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State Vs. Munafkha Lukmankha Musalaman - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 433 of 1967
Judge
Reported inAIR1968Bom311; (1968)70BOMLR69; 1968CriLJ1054
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 173, 251-A and 252; ;Essential Commodities Act - Sections 7 (1), 10 and 11
AppellantState
RespondentMunafkha Lukmankha Musalaman
Appellant AdvocateS.R. Chitnis, Asst.Govt. Pleader
Respondent AdvocateV.P. Tipnis, Adv. for ;V.S. Kotwal, Advs.
Excerpt:
.....under essential commodities act whether investigation by police officer under chapter xiv of code--report submitted under chapter xiv whether report under section 173 of code--cognizance taken by magistrate upon such report and his following procedure under section 251a whether justified.;upon information supplied to the police, investigation was made and after it was over the police filed a report before the magistrate relating to an offence under inter alia section 7(1)(a)(ii) of the essential commodities act, 1955. the magistrate took cognizance of that report and having considered that it was under section 173 of the criminal procedure code, 1898, followed the procedure prescribed under section 251a of the code. on the question whether the magistrate should have followed the..........vitiated. the learned appellate judge took the view that this case not having been instituted on a police report the trial should have been under the procedure specified by section 252 of the criminal procedure code whereas the procedure that the magistrate followed was provided for under section 251a of the criminal procedure code. the learned appellate judge considered that since an erroneous procedure not provided for by law was followed in a criminal case, the entire trial was vitiated. he therefore set aside the order of conviction and directed a retrial. the state has filed this revision which was converted from an appeal which was first filed.(4) mr. chitnis for the state contended that the order passed by the appellate court was under a misapprehension of law and the order could.....
Judgment:

(1) The point that arises in this revision application is whether an order passed by an appellate Court setting aside the order of conviction of the trial Court and directing a retrial can be said to be the proper order.

(2) Accused No. 1 was the servant of accused No. 2 who was the owner of a shop. In that shop 20 bags of cement were found stocked when a search was taken by P. S. I. On 11-3-1965. The bags were seized and both the accused were charged for contravention of clause (9), (13) and (!4) of the Bombay Cement Control Order of 1959 punishable under section 24 of the Industries Development and Regulation Act, 1951 and also for the contravention of clause 3 of Cement Quality Control Order 1962, punishable under section 7(1)(a) (ii) read with section 10 of the Essential Commodities Act, 1955. The trial Court convicted accused No. 2 under section 24 of the Industries Development and Regulation Act as well as under section 7(1)(a)(ii) read with section 3 of the Essential Commodities Act, 1955. Accused No. 1 was acquitted. Against this order an appeal was filed by accused No. 2.

(3) A contention was considered by the learned appellate Judge that a wrong procedure having been followed, the entire proceedings were vitiated. The learned appellate Judge took the view that this case not having been instituted on a police report the trial should have been under the procedure specified by Section 252 of the Criminal Procedure Code whereas the procedure that the Magistrate followed was provided for under section 251A of the Criminal Procedure Code. The learned appellate Judge considered that since an erroneous procedure not provided for by law was followed in a criminal case, the entire trial was vitiated. He therefore set aside the order of conviction and directed a retrial. The State has filed this revision which was converted from an appeal which was first filed.

(4) Mr. Chitnis for the State contended that the order passed by the appellate Court was under a misapprehension of law and the order could not be supported. The facts of this case are that upon information supplied to the police officer in charge of the Police Station by a Sub-Inspector, investigation was made by P.S.I and a report was filed before the Magistrate after the investigation was over. The Magistrate took cognisance that the report was under Section 173 of the Criminal Procedure Code, the procedure provided for under Section 251A of the said Code was followed by the learned Magistrate. A charge was framed upon the documents the copies of which were supplied to the accused. No witnesses were examined before charge. After the framing of the charge evidence was recorded, and accused No. 2 was convicted.

(5) The difference between the two procedure lies in the initial stages of the trial. Under Section 251-A the Magistrate is entitled to frame the charge without examining any witnesses but upon consideration of the documents the copies of which are given to the accused. Since no witnesses are examined, who are to support the prosecution case is lost to the defence. The benefit of testing oral evidence, and urging that it is totally inadequate to support a charge even before it is framed is there by denied to the accused. There is no difference in the procedure after the framing of the charge. Inadequacy of the oral evidence can however be urged for not framing the charge, only under Section 252 of the Code. The trial Court proceeded on the basis that the procedure that was to be followed was provided for in Section 251-A whereas the appellate Court considered that procedure provided for under Section 252 as on a private complaint should have been followed by the trial Court. If in fact, instead of the procedure to be followed under Section 252 which applied to a particular case, procedure provided, for under S. 251-A was followed, then it has been held by this court that the trial would be vitiated. The entire argument therefore depends upon the question whether the procedure under Section 252 of the Criminal Procedure Code should have been followed by the learned Magistrate.

(6) The contention of Mr. Chitnis was that the trial Magistrate had rightly followed the procedure provided for under S. 251-A of the Criminal Procedure Code since cognizance was taken by the Magistrate on a police report under the provisions of S. 173 of the Code. The argument was this: There is no procedure provided for investigation of the offences for which provision for penalties is made under the Industries Development and Regulation Act, 1951, or under the Cement Control Order. All offences therefore, have to be investigated by the police officers in the ordinary way. This procedure for investigation is provided for only in Chapter XIV of the Criminal Procedure Code. If the offences with which we are concerned in this case are to be investigated under Chapter XIV of the Criminal Procedure Code, then obviously a report made by a police officer, although it might be in relation to a penalty provided for in the Essential Commodities Act or the Industries Development and Regulation Act, 1951, would be a report made under Section 173 of the Criminal Procedure Code. If therefore the report could only be made by the police officer under Section 173 of the Criminal Procedure Code, then this case would be within the cognizance of the Magistrate as it would be a case instituted on police report wherein the investigation is made under Chapter XIV of the Criminal Procedure Code.

(7) The appellate Court proceeded on the basis that the report made in this case could not be considered a police report in view of the fact that the report related to an offence provided for in the Essential Commodities Act and the Industries Development and Regulation Act. Reliance was placed by the learned appellate Judge upon a case decided by the Madhya Pradesh High Court Sardar Khan v. State, : AIR1963MP337 . It was held in this case that a report made by an excise officer to a magistrate, stating facts constituting an offence under the Opium Act was not a police report although the excise officer was to be considered as a police officer by Section 20-G of the Opium Act. It was also held that procedure Specified in Section 252 of the Code applied to such a case.

(8) The facts of this case, however, are materially different from the facts of the instant case. In the Madhya Pradesh case the learned Judges were concerned with an investigation made by an Excise Officer and a report submitted by him regarding an offence under the Opium Act, 1878. Section 20-G of the Opium Act provides that the Excise officer would be considered as a being taken by the Magistrate under S. 190 (1) (b) of the Criminal Procedure Code. In order to make provision for a report of an Excise Officer to be considered as a report provided for in Section 190 (1) (b), Section 20-G of the Opium Act as applied to Madhya Pradesh provided that an Excise Officer would be considered as a police officer. On these special facts it was held that a report made under the Opium Act by an Excise Officer who by fiction of law became a police officer would not be a repost provided for under Section 173 of the Criminal Procedure Code and therefore the procedure specified in Section 251-A could not apply to it. The learned Judges were concerned with an offence under the Opium Act.

(9) The learned Judge relied upon the decision of the Calcutta High Court to which a reference was made in Paragraph 6 as follows:

'We do not see any good reason to differ from the aforesaid view of the Calcutta High Court'.

The reference made was to Premchand Khetry v. The State, : AIR1958Cal213 . The learned Judges of the Calcutta High Court were also dealing with a case under the Opium Act and the provisions of Ss. 20 and 20-G of the said Act. The learned Judges observed at p. 218 as follows:

' It follows that although S. 20-G of the Opium Act makes an Excise Officer's report of an opium offence a report made by a Police Officer, it does not make it a 'police report' in the special and restricted sense of that term'.

The learned Judges held that a special procedure for investigation having been provided for in the Opium Act, whether the investigation was made by an excise officer or by any police officer, the report made by him to the Magistrate for taking cognizance under Section 190 (1) (b) would not be a police report as provided for in Section 173 of the Criminal Procedure Code. The two investigation were considered as entirely different: (1) under the Opium Act and (2) which could only be made under Chap. XIV of the Criminal Procedure Code. The provision for the procedure in Section 251-A was only made for a case instituted upon a police report which was the result of an investigation made by the police under Chapter XIV of the Criminal Procedure Code. This decision, therefore, of the Calcutta High Court on which reliance was placed by the Madhya Pradesh High Court makes it abundantly clear that the provision for investigation would determine whether a case should proceed under the procedure specified under Section 251-A or under Section 252 in respect of offences which are not provided for in the Penal Code.

(10) Section 7(1)(a)(ii) of the Essential Commodities Act provides for a penalty of imprisonment for a term which may extend to three years. This penalty considered along with Schedule II of the Criminal Procedure Code in relation to offences against other laws, shows that the offence with which accused No. 2 was charged under S. 7(1)(a)(ii) was a cognizance as it punishable with imprisonment for three years. In the instant case, therefore, the offence being cognizance an investigation could be made by a police officer after arresting the accused without having specific order from the Magistrate to that effect. Since no provision for investigation of this offence is made in the Essential Commodities Act or under the Rules made thereunder this investigation in regard to the offence under S. 7(1)(a)(ii) must be considered to be an investigation made by a police officer under powers under Chapter XIV of the Criminal Procedure Code. Even if, therefore, the ratio of the Calcutta Case is taken into consideration, the difference in facts would establish that the ratio would not apply to the instant Case. An investigation made by a police officer under Chapter XIV and a report submitted thereunder must be considered as a report under Section 173 of the Code as a police report upon which cognizance is taken by a Magistrate. The conditions, therefore, for the application of Section 251A of the Criminal P. C. are fully established by the prosecution and the learned appellate Judge was in error in holding that the procedure that was applied viz. that provided for under Section 251A was erroneous.

(11) The fact that Section 11 of the Essential Commodities Act enables cognizance being taken by the Magistrate upon a report made by a public servant does not take the report made by the police officer outside the purview of Section 173 of the Criminal Procedure Code. It has been held that the Supreme Court in Bhagwati Saran v. State of U.P., : [1961]3SCR563 that a charge-sheet submitted by a police officer would satisfy the requirements of Section 11, as it would be a report made by a public servant as provided for in Section 11. The fact therefore that an essential condition for cognizance to be taken for the offences under the Essential Commodities Act requires the satisfaction of the provisions of Section 11 does not take the investigation out of the provisions of Chapter XIV of the Criminal Procedure Code.

(12) The appellate Court had also relied upon State of M. P. v. Baital Nahar Singh, : AIR1966MP5 which was a case under Section 11 of the Essential Commodities Act. The learned Judges followed the earlier decision of their own High Court and held that the charge-sheet in that case could not be deemed to be a police report for the purposes of Section 251A of the Criminal Procedure Code. They therefore held that such a case would have to be tried under the provisions laid down under Section 252 onwards. With respect to the learned Judges, I am unable to agree with their application of the principle enunciated by the Madhya Pradesh High Court in the earlier decision to the facts of the case before them. I have dealt in detail with the decision of the Madhya Pradesh High Court in : AIR1963MP337 and also the Calcutta case in : AIR1958Cal213 , to point out that the special facts of the two cases led to a decision that the investigation made in respect of an offence under the Opium Act was not made under Chapter XIV of the Criminal Procedure Code. The learned Judges of the Madhya Pradesh High Court while deciding : AIR1966MP5 did not consider this particular point that the investigation of an offence under the Essential Commodities Act could only be made under Chapter XIV of the Criminal Procedure Code. The learned Judges assumed, it appears from the judgment, that the ratio in relation to a report under the Opium Act would apply to a report of an offence under the Essential Commodities Act. It was probably not brought to the notice of the learned Judges that separate provision for investigation was made in the Opium Act while no such provision was made in the Essential Commodities Act. The absence of any provision for investigation resulted in every investigation of an offence under the Essential Commodities Act being made under Chapter XIV of the Code.

(13) I, therefore, hold that the learned Magistrate was justified in following the procedure provided for in Section 251A of the Criminal Procedure Code and the learned appellate Judge was in error in holding the trial was vitiated. The order passing by the appellate Court must therefore be set aside and the order passed by the learned Magistrate be restored. The appeal has not been heard on merits by the appellate Court. The appellate Court will therefore have to hear this appeal on merits and then pass order according to law.

ORDER

(14) Rule absolute. The order passed by the appellate Court is set aside and appeal No. 130 of 1966 on the file of the Sessions Court, Dhulla, is restored for disposal on merits according to law.

(15) Order accordingly.


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