H.C. Mishra, J.@mdashThis petition has been filed for quashing the entire criminal proceeding arising out of Jagannathpur P.S. Case No. 26 of
2008 corresponding to G.R. No. 134 of 2008, presently pending before the Court of Session, Chaibasa in S.T. No. 206 of 2009. It has also been
prayed that the order taking cognizance dated 12.12.2008 in the said case as also the order framing charges against the Petitioners by the learned
Additional Sessions Judge-Fast Track Court-V, Chaibasa, by order dated 19.8.2009 be also quashed.
2. According to the prosecution case, the Petitioners, who were the personnel of Railway Special Protection Force and Railway Protection Force,
were returning back after performing their duties on the vehicle of R.P.F. and they were also armed with arms and ammunitions. While returning
back, they came across a road jam by the villagers due to some altercations between the villagers and the drivers of the dumpers transporting iron
ore, due to demand of levy. The R.P.F. personnel, requested the villagers to allow them to pass-bye and when the villagers did not allow them, the
R.P.F. personnel tried to negotiate the jam through the side of the road along with the vehicle, whereupon they were attacked by the villagers by
brickbats. It is alleged that the villagers also used bows and arrows causing injuries to the R.P.F. personnel, caused damage to the vehicle and also
to the arms being carried by them, forcing them to use force. They had to fire in air and ultimately, they also had to resort to firing, in which, two
persons died. As the vehicle of the R.P.F. was badly damaged and some arms were also damaged by the villagers, the R.P.F. personnel had to
leave the vehicle at the road it self and they ran for their safety towards the police station and they also informed the police about the occurrence.
3. On the basis of the information given by the Petitioner Manik Lal, Jagannathpur P.S. Case No. 25 of 2008 was instituted, F.I.R. whereof has
been brought as Annexure-2 to this petition. Subsequent thereto, another F.I.R. was lodged by one Kartik Oraon, the son of one of the deceased
stating that firing was made by the R.P.F. personnel causing death of his father and on the basis of the fradbeyan of said Kartik Oraon,
Jagannathpur P.S. Case No. 26 of 2008 was instituted, corresponding to G.R. No. 135 of 2008 for the offences under Sections 304, 308, 34 of
the Indian Penal Code and Section 27 of the Arms Act, F.I.R. whereof has been made Annexure-1 to this petition, out of which the present
criminal proceedings arise against these Petitioners.
4. Upon investigation, the police submitted charge sheet against the Petitioners, which has been brought as Annexure-6, in which, it is clearly stated
that due to altercation between the dumper drivers and the villagers, there was a road jam, during which, the R.P.F. personnel also came there and
they wanted to negotiate the jam, whereupon the villagers attacked the R.P.F. vehicle, injured them and they also caused damage to the R.P.F.
vehicle and the arms, due to which the R.P.F. personnel had to resort to firing, in which, two persons died. However, on the basis of the charge
sheet submitted against these Petitioners, cognizance was taken by the Chief Judicial Magistrate, Chaibasa by order dated 12.12.2008. It appears
from the documents brought on record by the Petitioners that processes were issued to the Petitioners, upon which, the Petitioners appeared
before the Court below and the case was committed to the court of Session, which was received in the Court of Session on 19.8.2009. On the
same day, the case was transferred to the Court of Additional Sessions Judge, Fast Track Court-V, and Chaibasa for favour of disposal and on
the same day, by order dated 19.8.2009, charges were framed against all these Petitioners.
5. Learned Counsel for the Petitioners has challenged the order taking cognizance, as also the order framing the charges by the Additional Sessions
Judge-Fast Track Court-V, Chaibasa, mainly on two grounds; firstly, it is submitted that mandatory provisions of Section 20(3) of the Railway
Protect Force Act 1957, (herein after referred to as the ""Act"") have not been complied with and without compliance of the same, the criminal
proceedings could not be instituted against these Petitioners. It is further submitted that charge was framed against these Petitioners in a hot haste
without giving any opportunity to the Petitioners for filing application for discharge and without even supplying the police papers; and on this score,
the order passed by the learned Additional Sessions Judge-Fast Track Court-V, Chaibasa framing the charges against these Petitioners cannot be
sustained in the eyes of law.
6. Learned Counsel for the Petitioners has drawn the attention of this Court towards Annexures-2 and 2/1, which are the movement orders, to
show that the Petitioners were sent on official duty along with arms and ammunitions. Annexure-4 is the seizure list, to show that the vehicle of the
R.P.F. was seized in damaged condition along with stones thereon. Annexure-5 is the report to show that the arms of the Petitioners were found in
damaged condition.
7. Learned Counsel has further drawn the attention of this Court towards Section 11 of the Act to show that it shall be the duty of every superior
officer and the member of the Force to protect and safeguard, inter alia, the railways property, passenger area and passengers; and towards Rule
243.2 and further to Rule 243.4 of the Railway Protection Force Rules, 1987 (herein after referred to as the ""Rules"") to show that the use of force
and even the power to open fire are permissible for the protection of life and property in the given situation, if so necessary. Learned Counsel has
submitted that whatever action was taken by the Petitioners, it was only when they were not allowed to move further and they were attacked upon,
in which, the vehicle was badly damaged, arms were also damaged and personnel of the Force were also injured, forcing the Petitioners to use the
force to protect the railway properties and also their lives, as is apparent from Annexure-3, which is the F.I.R. filed by the Petitioner No. 1 and
also Annexure-6, which is the charge sheet, submitted by the police in the present case. It has further been submitted that the action of the
Petitioners were duly protected u/s 20(3) of the Railway Protection Force Act, which reads as under:
20. Protection of acts of members of the Force.-
(1) xxx
(2) xxx
(3) Notwithstanding anything contained in any other law for the time being in force, any legal proceeding, whether civil or criminal, which may
lawfully be brought against any member of the Force for anything done or intended to be done under the powers conferred by, or in pursuance of,
any provisions of this Act or the rules there under shall be commenced within three months after the act complained of shall have been committed
and not otherwise; and notice in writing of such proceeding and of the cause thereof shall be given to the person concerned and his superior officer
at least one month before the commencement of such proceeding
(emphasis supplied)
8. A bare perusal of the aforesaid provision, clearly shows that the provision is mandatory in nature and no action could have been initiated against
the Petitioners without fulfilling the requirements thereof. Learned Counsel has drawn the attention towards the decisions of the Hon''ble Patna High
Court in the case of Naresh Mohan Prasad and Others Vs. State of Bihar and Another, and in the case of D.S. Bhoria and Another Vs. N. Singh,
, wherein, the Hon''ble Patna High Court has held that the prosecution against member of a Railway Protection Force cannot be continued without
the non-fulfillment of the mandatory provision of Section 20(3) of the Act, failing which, the prosecutions were quashed by the Patna High Court.
Learned Counsel has also submitted that once there is a mandatory provision under the Special Statute, the general Statue is to give its way and
the procedure provided in the Special Statute has to be followed. In this connection, learned Counsel has placed reliance upon the decision of the
Hon''ble Supreme Court of India in the case of Raj Kapoor Vs. Laxman, , as also of this Court in Bhotna Mahto v. The State of Jharkhand as
reported in 2009 (2) JLJR 258. Placing reliance of these decisions, learned Counsel for the Petitioners has submitted that criminal proceeding
against these Petitioners cannot be continued and the same is fit to be quashed.
9. Learned Counsel for the Petitioners has also drawn the attention of this Court towards the orders passed by the learned Court below, which
have been brought on record, to show that cognizance was taken against these petitioners on 12.12.2008 and thereafter on several dates, the case
was adjourned for appearance of these Petitioners, for which the summons were ordered to be issued. Lastly on 9.7.2007, the learned Judicial
Magistrate directed the office to issue bailable warrants against the Petitioners fixing 18.8.2009 as the service report of the summons were not
received. It further appears that the Petitioners appeared in the Court below and on 19.8.2009, the commitment notification was received in the
Court of Session, on the same date, the case was transferred to the Court of Additional Sessions Judge, Fast Track Court-V, Chaibasa, and on
the same very day itself, i.e. on 19.8.2009, charges were framed against these Petitioners without supplying the police papers to the Petitioners and
without giving any opportunity to the Petitioners for filing any application for discharge. Learned Counsel has submitted that even this action of the
Court below cannot be sustained in the eyes of law and the order framing the charges is liable to be set aside.
10. Learned A.P.P. appearing on behalf of the State, on the other hand, submitted that there is no illegality in the impugned order, as also in
continuance of the criminal proceedings against these Petitioners, inasmuch as, from the F.I.R. filed by the R.P.F. personnel itself, it is apparent that
the Force was returning back after performing their duties and as such, it cannot be said that the force was used by these Petitioners in exercise of
their official duty. This submission of the learned Counsel cannot be accepted, inasmuch as, admittedly the Railway Protection Force was with
arms and the vehicle, which were the railway properties, which were badly damaged by the mob and it was the duty of the Petitioners to protect
the railway property.
11. After having heard the learned Counsels for both sides and upon going through the records, I am of the considered opinion that Annexure-6,
which is the charge sheet filed by the police after investigation, clearly mentions that the accused persons were the R.P.F. personnel, they were
attacked by the mob and their vehicle and arms were badly damaged and even, the R.P.F. personnel were injured. In this view of the matter, even
though charge sheet was submitted by the police in the Court below, the Court below could not have taken the cognizance of the offence in
absence of the mandatory requirement of Section 20(3) of the Act, which clearly lays down that no proceeding, criminal or civil, can be lawfully
brought against any Member of the Force without complying its mandatory requirements, which had to be followed, failing which, cognizance
could not have been taken by the Court below. I find sufficient force in the submission of the learned Counsel for the Petitioners in assailing the
order passed by the learned Additional Sessions Judge-Fast Track Court-V, Chaibasa in a hot haste and it appears that without giving any
opportunity to the Petitioners to file the application for their discharge and even without taking any precaution to see whether the police papers
were actually supplied to the Petitioners or not, he proceeded to frame the charges against the Petitioners. Accordingly, neither the order passed
by the learned Chief Judicial Magistrate taking cognizance of the offence, nor the order passed by the Additional Sessions Judge-Fast Track
Court-V, Chaibasa framing charges against these Petitioners can be sustained in the eyes of law.
12. For the foregoing reasons, since I have held that the criminal proceeding could not be instituted against these Petitioners, the entire criminal
proceeding in Jagannathpur P.S. Case No. 26 of 2008 corresponding to G.R. No. 134 of 2008, presently pending in the Court of Session at
Chaibasa in S.C. No. 206 of 2009 cannot be continued and the same is, hereby, quashed. This criminal miscellaneous petition is accordingly,
allowed.