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Kantilal Takhatmal JaIn and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 729 of 1968
Judge
Reported inAIR1970Bom225; (1968)70BOMLR757; 1970CriLJ799; ILR1969Bom1172; 1969MhLJ199
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 4, 5(2), 57(1), 62, 114, 155, 155(1), 155(2), 156(1), 156(2), 173, 190(1), 207A, 250, 251A, 252, 260(1), 262, 263, 264, 265, 420, 438, 466, 472, 474 and 510; Defence of India Rules, 1962 - Rules 9, 36, 83, 125(2), 131B, 131B(5), 133B, 133J, 152 and 154; Customs Act - Sections 104(4), 134, 135 and 137; Indian Penal Code (IPC), 1860 - Sections 34, 161, 193, 204, 385 and 414, ; Essential Commodities Act, 1955 - Sections 7; Bombay District Police Act - Sections 61
AppellantKantilal Takhatmal JaIn and anr.
RespondentState
Appellant AdvocateAshok Desai and ;H.G. Mehta, Advs.
Respondent AdvocateV.H. Gumaste, Govt. Pleader
Excerpt:
criminal procedure code (act v of 1898), sections 155, 173, 190, 5(2), 252, 251a - customs act (lii of 1962), sections 135, 137, 104(4)--defence of india rules, 1962. rules 131b, 152--police filing charge-sheet in respect of offence under section 135, customs act after investigation and after obtaining sanction under section 131 of customs act--whether investigation illegal and magistrate could take cognizance of offence.;the police filed a charge-sheet before a magistrate against the accused alleging that they were guilty 9f an offence under section 185 of the customs act, 1962, read with section 34 of the indian penal code, 1860. before filing this charge-sheet the police after investigation had taken the sanction of the collector of central excise purporting to be under section 137 of.....order1. the petitioners, who are the accused in criminal case no. 429/p of 1968 on the file of the learned additional chief presidency magistrate. 3rd court, esplanade, bombay, have filed this application in revision praying for setting aside the order passed by the learned magistrate on june 14, 1968, in the said case, rejecting an application of the petitioners requesting the court to dismiss the case on the ground that the police had no power to file a charge-sheet in respect of the offence under section 135 of the customs act. 1962 for which the accused are being tried.2. the few facts which are relevant to this application are as under :the two petitioners kantilal jain (accused no. 1) and dinesh desai (accused no. 2) claim to be traders. petitioner no. 1 claims to be a broker in.....
Judgment:
ORDER

1. The petitioners, who are the accused in Criminal Case No. 429/P of 1968 on the file of the learned Additional Chief Presidency Magistrate. 3rd Court, Esplanade, Bombay, have filed this application in revision praying for setting aside the order passed by the learned Magistrate on June 14, 1968, in the said case, rejecting an application of the petitioners requesting the Court to dismiss the case on the ground that the police had no power to file a charge-sheet in respect of the offence under Section 135 of the Customs Act. 1962 for which the accused are being tried.

2. The few facts which are relevant to this application are as under :

The two petitioners Kantilal Jain (accused No. 1) and Dinesh Desai (accused No. 2) claim to be traders. Petitioner No. 1 claims to be a broker in jewellery and petitioner No. 2 professes to carry on printing business. On the basis of some information received by the Officers of the C. B. I. Economic Offences Wing, they raided certain premises situate at 220-224 Kalbadevi Road. Third floor, Bombay on June 28, 1966. The petitioners were found in the premises. It is alleged by the prosecution that the petitioners were carrying on the business of smuggling of gold. The premises were in actual possession of petitioner No. 1 Kantilal Jain and his brother Motilal Jain. As soon as the officers raided the premises, it is alleged, Dinesh Desai, petitioner No. 2 rushed towards the gallery in a vain bid to escape, but he was chased and caught. There was a bag in his hand which contained 24 rectangular pieces of gold with foreign marking, viz., Comuis Neoux Pheciux, Paris 10 tolas 999. In the main hall to the south of the place there was a wall clock. Petitioner No. 1 was sitting on a mattress. In the clock 18 rectangular pieces of gold with the same foreign markings weighing 10 tolas each were found. Fourteen rectangular pieces of gold with similar marking and weight were found below the mattress on which the petitioner No. 1 was sitting. There was also a cupboard on the right side of the place where Kantilal was sitting, and in the cupboard Indian currency valued at Rs. 9100 together with a piece of paper bearing accounts in Gujarati were found. Five hundred and sixty tolas of gold consisting of 56 rectangular pieces and the total currency of Rs 12,550 and the other documents were seized as a result of the raid by the C. B. I., E O. W. Officers. After further investigation the sanction of the Collector of Central Excise purporting to be under Section 137, was taken by the said Police Officers. Motilal the brother of petitioner No. 1, died in a house collapse before the filing of the charge-sheet. The Inspector of Police, C. B. I., E. O. W., Bombay therefore filed a charge-sheet in the Court of the Additional Chief Presidency Magistrate, Esplanade, Bombay, on January 22, 1968 against the two petitioners alleging therein that the two petitioners were guilty of the offence under Section 135 of the Customs Act for being in possession of the said pieces of gold, which were smuggled. According to the prosecution both of them were guilty of the offence under Section 135 of the Customs Act read with Section 34 of the Indian Penal Code.

3. After the accused appeared in the case and three adjournments of the case for some reason or the other were granted, on June 14, 1968, an application was filed on behalf of the accused praying that the case should be dismissed because the offence under Section 135 is a non-cognizable one in view of the provisions of Section 104(4) of the Customs Act which lays down:

'Notwithstanding anything contained in the Code of Criminal Procedure. 1898, an offence under this Act shall not be cognizable.'

It was submitted on behalf of the accused that as the offence was a non-cognizable one, the investigation carried out by the C. B. I. E. O. W. was illegal, inasmuch as the said police officers had not been authorised by an order of a Magistrate as required under Section 155 (2) of the Criminal Procedure Code. It was further submitted that the charge-sheet that was filed was not a complaint within the meaning of Section 190(1)(a) of the Criminal Procedure Code & hence the Court had no jurisdiction to proceed with the matter even though the Collector of Central Excise had given the sanction for the prosecution. The petitioners also submitted that the only authority who could file a complaint in respect of the offence was the authority under the Customs Act, because under Rule 131-B (5) of the Defence of India Rules. 1962, no Court or Tribunal can take cognizance of any offence except on a complaint being made by Collector of Customs, Central Excise or Land Customs.

4. The application was resisted on behalf of the Stats by the Prosecutor on the ground that the police in the present case, started investigation of the cognizable offence under Rule 131B of the Defence of India Rules, 1962 and while investigating that offence, the facts disclosed the commission of an offence under Section 135 of the Customs Act which they admitted to be non-cognizable. Thus the police investigated both the offences under Rule 131B of the Defence of India Rules and Under Section 135 of the Customs Act, 1862. It was submitted that as the police were investigating principally a cognizable offence the police were entitled to investigate the non-cognizable offence also without obtaining the permission from the Magistrate under Section 155 of the Criminal Procedure Code. It was, therefore contended that the charge-sheet which was filed was a chargesheet under Section 173 of the Criminal Procedure Code and hence the procedure that was to be followed at the trial of the case was the one prescribed under Section 251A of the Criminal Procedure Code.

5. The learned Presidency Magistrate overruled the contentions of the petitioners. He held that the police initially Started investigation of a cognizable offence under Rule 131B of the Defence of India Rules. As the facts which constituted that offence also constituted an offence under the Customs Act, the police were entitled to investigate the latter offence along with the former one. The learned Magistrate relied on the decision of the Supreme Court in Pravin Chandra Mody v. State of Andhra Pradesh, : 1965CriLJ250 and held that the police were entitled to file one chargesheet with respect to both the cognizable as well as the non-cognizable offence. However, the learned Magistrate came to the conclusion that since Sub-rule (5) of Rule 131B of the Defence of India Rules bars the jurisdiction of a court to take cognizance of an offence under that Rule except on a complaint made by a Collector of Customs, the police had chosen to report an offence merely under Section 135 of the Customs Act. He further observed:

'In view of that provision if the police had chosen to prosecute the accused for committing an offence under Rule 131B, they would have been required to request the Collector of Customs to file a complaint. In that case the accused would have been entitled to the advantage of the procedure enacted by Section 252 of the Criminal Procedure Code. If the initial investigation had not related to the offence under the Defence of India Rules, but if the offence under the Customs Act were to be investigated by itself, then the police would have been required to take the permission of a Magistrate before starting the investigation. In the alternative the customs officers themselves would have been required to investigate the offence and in that case they would have been required to file a complaint after obtaining the necessary sanction as contemplated by Section 137 of the Customs Act. In that case the accused would have been entitled to the advantage of the procedure prescribed by Section 252 of the Criminal Procedure Code.'

He further held that if the - procedure under Section 251A of the Criminal Procedure Code was to be followed on the basis that the chargesheet filed by the police was under Section 173, the accused would be prejudiced inasmuch as he would lose the advantage of cross-examining the witnesses both before the charge was framed and after the charge was framed. He, therefore, ordered that although the contention of the accused that the cognizance of the alleged offence under Section 135 of the Customs Act was not properly taken by the Court was rejected, the procedure to be followed for the trial would be the one prescribed under Section 252 of the Criminal Procedure Code.

6. The petitioners have filed this application in revision praying for setting aside the said order in so far as it rejected the petitioners' contention that the court had no power to take cognizance of the offence under Section 135 of the Customs Act. Mr. Desai the learned counsel for the petitioners, has submitted that the offence under Section 135 being non-cognizable, the police had no power to make any report with respect to that offence. According to him, Section 155 Clause (2) of the Criminal Procedure Code is mandatory; and he submitted that the violation of these mandatory provisions would render the entire investigation and report illegal and hence if the court takes cognizance of an offence on the basis of that report, the Court would be committing an illegality. There can be no doubt that Section 155(2) of the Criminal Procedure Code is mandatory and violation thereof by the police would be illegal.

7. Mr. Desai further contended that the assumption made by the learned Presidency Magistrate that the offence under Rule 131B of the Defence of India Rules, 1962 is a cognizable offence is incorrect because, according to him, the only provision in the Defence of India Rules which enabled the police to arrest offenders who contravened the provisions of the Defence of India Rules is Rule 152 which mentions the contravention of several rules as well as the contravention of any order or direction made or given under any of the said rules, but it does not mention Rule 131-B. Mr. Desai, therefore, contends that apart from Rule 152, there is no other power in the Police to arrest without a warrant any person for the contravention of the Defence of India Rules. Mr. Desai further submitted that Rule 131-B Clause (5) of the Defence of India Rules expressly lays down --.

'Notwithstanding the provision of Rule 154, no Court or Tribunal shall take cognizance of any offence under this Rule except on a complaint being made by a Collector of Customs, Central Excise or Land Customs'.

Rule 154 referred to in the said Rule is as under:

154. 'Cognizance of contraventions of Rules, etc.

(1) No court or Tribunal shall take cognizance of any alleged contravention of these Rules, or of any order made thereunder, except on a report in writing of the fact constituting such contravention, made by a public servant.

(2) Proceedings in respect of a contravention of the provisions of these Rules or of any order made thereunder alleged to have been committed by any person may be taken before the appropriate Court having jurisdiction in the place where that person is for the time being.

(3) Notwithstanding anything contained in Schedule II of the Code of Criminal Procedure. 1898 (5 of 1898), a contravention of any of the following rules, namely Rules 9, 36, 133B and 133J, shall be triable by a court of Session, a Presidency Magistrate or a Magistrate of the first class and a contravention of any order made under Rule 83, or under Sub-rule (2) of Rule 125 shall be triable by a Court of Session, Presidency Magistrate or a Magistrate of the first or second class,

(4) Any Magistrate or Bench of Magistrates empowered for the time being to try in a summary way the offences specified in Sub-section (1) of Section 260 of the Code of Criminal Procedure, 1898 (5 of 1898), may, if such Magistrate or Bench of Magistrates thinks fit, on application in this behalf being made by the prosecution, try a contravention of any such provisions of these Rules or orders made thereunder, as the Central Government may, by notified order specify in this behalf in accordance with the provisions contained in Sections 262 to 265 of the said Code,'

Mr. Desai relies on the provisions of Clause (1) of the said Rule and argues that under that Rule, it would have been possible for the Court to take cognizance of an offence on a report by a police officer who is a public servant. But that power is expressly excluded by Clause (5) of Rule 131B which says, 'notwithstanding the provision of Rule 154....' Mr. Desai, submitted that the offence under Rule 131B is an offence in respect of which the Court had no jurisdiction to take cognizance except upon a complaint being made by a Collector of Customs, Central Excise or Land Customs. The Court, could not, therefore, take cognizance of an offence on the basis of a police report. He argued that the police had no power to investigate an offence in respect of which they could not file a report or chargesheet on the basis of which the Court could take cognizance of an offence, Mr. Desai further contended that in view of this nature of the offence under Rule 131B, the prosecution could not rely on the fact that initially, the police were investigating into the present case in respect of an offence under Rule 131B. He has, therefore, submitted that the report which is made by the police to the Court in the present case is not under any section authorising the police to investigate either the offences under Rule 131B of the Defence of India Rules, 1962 or the offence under Section 135 of the Customs Act, and on the basis of such a report, the Court had no jurisdiction to proceed further in the matter.

8. There is no substance in these contentions urged by Mr. Desai, Firstly, it is now well settled in view of the decisions of the Supreme Court in : 1965CriLJ250 and Raghubans Dubey v. The State of Bihar, : 1967CriLJ1081 that while taking cognizance of an offence under Section 190 (1) (b) the Court is not bound by the contents of the report made by the Police. In Pravin Chandra Mody's case, : 1965CriLJ250 their Lordships have laid downs;

'Section 156 (2) provides that where a police officer enquires into an offence under Section 150 (1) his action cannot be called into question on the ground that he was not empowered to investigate the offence. The enquiry was an integrated one being based on the same set of facts. Even if the offence under the Essential Commodities Act may not be cognizable--though it is not alleged by the appellant that it is non-cognizable--the police officer would be competent to include it in the charge-sheet under Section 173 with respect to a cognizable offence. In Ram Krishna v. State, , Falshaw J. (as he then was) observed that the provisions of Section 155 (1), Criminal Procedure Code, must be regarded as applicable to those cases where the information given to the police is solely about a non-cognizable offence. Where the information discloses a cognizable as well as a non-cognizable offence the police officer is not debarred from investigating any non-cognizable offence which may arise out of the same facts. He can include that non-cognizable offence in the charge-sheet which he presents for a cognizable offence. We entirely agree. Both the offences if cognizable could be investigated together under Chapter XIV of the Code and also if one of them was a non-cognizable offence.'

The question in the first case was as to whether in a case where cognizance was taken by the Magistrate under Section 190 (1) (b) and the police report alleged that the accused had committed an offence under Section 420, which is a cognizable offence, and an offence under Section 7 of the Essential Commodities Act. 1955 for contravention of Clauses (4) and (5) of the Iron and Steel Control Order, which was contended to be a non-cognizable one, the procedure to be followed by the Magistrate was one under Section 251A or under Section 252 of the Criminal Procedure Code. Their Lordships held that the trial had to proceed under Section 251A as the report included both a cognizable and a non-cognizable offence, because the police were not prevented under the Code of Criminal Procedure from investigating a non-cognizable offence along with a cognizable offence when the two arose from the same facts.

9. In Raghubans Dubey's case. : 1967CriLJ1081 their Lordships held that the Court had jurisdiction to proceed against persons not mentioned as accused in the report because the court was taking cognizance of the offence. The question arose in that case as to whether the Court had power to issue process against persons not mentioned as accused in the report made by the police under Section 173. It was contended that if the Magistrate took cognizance of the offence against persons who are not mentioned as the accused in the report, there would be a separate complaint case and the accused against whom the Magistrate proceeded could not be tried along with the other accused mentioned by the police report and their Lordships stated that once cognizance is taken under Section 190 (1) (b) a proceeding was instituted within the meaning of Section 207-A and on the facts of the case, their Lordships held that the case did not fall within Section 190 (1) (a) or under Section 190 (1) (c) and stated as follows :

'The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in : 1965CriLJ250 , the term 'complaint' would include allegations made against persons unknown. If a Magistrate takes cognizance under Section 190 (1) (a) on the basis of a complaint of facts he would take cognizance and proceeding would be instituted even though persons who had committed the offence were not known at that time. The same position prevails, in our view, under Section 190 (1) (b)'.

Thus it appears that when a Magistrate takes cognizance of an offence under Section 190 (1) either on a complaint under Clause (a) or on a police report under Clause (b), it is for the Magistrate to consider against whom he should proceed and for what offences he should proceed to trial after considering the contents of the complaint or the report.

10. In the present case it is not challenged before me that the police officers of the C. B. I., E. O. W. had authority to investigate generally into the offence under the Customs Act or the D. I, Act. What is urged is that they had no power to investigate into the offence and report to the Magistrate under Section 173 in respect of the offence under Section 135 of the Customs Act as the said offence is non-cognizable and the offence under Rule 131B is also non-cognizable. However, irrespective of whether the offence investigated is cognizable or non-cognizable. I have to consider whether the Magistrate was right in taking cognizance of the offence in the present case.

11. A Full Bench of the Bombay High Court has taken the view in King Emperor v. Sada, (1902) ILR 26 Bom. 150, that although there was no Section in the Criminal Procedure Code which empowered a police officer of his own motion to make any report about a non-cognizable offence to the Magistrate, the information about such an offence, placed before the Court could be considered as a complaint. In the said case Chandavarkar, J. observed:

'It is true that the word 'report' is not defined in the Code of Criminal Procedure, but it appears to me that the Legislature has studiously attached to the expression 'Police report' a peculiar meaning throughout the Code wherever the expression occurs, and pointed out the occasions when and the purpose for which such reports should be made. Where a police report goes beyond these occasions and purposes it must fall within the definition of 'complaint' in Section 4, Clause (m) of the Code. The argument that the word 'report' occurs in sections outside Chapter XIV of the Code only strengthens this view, because the only sections outside that chapter where the expression 'Police report' occurs are Sections 62 and 114. As to Section 62, it provides that the Police are to report the cases of all persons arrested without warrant to the District Magistrate, or, if he so directs, to the sub-Divisional Magistrate. That means that where the police have by law the power to make an arrest without a warrant i.e., in cognizable cases, the police must report such arrest. So also Section 114 points in the same direction. It enables a police officer to report to a Magistrate when there is reason to fear the commission of a breach of the peace. That Section must be read with Chapter IV, which entails upon the public the duty of assisting Magistrates and Police Officers whenever a breach of the peace is apprehended. In no other section does the expression 'Police report' occur, and the fact that the word 'report' --not the expression 'Police report'--occurs in Section 438, Section 466, Section 472, Section 474 and Section 510, is beside the question, those are sections which deal with reports other than those of a police officer. It appears to me that the Code has carefully specified the purposes for which and the occasions when the police are empowered to make reports as to offences committed or threatened, and when they travel beyond them their reports cease to have the privilege conferred upon them by the Code and can only come within the definition of 'complaint', which is wide enough to include them.'

The question in that case arose in peculiar circumstances where a constable filed a complaint against the accused for committing nuisance on the public road under Section 61 of the Bombay District Police Act and when the accused was discharged, the Magistrate before whom the complaint was made ordered compensation to be paid under Section 250 of the Criminal Procedure Code on the ground that the complaint against the accused was vexatious. The District Magistrate made a reference to the High Court on the ground that Section 250 was inapplicable in the case as it was instituted upon a police report or upon information given by a police officer. The question before the Full Bench, therefore, was as to whether the complaint filed by the constable before the Magistrate was a complaint within the meaning of Section 250 of the Criminal Procedure Code. The Full Bench took the view that the argument that Section 250 was inapplicable because the complaint was a complaint by a police constable and. therefore, a report and not a complaint within the meaning of Section 250 was untenable.

12. The said Full Bench decision was considered by a Division Bench of this Court consisting of Patkar and Fawcett, JJ in Emperor v. Shivswami Guruswami, ILR 51 Bom 498 : AIR 1927 Bom 440. The accused in that case was charge-sheeted for offence under Sections 414, 385 and 204 of the Indian Penal Code and a charge was framed by the Sub-Divisional Magistrate under Section 161 with reference to the taking of a bribe in the course of an investigation and under Section 193 with reference to the tearing of certain documents. The Magistrate acquitted the accused on the ground that there was no case against the accused under Section 414 and that the offences under Sections, 385, 204, 161 (as the law then stood) and Section 193 were all non-cognizable offences and in so far as the Investigation was conducted without the order of the Magistrate under Section 155(2), the entire proceedings were ab initio void. In an appeal against that acquittal, the order was reversed and the Sub Divisional Magistrate was directed to continue his enquiry and to try the accused in accordance with law. In view of the decisions in Bhairab Chandra v. Emperor ILR 46 Cal. 807 : : AIR1919Cal433 and the Full Bench decision of the Madras High Court in Public Prosecutor v. Ratnavelu Chetty. ILR (1926) Mad, 525 : AIR 1926 Mad 865 and the decision of this Court in Emperor v. Abasbhai : AIR1926Bom195 Patkar, J. found:

'Speaking for myself, I am Inclined to take the view that a Magistrate can in a proper case treat a Police report of a non-cognizable offence as a complaint and take cognizance under Section 190 (1) Clause (a), of the Criminal Procedure Code. I have the less hesitation to take that view' in the present case where a charge-sheet was sent by Bando, the Sub-Inspector who was the official superior of the present accused, a Head constable, and who would, in the ordinary circumstances, be the person investigating an offence committed by his subordinate.....'

'On the whole, I think, under the circumstances of the present case, the Magistrate could have treated the report of the Police-officer as a complaint, when he as a matter of fact took cognizance of the case, examined the Sub-Inspector who was the official superior of the accused and who could properly complain of the accused's conduct in this case, and also frame a charge.'

Fawcett, J. while agreeing with the order summed up the law thus :

'If the view that has been adopted by the Calcutta and Madras High Courts were taken, there would be no necessity to consider whether the report -- the charge-sheet in this case--should or should not be treated as a complaint giving jurisdiction to the Magistrate under Clause (a) of Section 190 (1) for both those courts have in effect decided that the words 'a report in writing. made by any Police-Officer' in Clause (b) of Section 190 (1) cover any report made by a Police-Officer, whether of a cognizable or a non-cognizable offence. That is clearly laid down in ILR (1926) Mad. 525 AIR 1926 Mad. 865. It is also the view that commended itself to Mookerjee and Chatterjee JJ. in In re Nagendra Nath Chakravarti ILR 51 Cal, 402 : : AIR1924Cal476 . There it is observed that, under the amendment introduced by Section 45 of Act XVIII of 1923 in Clause (b) of Section 190 (1) the expression 'Police report', which had been interpreted in a technical sense, has been replaced by the non-technical expression 'report made by any police officer.' This conclusion, no doubt, has the merit of simplicity. But it seems to me that it is not open to us, in face of the Full Bench decision in ILR (1901) 26 Bom. 150, to adopt the same view. At any rate, I think that, until the whole question has been fully considered by a Full Bench, it would not be proper for us to make such a great departure from the construction that is put upon Clause (b) of Section 190 (1) by the Full Bench in Sada's case ILR (1901) 26 Bom. 150. He further said:

'... it would be disregarding the provisions of Sub-section (2) of Section 155 to say that the expression 'report made by any police-officer' in Section 190 (1) (b) covers a case where he is expressly prohibited from investigating and reporting. Therefore, until Sada's case ILR (1902) 26 Bom. 150, is overruled, I think it must be followed especially as the other view would nullify the ruling in Sada's case ILR(1902) 26 Bom 150 that Section 250 can apply to a police-officer, who makes a false and frivolous or vexatious complaint in the form of a report,' He concluded as follows:

'I agree with my learned brother that, if a Police-report under Section 190 (1) (b) is limited in this way the reference to a Police report in Clause (h) of Section 4 must similarly be limited; and, therefore, there is scope for a police-report being treated as a complaint in a proper case, as in fact has been held in Sada's case ILR (1902) 26 Bom 150. In Candri's case ILR (1924) 49 Bom 212 : AIR 1925 Bom 131 it was held that the report could not properly be treated as a complaint but Sada's case. ILR (1902) 26 Bom. 150 lays down that there may be cases where it can be so treated, for instance, where the Police-officer has himself seen the alleged offence committed, as mentioned by Candy J. in his judgment at page 156. I think it might also cover a case where an alleged non-cognizable offence is brought to the notice of a Police-Officer so soon after its commission, that there was a direct connection between the offence and the Police-officer's intervention in the matter, such as cases where he is called on to take action under Sub-section (1) of Section 57 of the Code.

In the present case, there is clearly good ground for treating the charge-sheet as a complaint'.

In view of these decisions of this Court, which are binding on me, it is possible to construe the charge-sheet filed in the present case as a complaint in respect of a non-cognizable offence. This complaint is filed with the necessary sanction under Section 137 of the Customs Act. Thus It is clear on the authorities that the investigation cannot be challenged as illegal merely because the police have reported about the non-cognizable offence under Section 135. In any event it is open to the Magistrate to take cognizance of the non-cognizable offence, in view of the sanction given by the Collector under Section 137, treating the charge-sheet it-self as a complaint.

13. Mr. Desai, however, contended that the police had no power to investigate even the offence under Rule 131B. The simple answer to this contention is to be found in the provisions of Sub-section (2) of Section 5 of the Criminal Procedure Code which lays down that all cognizable offences are to be investigated under the Criminal Procedure Code unless there is a contrary provision in some enactment. The only provision in the Defence of India Rules which relates to the investigation of an offence under said Rules is Rule 152. As Rule 152 does not refer to the offence under Section 131B, an offence under Rule 131B will have to be investigated in accordance with the Criminal Procedure Code. The offence under Rule 131B is clearly an offence for which the police may arrest without a warrant under schedule II to the Criminal Procedure Code. The fact that the police could not complain in respect of the offence under Rule 131B (1) in view of the provisions of Rule 131B (5) does not take away the powers of the police to investigate and then arrest and report about the arrest to the Magistrate under the Criminal Procedure Code. In these circumstances, therefore, the contention of Mr. Desai that initially the investigation made by the police was illegal has to be rejected.

14. Mr. Desai has also argued that the manner in which the police filed the report in the court is a fraud on Section 155 (2) and also on the provisions of Rule 131B (5) of the Defence of India Rules. Section 155 (2) prohibits the police from investigating an offence without the order of the Magistrate. Rule 131B (5) bars the jurisdiction of the Court from taking cognizance of the offence except on a complaint by the Collector of Customs, Central Excise or Land Customs. By committing a breach of both these mandatory provisions, the Police have sought to file a report about a non-cognizable offence under Section 135 of the Customs Act and hence Mr. Desai argues that the court was precluded from taking cognizance of the offence. It may be that the police have not reported under Rule 131B (5) because they themselves wanted to file a report before the Magistrate, with respect to the offence under Section 135 of the Customs Act. They have done so with the consent of the Collector of Central Excise. It may also be that they were unable to prove all the ingredients of the offence under Rule 131B and, therefore, they have filed the report only under Section 135 of the Customs Act The allegation of Mr. Desai that the police have committed a fraud on Rule 131B (5) is, therefore, unfounded. Similarly, the fact that they have reported with respect to an offence under Section 135, Customs Act, in the facts and circumstances of the case, cannot be considered as intended to evade Section 155 (2) of the Criminal Procedure Code. The police raided the premises of the petitioners and discovered facts which, according to them, constituted offences under Rule 131B (5) as well as under Section 135 of the Customs Act and if they have chosen to report the offence under Section 135 of the Customs Act, it cannot be said for this reason that they have tried to evade the provisions of Section 155(2).

15. In my judgment, therefore, the charge-sheet filed by the police in the present case can be construed as a complaint within the meaning of Section 190 (1) (a), and as it is to be construed as a complaint, the order of the learned Magistrate directing that the trial of the case should be in accordance with the provisions of Section 252 of the Criminal Procedure Code is right. Mr. Gumaste, the learned Government Pleader, has conceded before me that if the chargesheet has to be construed as a complaint, in view of the decisions in ILR (1901) 26 Bom 150 and ILR 51 Bom 498 : AIR 1927 Bom 440 the procedure under Section 251-A of the Criminal Procedure Code will not apply to the trial.

16. In the result, the order passed by the learned Presidency Magistrate is confirmed, although for slightly different reasons. Rule discharged. Stay vacated.

17. Rule discharged.


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