Holding

Offences under the Railway Property (Unlawful Possession) Act, 1966 are non‑bailable; the High Court’s view that they are bailable is contrary to Section 8 proviso and Schedule I of the CrPC.

Summary

The Union of India appealed against a Guwahati High Court decision that held all offences under the Railway Property (Unlawful Possession) Act, 1966 to be bailable. The Supreme Court examined the proviso to Section 8(2) of the Act and clarified that it merely gives the railway officer two options—admit to bail or forward to a magistrate when there is sufficient evidence or reasonable suspicion, and a third option to release on bond when there is no such evidence. The Court held that the High Court’s interpretation was erroneous and that, under Part II of Schedule I of the Criminal Procedure Code, 1973, offences punishable with imprisonment of three to seven years are cognizable and non‑bailable. Consequently, the offences under the Act are non‑bailable, and an application under Section 438 of the CrPC is not maintainable. The appeal was allowed, setting aside the High Court judgment.

Issues considered

Whether the proviso to Section 8(2) of the Railway Property (Unlawful Possession) Act, 1966 makes all offences under the Act bailable.
Whether offences under the Act fall within Part II of Schedule I of the Criminal Procedure Code, 1973 and are therefore cognizable and non‑bailable.
Whether an application under Section 438 of the CrPC can be filed for offences contemplated under the Act.

Legislation cited

Code of Criminal Procedure, 1898
Code of Criminal Procedure, 1973s. 2(d), s. 438, s. Schedule I Part II

Subjects

bailRailway Property Actnon‑bailable offenceSection 8 provisoSchedule I classificationSupreme Court interpretation

Judgment

A UNION OF INDIA AND ANR.
v.
STATE OF ASSAM

SEPTEMBER 10, ·2004

B [ARIJIT PASAYAT AND PRAKASH PRABHAKAR NAOLEKAR, JJ.]

Railway Property (Unlawful Possession) Act, 1966--Sections 3 and 8-
0jfence under the Act-Bail-Held: Grant of bail is at the discretion
statutorily provided to officer of the force and controlled by prescription
c regarding forming of opinion abo,ut sufficiency of material or otherwise-All
offences under the Act- are not bailable-More so, as offences
under the Act carry imprisonment extending· upto five years, by application
of Part II of Schedule I of Criminal Procedure Code, 1973, they are non-
bailable.

D Interpreting Section 8 of Railway Property (Unlawful Possession)
Act,. 1966, a Single Judge of High Court accepted the stand of respondent-
state that all the offences under the Act have been specifically made
bailable and only when accused was not in a position to provide security/
surety he could be sent to the Magistrate having jurisdiction. Review
E against this judgment was dismissed by High Court.

In appeal to this Court, appellant-Union of India contended that
effect of proviso to sub-section (2) of Section 8 of the Act has been
over(ooked by High Court.

F Allowing the appeal, the Court

HELD : 1. Clause (a) of proviso to Section 8(2) of Railway Property
(Unlawful Possession) Act, 1966 has given two options to the officer to
form opinion i.e. whether there is sufficient evidence or reasonable ground
of suspiclon against the accused persons. It nowhere deals with the right
G of the accused to get bail. The third category is contemplated by clause
(b) of the proviso. This category deals with a case where there is absence
'!f sufficient evidence or reasonable ground of suspicion. In such case
concerned officer has the power to release accused person on his executing
bonds. Therefore, the High Court was not justified in holding that all
H the offences under the Act are bailable. Such a view is contrary to the
324
UNION OF INDIA v. STATE [PASAYAT, J.] 325

provisions contained in Section 8 of the Act. [327-H; 328-A, B, CJ A

2. In Schedule I of the Code of Criminal Procedure, 1973, offences are
classified. Part I deals with offences under the Indian Penal Code and Part
JI deals with 'Classification of offences against other laws'. Undisputedly
the present case is covered by Part II. While classifying offences on the B
basis of punishments prescribed for offences punishable with imprisonment
for 3 years and upwards but not more than 7 years, it is provided that the
offences shall be cognizable and non-bailable. [327-E, F]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 608
of 1999. c
From the Judgment and Order dated 27.6.96 of the Guwahati High
Court at Assam in Cr!. Misc. C. No. 219/95 in Crl. 0. Application No. 620
of 1995.

Mrs. Kiran Bhardwaj, S.N. Terdol and Ms. Sushma Suri for the D
Appellants.

Ms. Krishna Sharma, V.K. Sidharthan and Niraj Kumar for the
Respondent.

The Judgment of the Court was delivered by
E

ARIJIT PASAYAT, J.: This is an interesting litigation where Union
oflndia 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 F
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 !Jailable after
referring to Section 8 of the Act. A review application was filed for suitable .....
J
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 v. 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.
326 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A 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
B
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.

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.
c Misc. case no. 219/95.

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
D any person is arrested by an officer o" 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
E
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:

F 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
G 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
H person on his executing a bond, with or without sureties
UNION OF INDIA v. STATE [PASAYAT, J.] 327

as the officer of the Force may direct, to appear, if and A
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.

A bailable offence is defined under Section 2(d) of the Criminal B
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 C
jurisdiction in the case or (b) forward him in custody to such Magistrate.

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 corollary
of accused's right to get bail. The interpretation is clearly erroneous. It has D
been observed that the discretion to decide whether it is bailable or not cannot
be left to the discretion of the officer. The view overlooks the clear language
of the proviso and the jurisdiction to exercise the discretion is statutorily
provided. The exercise of such discretion is also controlled by the prescription
regarding forming of opinion as regards sufficiency of material or otherwise.
E
The controversy can be looked at from another angle. In Schedule I
of the Code, offences are classified. Part I deals with offences under the
Indian Penal Code and Part II deals with "Classification of offences against
other laws". Undisputedly the present case is covered by Part IL While
classifying offences on the basis of punishments prescribed for offences p
punishable with imprisonment for 3 years and upwards but not more than
7 years, it is provided that the offences shall be cognizable and non-bailable.
However, an exception has been made by Section 5 of the Act, making the
offence non-cognizable. Except that exception, Schedule I of the Code
applies under Section 3 of the Act for the first offence the imprisonment may
extend upto five years and for subsequent offences also similar term is fixed. G
Only for special and adequate reasons to be recorded the minimum can be
one year and two years respectively.

( There are two options given to the officer to form opinion i.e. whether
there, is sufficient evidence or reasonable ground of suspicion against the H
328 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A accused pe~sons. It nowhere deals with the right of the accused to get bail.
The third category is contemplated by clause (b) of the proviso. It inter alia,
provides that when it appears to the officer that there is no sufficient evidence
or reasonable suspicion, he shall release the accused person on his executing
a bond with or without surety as the officer of the Force may direct to appear
B 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 superior officer.
This category deals with a case where there is absence of sufficient evidence
or reasonable ground of suspicion. In such case concerned officer has the
power to release accused person on his exe~uting bonds. Therefore, the High
Court was not justified in holding that all the offences under the Act are
c bailable. Sue~ view is contrary to the provisions contained in Section 8 of
the Act.

Learned Single Judge was, therefore, not justified in holding that since
the offences have been specifically made bailable under the Act, they are
bailable. The conclusion is indefensible. That being so, we set aside the
D
judgment of the Single Judge in Cr!. Original Application no.620/1995 and
Crl. Misc. case no.219/95 dated 27.6.96.

Appeal is allowed.

E v.s.s. Appeal allowed.