UNION OF INDIA AND ANR. versus STATE OF ASSAM

Citation: [2004] SUPP. 4 S.C.R. 324 · Decided: 10-09-2004 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
D 
E 
UNION OF INDIA AND ANR. 
v. 
STATE OF ASSAM 
SEPTEMBER 10, ·2004 
[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 
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, 197 3, they are non-
bailable. 
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 
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 
G 
H 
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 
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 
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 
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 
A 
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. 
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. 
c 
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 
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 
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 
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. 
E 
F 
..... 
J 
326 
SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R. 
A 
In support of the appeal learned counsel for the Union of India 
B 
c 
D 
E 
F 
G 
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 
prov

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