P.C. Borooah, J. - (1.) This Rule is directed against an order dated April 24, 1974, passed by Sri S.K. Bose, Judicial Magistrate, First Class, Jalpaiguri, rejecting a petition filed by the accused Petitioners praying that a case pending against them before the learned Magistrate under Sec. 3(a) of the Railway Property (Unlawful Possession) Act, 1966, (hereinafter referred to as the Act) may be quashed.
(2.) The facts out of which this Rule arises may briefly be stated as follows: On March 15, 1973, a Sub -Inspector of the Railway Protection Force, New Mai, on the basis of certain information, searched the premises on both sides of the Railway tracks of Dum Dum Railway Station and seized some steel rods from the premises belonging to the accused Petitioners which were suspected to have been stolen from the Railway wagons which had stopped at the said Railway station. On the said allegation the Sub -Inspector, R.P.F., New Mai Junction camp at Dum Dum, lodged an information with the Officer -in charge, R.P.F., New Mai Junction, on March 14, 1973 and New Mai Jn. R.P.F. case No. 2(3) of 1973 was started and was taken up for investigation. After the completion of investigation the prosecution report was submitted against a number of accused persons including the Petitioners for an alleged offence under Sec. 3(a) of the Act and the learned Sub -Divisional Judicial Magistrate, Jalpaiguri, by an order dated June 2, 1973, took cognizance and transferred the case to Sri S.K. Bose, Judicial Magistrate, First Class, for disposal. Thereafter, on April 24, 1974, when the case was fixed for evidence, a petition was moved on behalf of the accused Petitioners praying for quashing of the proceedings on the ground that the investigation was in violation of Sec. 155(2) of the Code of Criminal Procedure, 1898 and as such the entire proceedings were without jurisdiction.
(3.) Mr. Anil Bandhu Ray, learned Advocate appearing on behalf of the Petitioners, has submitted that under Sec. 5 of the Act offences under the Act are non -cognizable offences and as such, Sec. 155(2) of the Code of Criminal Procedure, 1898, is attracted and a Police officer is not empowered to investigate without having previously obtained an order of a Magistrate. In the instant case, no such order having been obtained the entire investigation and the prosecution report submitted on the conclusion of investigation and the cognizance taken by the learned Magistrate on the basis of such report is wholly without jurisdiction.;