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The Public Prosecutor, High Court Vs. M. Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1978CriLJ63
AppellantThe Public Prosecutor, High Court
RespondentM. Prasad and anr.
Excerpt:
.....is express mention of certain things, then anything not mentioned is excluded. - lj 1341 (cal) (sb). 4. before i refer to these two decisions, i would like to test through the statutory provisions the contention of the learned public prosecutor that the laying of the charge sheet also is part of the investigation, so that in this case it could be stated that the investigation continued right up to 31-12-1974 when the charge sheet was laid. it was clearly held in that case that the final step in the investigation......rice and sugar etc. he seized the stocks and handed them over to the appropriate authorities. the charge sheet was laid on 31-12-1974.2. the defence was that these charges were not proved end that in any case the prosecution was barred by limitation as per the provisions of section 468(2)(b) cr.pc the contention in regard to limitation is that the new code of criminal procedure applies because the charge sheet was filed on 31-12-1974 and since it was laid more than one year after 4-u-1973 and as the inspection and seizure were made contrary to section 468(2)(b) the prosecution was barred by time. the prosecution endeavoured to get over this difficulty by relying on section 484 cr.pc which by repealing the code of 1898 provides in clause (a) of sub-section (2) that if, immediately before.....
Judgment:

Sambasiva Rao, J.

1. This is an appeal by the State against the two respondents who are father and son. The 1st respondent was charged under Clause 3 (1) of the Foodgrains Dealers' Licensing Order read with Section 7 of the Essential Commodities Act. The 2nd respondent was charged with the offence under CL 8 (2) of the Sugar Dealers' Licensing Order. The former was a Foodgrains Dealers' Licensee and the latter was a Sugar Dealers' Licensee. They were however doing combined business. On 4-11-1973, P. W. 3 the Inspector inspected the shop and found discrepancies between the actual stocks lying in the shop and the stocks as entered in the stocks register for wheat, rice and sugar etc. He seized the stocks and handed them over to the appropriate authorities. The charge sheet was laid on 31-12-1974.

2. The defence was that these charges were not proved end that in any case the prosecution was barred by limitation as per the provisions of Section 468(2)(b) Cr.PC The contention in regard to limitation is that the new Code of Criminal Procedure applies because the charge sheet was filed on 31-12-1974 and since it was laid more than one year after 4-U-1973 and as the inspection and seizure were made contrary to Section 468(2)(b) the prosecution was barred by time. The prosecution endeavoured to get over this difficulty by relying on Section 484 Cr.PC which by repealing the Code of 1898 provides in Clause (a) of Sub-section (2) that if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending then, such appeal, application, trial, inquiry, investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Cr.PC 1898, as in force immediately before such commencement (the old Code), as if this Code had not come into force. The lower Court however acquitted the accused on the ground that the prosecution was barred by limitation though it recorded a finding that the accused had violated the provisions of the Foodgrains Dealers' Licensing Order and the Sugar Dealers Licensing Order for not showing the stocks correctly in the stock registers.

3. The learned Public Prosecutor relied on Section 468(2)(a) and contended that since the investigation started on 4-11-1973 and continued till 31-12-1974 when the charge sheet was filed which act would come within the scope of investigation, the Code of 1898 would apply. If that applied, there was no bar of limitation at all as is now provided in Section 468 of the present Code. Reliance in this behalf was placed on H, N. Rishbud v. State of Delhi AIR 1955 SC 196: (1955 Cri LJ 526) and State v. Haridas Mundra 1974 Cri. LJ 1341 (Cal) (SB).

4. Before I refer to these two decisions, I would like to test through the Statutory provisions the contention of the learned Public Prosecutor that the laying of the charge sheet also is part of the investigation, so that in this case it could be stated that the investigation continued right up to 31-12-1974 when the charge sheet was laid. Section 173 Cr.PC requires that every investigation shall be completed without unnecessary delay. This is Sub-section (1). In Sub-section (2) it is stated that as soon as it (obviously meaning investigation) is completed the officer-in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government giving certain particulars as mentioned in Sub-section (2). Therefore the very section contemplates the filing of the charge sheet only on the completion of the investigation. It is stated in so many words in Sub-section (2). Therefore it cannot be said that filing of charge sheet is part of investigation,

5. In this case there is no evidence that the investigation continued right up to the filing of the charge sheet. On the other hand from the record we see that the accused claimed the seized property before the District Revenue Officer and he, by his decision dated 28-1-1974 held that they should be handed, over to the accused. This order of the District Revenue Officer is Ex. D-4. Thus Ex. D-4 shows two things-Firstly that the matter had been decided by the District Revenue Officer before this charge-sheet has been laid, and secondly, that investigation had been completed before the District Revenue Officer rendered1 his decision, Therefore, it cannot be said that the investigation was continued, of that the prosecution would take advantage of Clause (a) of Section 484(2) of Cr.PC

6. I do not think that the Supreme Court decision in H. N. Rjshbud v. State of Delhi (1955 Cri LJ .526) (SC) (supra). helps the prosecution in this regard. It was clearly held in that case that the final step in the investigation. was, as to whether or not there Was a case to place the accused on trial, the formation of the opinion, when the investigation coined to an end. The formation of the opinion should have been made even before the charge sheet was filed. The Special Bench in State v. Haridas Mundhra (1974) Cri LJ 1341 (Cal) (SB) (supra) tries to define the scope of the words 'trial pending' in Section 468(2)(a). That offers ho assistance to the1 learned Public Prosecutor because no trial Was pending in this case when the charge sheet was filed. In feet the case would start only with the filing of the charge sheet. Therefore these decisions do riot help the prosecution.

7. On the other hand I may take note of two decisions, one which is .that of the Full Bench of Gujarat High Court in H. N. Bhavsar v. State of Gujarat, 1976 Cri LJ 84 (Guj). The Full Bench held (at p. 89):

It must be noticed that what are saved under Sub-section (2) (a) (Section 484) are only the pending proceedings. If a proceeding is instituted subsequent to the commencement of the Code in respect of the act or omission committed prior to the coming into force of the new Code, it would only be governed by the provisions of the new Code.

The learned single Judge of the Patna High Court held in Vasudeo Agrawal v. State of Bihar, 1977 Cri LJ 26 (SN) 55. 'Thus a Police investigation initiated under the old Code has to be completed in accordance with the old Code but, on completion thereof, any further step in the prosecution has to be taken accord-Ing to the provisions of the new Code.' While coming to that conclusion, the Full Bench decision of the Gujarat High Court has been relied on by the learned single Judge. These decisions support the view I have taken.

8. What are saved Under Section 468(2)(a) are only pending appeals, applications, trials, inquiries or investigations. The investigation in this particular case was completed. Even if it was pending, only that will have to be continued in accordance with the old Code. But the charge-sheet and the conduct of the trial will have to be in accordance with the new Code, Now that it is common ground that charge-sheet was laid on 31-12-1974 more than one year after the inspection and seizure on 4-11-1973, the prosecution is barred by the provisions of Section 468(2)(a) of the Code of Criminal Procedure. Therefore, I uphold the view taken by the lower Court with regard to limitation. The consequence is that the lower Court has rightly acquitted the accused. The appeal by the State is therefore dismissed.


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