would not reveal ingredients of offence under Section 160(2) of the Act against respondent No.2 as intention to commit an offence would constitute an essential ingredient of the said section. A strong grievance is made by the petitioner against this part of the findings.

5. Notice of the petition was issued to respondent Government of Punjab and private respondent No.2. While putting in appearance, respondent No.2 expressed his inability to contest this petition and might of the Union of India on account of his poverty. He was accordingly provided the services of an amicus curiae.

6. A reply on behalf of respondent No.2 is filed. Both the respondents have objected to the prayer made in this petition and have supported the order passed by the Additional Chief Judicial Magistrate, Patiala, which according to them is perfectly legal and justified having regard to the facts and circumstances of the case.

7. I have heard counsel for the parties.

8. Mr. Puneet Jindal, Advocate, appearing on behalf of the petitioner, has raised vehement objection to the observations made by Additional Chief Judicial Magistrate wherein he has held that the provisions of Section 160(2) of the Act are not attracted to the facts of this case. While saying so, A.C.J.M. has observed that a person committing rash and negligent act cannot be said to be possessing intention to do so. He accordingly did not find any valid ground to trans