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State of Haryana Vs. Rugha - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Appeal No. 417 of 1966
Judge
Reported inAIR1970P& H502; 1970CriLJ1565
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 155(2), 190(1) and 537; Essential Commodities Act, 1955 - Sections 11
AppellantState of Haryana
RespondentRugha
Appellant Advocate D.S. Tewatia, Adv. for Adv. General
Respondent Advocate Ram Rang, Adv.
DispositionAppeal allowed
Cases ReferredMunnalal v. State of Uttar Pradesh
Excerpt:
.....we are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby. the argument that a report of this type must be based on an investigation legally held in order to enable the magistrate concerned to take cognizance of the offence complained of therein is not deducible from what the section itself says in so many words and must be held to have been negatived by the following observations of their lordships of the supreme court which are part of those cited above but which may be re-produced with advantage: the offence was committed as far back as the year 1965 since when the..........v. asha nand kurmi, 1962 (1) cri lj 623 (all).another contention raised before, the learned trial magistrate was that the report, contemplated by section 11 of the act which reads:'no court shall take cognizance of any offence punishable under this act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in section 21 of the indian penal code (xlv of 1860)'was a report made by a public servant having authority of law to make it, that sub-inspector mohan singh (p. w. 1) was not such an officer in view of the fact that his report in each case was based on an investigation of a non-cognizable offence without the order of a magistrate passed under section 155(2) of the code of criminal procedure and that, therefore,.....
Judgment:

1. By this judgment we shall dispose of four appeals, namely, Criminal Appeals Nos. 417, 418, 419 and 421 of 1966, instituted by the State against Rugha, Gaphur, Indraj and Jumma respectively, all these persons being residents of village Jitpura situated in Rajas-than, challenging a similar number of Judgments passed by Shri K.C. Gupta, Chief Judicial Magistrate, Hissar, on the 27th of December, 1965, acquitting each of the respondents of an offence under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as to the Act) read with the Punjab Gram (Regulation of Distribution) Order, 1964. We are taking them up together as they not only arise from a single occurrence but also involve identical evidence and questions of law.

2. The prosecution case may be stated thus. On the 10th of August, 1965, Assistant Sub-Inspector Jagdish Lal (P.W. 4) was heading a police party consisting of himself, Mani Ram (P.W. 3), two other non-officials named Ganpat and Baldeva, and a constable. The party arrived at a pond known as Johri Nilgiri situated on the Punjab-Rajasthan border at about midnight and held a nakabandi there. At about 5.00 A.M. (on the 11th August, 1955) the four respondents were seen coming from the side of village Basra, each holding a camel, on their way to Rajasthan. The police found the camels loaded with bags of gram, the quantity of the commodity being as follows in each case:

Rugha = 4 1/2 maunds

Gaphur = 5 maunds,

Indraj = 5 maunds,

Jumma = 5 maunds,

All the camels along with the grams were secured by the Assistant Sub-Inspector who also arrested the four respondents as none of them had any permit for the export of grams from Punjab to Rajasthan.

After the investigation had been completed, four reports in writing of the facts above-mentioned were made to the learned Chief Judicial Magistrate by Mohar Singh, Sub-Inspector of Police, Police Station Sadar, Hissar (P.W. 1).

3. The case of each of the respondents was that at the relevant time he was taking the grams in question on his camel for Bikhu Khan, as Imam of the mosque at Balsmand situated in Punjab (D.W. 3) who had hired the respondent for this purpose.

Three witnesses were produced in defence by each of the respondents. Barket, a resident of village Gorchhi, stated as D.W. 1 that the grams in question had been donated by himself and his co-villagers for the Balsmand mosque to Bikhu Khan (D.W. 3) who had arranged for their transport to Balsmand through the respondents who were intercepted by the police. Munshi (D.W. 2) made a similar deposition and claimed that he was one of the persons who gave grams as donation for the mosque. The testimony of Bikhu Khan (D.W.3) also supported the version given by the respondents. All these witnesses, however, admitted that the Rajasthan border does not fall on the way from village Gorchhi to village Balsmand, the two of which lie at a distance of 4 kos from each other.

4. The only reason given by the learned Chief Judicial Magistrate for rejecting as untrustworthy the testimony of Mani Ram (P.W. 3) and Assistant Sub-Inspector Jagdish Lal (P.W. 4), both of whom fully supported the prosecution in each case, was that the former could not give the order in which the four camels were travelling and had also denied that he was a registered bad character, a fact admitted by the Assistant Sub-Inspector. Besides, he accepted the testimony of the witnesses for the defence at its face value. Consequently, he found that the prosecution had failed to prove its case against the respondents. He further accepted a contention raised on behalf of the respondents that no Court could take cognizance of the offence in question for the reason that it was a non-cognizable offence which could not be but had been investigated by the police without the permission of a competent Magistrate. In this connection reliance was placed by him on Lal Chand v. State, (1964) 66 Pun LR 68, and Om Parkash v. State, 66 Pun LR 580 -- (AIR 1964 Punj 407) in preference to State of Uttar Pradesh v. Asha Nand Kurmi, 1962 (1) Cri LJ 623 (All).

Another contention raised before, the learned trial Magistrate was that the report, contemplated by Section 11 of the Act which reads:

'No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in Section 21 of the Indian Penal Code (XLV of 1860)'

was a report made by a public servant having authority of law to make it, that Sub-Inspector Mohan Singh (P. W. 1) was not such an officer in view of the fact that his report in each case was based on an investigation of a non-cognizable offence without the order of a Magistrate passed under Section 155(2) of the Code of Criminal Procedure and that, therefore, cognizance of the cases against the respondents was barred under Section 11 of the Act. This contention also found favour with the learned trial Magistrate In view of 1964-66 Pun LR 68 (supra) and 66 Pun LR 580 = (AIR 1964 Punj 407) (supra) although it was negatived in 1962 (1) Cri LJ 623 (All) (supra).

It was in these premises that the respondents were acquitted.

5. It was contended before us on behalf of the State that the decision of the trial Court in each case was erroneous not only on facts but also on the points of law canvassed before it. After hearing arguments on behalf of both sides at length, we are of the opinion that the contention must prevail.

6. It is admitted on all hands that each of the respondents was arrested while carrying the aforesaid quantity of grams on his camel. The only question, therefore, which requires determination is whether he was caught in the act of exporting the commodity to Rajasthan. In this connection, the place of his arrest becomes all-important. If that place is Johri Nilgiri, which is admittedly situated at the Punjab-Rajasthan border and which does not fall on the way from Gorchhi to Balsmand, the prosecution case must be taken to have been established. That he was arrested at that place, is testified to both by the Assistant Sub-Inspector and Mani Ram (P. W. 3) and this testimony stands altogether uncontradicted. It is noteworthy that the precise place where the respondent in each case claims to have been arrested was not so much as put to any of the prosecution witnesses in the form of a suggestion. All that was said in this behalf was that he was arrested 'in between villages Balsmand arid Serara'. This means that the evidence points to only one place of arrest and that is Johri Nilgiri. In this view of the matter we have every reason to accept the word of the Assistant Sub-Inspector and Mani Ram (P. W. 3) on the point and hold that the respondents were arrested as stated by the prosecution and if that be so, the case against them must be taken to be proved to the hilt. The finding of the learned Magistrate to the contrary in each case is set aside.

7. We now come to the law points involved in these cases. It has to be borne in mind that the Act was amended in 1964 when Section 12-A was added to it. That section gave the Central Government power to issue notifications directing offences under the Act to be tried in a summary way. It further provided that in the case of a conviction on a summary trial, it would be lawful for the Magistrate concerned to pass a sentence of imprisonment for a term not exceeding one year. It is common ground between the parties that the offence alleged to have been committed by each of the respondents was one in respect of which the requisite notification had issued so that none of them, on conviction, could not be sentenced to imprisonment for a term exceeding one year and that the case against each of them was not only a summons case but also a non-cognizable one, which the police could not investigate except under orders of a Magistrate obtained in accordance with the provisions of Sub-section (2) of Section 155 of the Code of Criminal Procedure. It is further not disputed by either side that the investigation was held in contravention of those provisions. In 1964-66 Pun LR 68 (supra) Shamsher Bahadur, J., ruled that such an illegal investigation vitiates the trial held in pursuance of it. This was also the view taken in 66 Pun LR 580 = (AIR 1964 Punj 407) (supra) by P.D. Sharma, J., who expressed the opinion that such a trial would be without jurisdiction. In view of the pronouncement of their Lordships of the Supreme Court in H.N. Rishbud v. State of Delhi, AIR 1955 SC 196, which does not appear to have been brought to the notice of either Shamsher Bahadur, J., or P.D. Sharma, J., these two authorities cannot be said to lay down the law correctly. Their Lordships of the Supreme Court held that an invalid investigation would not necessarily nullify the cognizance or trial based thereon and observed:--

'The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises.

'A defect or illegality in investigation, however, serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Criminal P. C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Criminal P. C. is one out of a group of sections under the heading 'Conditions requisite for initiation of proceedings'. The language of this section is in marked contrast with that of the other sections of the group under the same heading, i.e., Sections 193 and 185 to 199.

These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190 (1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore, a nullity. Such an Invalid report may still fall either under Clause (a) or (b) of Section 190 (1) (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, Criminal P. C. which is in the following terms is attracted:

'Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrants, charge, proclamation, order judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice.'

'If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in 'Parbhu v. Emperor', AIR 1944 PC 73 and 'Lumbhardar Zutshi v. King', AIR 1950 PC 26.

These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.'

This dictum was reiterated by their Lordships in Munnalal v. State of Uttar Pradesh, AIR 1964 SC 28, and following it we hold that the learned Chief Judicial Magistrate could not refuse to take cognizance of the offence alleged to have been committed by each of the respondents, nor could the trials held by him be said to be vitiated merely because the investigation which terminated in the police reports forming the basis of the proceedings in his Court, was illegal.

8. The observations made in AIR 1955, SC 196 (Supra) are also a complete answer to the contention based on the provisions of Section 11 of the Act and raised on behalf of the respondents. It is not denied that a police officer is a public servant within the meaning of that section. It is further clear that in each case a report in writing of the facts constituting an offence under the Act was made by Sub-Inspector Mohar Singh (P. W. 1) who was such a servant. The argument that a report of this type must be based on an investigation legally held in order to enable the Magistrate concerned to take cognizance of the offence complained of therein is not deducible from what the section itself says in so many words and must be held to have been negatived by the following observations of their Lordships of the Supreme Court which are part of those cited above but which may be re-produced with advantage:

'While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore, a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), * * * * and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, Criminal P. C. * * * * is attracted.'

It follows that the cognizance of the cases against the respondents taken by the Chief Judicial Magistrate in pursuance of the reports presented to him by Sub-Inspector Mohar Singh (P. W. 1) did not contravene the provisions of Section 190 (1) of the Code of Criminal Procedure or of Section 11 of the Act and that in any case cognizance so taken amounted merely to an irregularity curable under Section 537 of the Code of Criminal Procedure unless it was shown that the respondents were prejudiced thereby, a situation the existence of which was not even urged on their behalf before us. We may note here that the view taken in 1962 (1) Cri LJ 623 (All) (supra) is to the same effect and therewith we respectfully agree.

9. In view of what we have said above, we conclude that the trials of the respondents are not open to attack on the ground of illegality and that the case against each one of them stands proved on facts. Consequently we accept these appeals, set aside the impugned orders and hold each one of them guilty of the offence of which he was, tried and convict him accordingly. The offence was committed as far back as the year 1965 since when the food situation in the country has radically changed for the better so that in the present context of things the offence cannot be viewed except as one of a petty nature. We are of the opinion, therefore, that a sentence of fine only will meet the ends of justice. The amount of such fine is fixed at Rs. 50/- in the case of each of the respondents, in default of payment whereof he shall suffer rigorous imprisonment for a month. The grams in question or, if they have been already sold under orders of the Court, their proceeds, shall stand forfeited to the State in each case.


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