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The State Vs. Raghunath Sahu - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 18 of 1964
Judge
Reported inAIR1965Ori124; 1965CriLJ57
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 439 and 495(4); Bihar and Orissa Excise Act, 1915
AppellantThe State
RespondentRaghunath Sahu
Appellant AdvocateStanding Counsel
Respondent AdvocateY.S.N. Murty, Adv.
DispositionRevision dismissed
Cases ReferredWillie (William) Slaney v. State of Madhya Pradesh
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........the bihar and orissa excise act, on the sole ground that the prosecution was conducted by the very excise officer who had investigated the case. the learned sessions judge observed that section 495(4), crl. p. c. was directly contravened and that consequently the entire trial was vitiated. he, therefore, directed a retrial and observed that the prosecution should be conducted by any other officer, i.e., other than the excise officer who investigated the case.2. in view of the recent judgment of the supreme court in raja ram v. state of bihar, air 1964 sc 828 holding that an excise officer functioning under the bihar and orissa excise act of 1915 is a police officer for the purpose of section 25 of the evidence act, it may he reasonable to hold that he is also a police officer for the.....
Judgment:
ORDER

R.L. Narasimham, C.J.

1. This is a revision by the State of Orissa against the appellate judgment of the Sessions Judge of Berhampur, setting aside the conviction and sentence passed on the respondent by a First Class Magistrate of Digapahandi for an offence under Sections 47(a) and 47(1) of the Bihar and Orissa Excise Act, on the sole ground that the prosecution was conducted by the very Excise Officer who had investigated the case. The learned Sessions Judge observed that Section 495(4), Crl. P. C. was directly contravened and that consequently the entire trial was vitiated. He, therefore, directed a retrial and observed that the prosecution should be conducted by any other officer, i.e., other than the Excise Officer who investigated the case.

2. In view of the recent judgment of the Supreme Court in Raja Ram v. State of Bihar, AIR 1964 SC 828 holding that an Excise Officer functioning under the Bihar and Orissa Excise Act of 1915 is a police officer for the purpose of Section 25 of the Evidence Act, it may he reasonable to hold that he is also a police officer for the purpose of Section 495(4), Cr. P. C. Hence the Excise Officer who investigated the Excise offence should not be permitted to conduct the prosecution in Court. There is thus no doubt that the provisions of Section 495 (4), Cr. P. C. have been contravened.

3. But the question as to whether such contravention is an illegality or a mere irregularity is not free from doubt. The leading decision in favour of the view that such a trial is illegal is that of the Madras High Court, reported in In re Sellamuthu Padayachi, AIR 1954 Mad 313 which has been followed by the Andhra High Court in In re Dusari Veerraju, AIR 1959 Andh 29 and in some other decisions. Learned Standing Counsel, on behalf of the State, referred to a Kerala decision reported in Joseph v. State of Kerala, AIR 1961 Ker 28 where it was held that the provisions of Sub-section (4) of Section 495, Cr. P. C. were only directory and not mandatory. The learned Judges referred to the observations of their Lordships of the Supreme Court in Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116 and held that the Madras view was not correct.

4. In view of this conflict of judicial opinion, the question for consideration is whether the order of the Sessions judge should be interfered with or not. The very Investigating Excise Officer has figured as P. W. 1. I do not know how he examined himself in chief. Subsequently he appeared as an officer on behalf of the Government to conduct the prosecution when the other witnesses were examined and discharged. Prejudice appears to be implicit in the way in which prosecution was conducted in this case. Hence, I do not think this is a fit ease for me to interfere with the order of the Sessions Judge directing retrial.

5. For these reasons without expressing my definite opinion as to whether the Madras view or the Kerala view mentioned above should be followed I would hold that this is not a fit case for interfering with the order of the learned Sessions Judge in the circumstances of this case. The revision petition is therefore dismissed.


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