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Parre Prasad Rao Vs. State of A.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1985CriLJ1930
AppellantParre Prasad Rao
RespondentState of A.P.
Excerpt:
.....& p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - clearly leads to the irresistible conclusion that the offence under section 5 of the act is a cognizable offence and the police report cannot be considered as a complaint and the initiation of prosecution proceedings by the officer other than the authoirty or officer specified in section 7 of the act is vitiated......code, that some person, whether known or unknown, has committed an offence, but does not include a police report.explanation : - a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.the main part of the definition pertains to the allegations made orally or in writing to a magistrate by a person and it specifically excludes a police report. the explanation appended to the definition makes the position amply clear by stating that the report by a police officer after investigation is considered as a complaint in non-cognizable offences by a deeming provision. in view of the legal position that the.....
Judgment:
ORDER

Rama Rao, J.

1. The Petitioner accused is convicted under Section 5 of the Telegraph Wires (Unlawful Possession) Act, 1950 and sentenced to suffer R.I. for two years and on appeal confirmed by the Sessions Court.

2. The Station House Officer, Ongole Taluk Police Station, filed a charge sheet against the accused stating that, on 24-4-1981, 27-3-1981 and 12-5-1981 there were thefts of conductor cable wire used for telephone lines near Maddiralapadu village and that P.Ws. 1 and 2 gave complaints about the said thefts. The complaints were registered and investigation was taken up. On investigation and verification the accused was found in the possession of telephone wires and such wire is not available in the local market. Thereupon the accused was chargesheeted for the offence under Section 5 of the Telegraph Wires (Unlawful Possession) Act, (hereinafter referred to as 'the Act'). On the basis of the evidence adduced by the prosecution, the learned Magistrate arrived at the finding that the accused was in unlawful possession of the wire, that such wire belongs to the Telephone Department and as such the accused is guilty of unlawful possession of telegraphic wire. As against the conviction and sentence by the learned Magistrate, an appeal was preferred and the learned Sessions Judge confirmed the conviction and sentence.

3. The learned Counsel for the petitioner contends that the conviction and sentence pursuant to the charge-sheet filed by the Station House Officer, Ongole Taluk Police Station, is devoid of jurisdiction and the proceedings under the Act are vitiated in the absence of any complaint contemplated under Section 7 of the Act.

4. Section 5 of the Act is as follows:

5. Penalty for unlawful possession of telegraph wires:

Whoever is found or is proved to have been in possession of any quantity of telegraph wires shall unless he proves that the telegraph wires came into his possession lawfully, be punishable,-

(a) for the first offence, with imprisonment for a term which may extend to five years, or with fine or with both;

(b) for the second or a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees:

Provided that where a person has made a declaration under Section 3 in relation to any quantity of telegraph wires, the burden of proving in respect of the quantity so declared that it came into his possession lawfully, shall not be on such person.

Section 7 of the Act is as follows:

7. Cognizance of offences : - (1) No Court shall take cognizance of any offence punishable under this Act, save on complaint made by or under the authority of the Central Government or by an officer specially empowered in this behalf by that Government.

(2) No court inferior to that of a presidency Magistrate or a Magistrate of the First Class shall try any offence punishable under this Act.

Section 5 of the Act provides that a person who is proved to have been in possession of any quantity of telegraph wires shall be punishable with the varying sentences contemplated under Clauses (a) and (b) unless he proves that he came into possession of such wire lawfully. Therefore, whenever it is found that a person is in possession of telegraph wires the burden of proof is on such person to prove that the possession is lawful. Section 7 provides for the initiation of proceedings for prosecution by a complaint made by or under the authority of the Central Government or by an Officer specially empowered in this behalf by the Central Government. This provision unequivocally excludes the filing of the complaint by any authority except the authoirty or person specified in the provision. Admittedly the authority specified in Sub-section (1) of Section 7 did not initiate the complaint and the station house officer, Ongole taluk police station, who filed the complaint is not competent to file the complaint. Sections 4 and 5 Cr. P.C. enable the formulation of a special procedure by special enactments and they are as follows:

4.(1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigation, inquiring into, trying or otherwise dealing with such offences.

Section 5 Cr. P.C. is as follows:

5. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

Section 4 Cr. P.C. envisages that all offences under the I.P.C. shall be investigated and tried in consonance with the procedure formulated under Cr. P.C. and all offences under other laws also shall be investigated in a similar fashion subject to any deviation or special procedure envisioned by the special enactment. Section 5 Cr. P.C. apparently supplementing Section 4, provides that the special jurisdiction or procedure visualised under any special or local enactment shall have full sway unless there is any specific provision in Criminal P.C. totally at variance or wholly inconsistent with the said provision. In a situation where a special enactment dealing with offences provides a special procedure different from or inconsistent with the procedure, contained in Criminal P.C. the procedure prevails over the general procedure under the Cr. P.C. The lee way given by both Sections 4 and 5 of the Cr. P.C. is that a special enactment specifying any offences with regard to the contravention or infraction of its provisions, can also regualte the trial of such offences by specifying a separate or a special procedure which may not be inconsistent with any specific provision in Cr. P.C. to that effect. Section 2(d) Cr. P.C. defines 'complaint' as under:

2(d) 'complaint' means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation : - A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.

The main part of the definition pertains to the allegations made orally or in writing to a Magistrate by a person and it specifically excludes a police report. The explanation appended to the definition makes the position amply clear by stating that the report by a police officer after investigation is considered as a complaint in non-cognizable offences by a deeming provision. In view of the legal position that the main part of the definition forbids the consideration of police report as complaint, the deeming provision is necessitated by an explanation to treat the police report as complaint in non-cognizable offence. Apart from the main definition, the explanation also affords a sufficient clue that the police report is alien to complaint. Under the classification of offence in the II Schedule to the Cr. P.C. it is provided that an offence punishable with imprisonment for 3 years and upwards but not more than 7 years, is a cognizable offence and it is triable by a Magistrate of First Class. Therefore, Sections 5 and 7 of the Act in conjunction with the provisions of Cr. P.C. clearly leads to the irresistible conclusion that the offence under Section 5 of the Act is a cognizable offence and the police report cannot be considered as a complaint and the initiation of prosecution proceedings by the officer other than the authoirty or officer specified in Section 7 of the Act is vitiated.

5. The learned Public Prosecutor, however, contends that the .complaint contemplated under Section 7 of the Act does not preclude the police from taking cognizance under Sections 154 and 156 Cr. P.C. and filing a charge sheet and as such the proceedings initiated at the instance of the Station House officer are valid. Section 154 Cr. P.C. is concerned with giving information regarding the commission of a cognizable offence and the procedure regarding the same. Section 156 Cr. P.C. pertains to the powers of an officer in charge of a police station regarding the investigation of a cognizable case. Section 190 Cr. P.C. is concerned with the powers of the Magistrate in taking cognizance of an offence upon receiving a complaint, or a police report of such facts, or upon receipt of information from any person other than a police officer. Sections 154, 156 and 190 Cr. P.C. are in the realm of the procedure with regard to investigation, submission of a police report and taking cognizance of the offence by the Magistrate. Section 7 of the Act provides that a complaint can be given only by the authority of the Central Government, or an officer specially empowered by the Central Government in order to clothe the Magistrate with the power to take cognizance of an offence under the Act. In Jarnail Singh v. State AIR 1971 Punj 181 : 1971 Cri LJ 781 the Punjab &. Haryana High Court while considering whether an F.I.R. constitutes a complaint in accordance with Section 7(3) of the East Punjab Essential Services (Maintenance) Act, held that the F.I.R. cannot be treated as a complaint in writing to the Court and further that mere lodging of F.I.R. does not constitute a complaint. In Sheo Pratap Singh v. Emperor AIR 1930 All 820 : 1931-32 Cri LJ 306 the difference between 'complaint' and 'information' is highlighted. It is held:

The essential difference between a complaint and information is that a Magistrate acts on a complaint because the complainant has asked him to act, but a Magistrate acts on information on his own initiative. In the case of a complaint the Magistrate is asked to prosecute the person named as accused and he has then to decide whether he will accede to the request or not. If he does not, then he must record his reasons under Section 202(1), and may either make an enquiry himself or direct an inquiry or investigation or dismiss the complaint under Section 203 after recording his reasons. But in the ease of receiving information the Magistrate is not asked by any one to issue process and if he does not choose to act on the information, he need not record any reason or pass any order. In the case of information there is no complainant to examine on oath. On a complaint the complainant is first examined on oath unless it has been made by a public servant acting in the discharge of his official duty.

Therefore, in the absence of any complaint by the authorities enumerated in Section 7 of the Act, the proceedings pursuant to any other information or otherwise are illegal. In the instant case, the Magistrate proceeded on the basis of the police report. The police report cannot be equated to a complaint and the Station House Officer, Ongole Taluk police station is not the competent authority to lodge the complaint under Section 7 of the Act. Therefore, the complaint is without any sanction of law. Hence the conviction and sentence is set aside. Criminal revision case allowed.


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