A.D. Koshal, J.
1. By this judgment we shall dispose of fourteen appeals (Criminal Appeals Nos. 1028 to 1041 of 1966) which are directed against a similar number of orders, all dated the 18th of December, 1963, passed by Shri N.K. Jain, Magistrate 1st Class, Amritsar, in. the same number of complaints instituted by the Municipal Committee, Amritsar (hereinafter to be referred to as the Committee), each for an offence under Section 78 of the Punjab Municipal Act. 1911, and R. V.65 of the Punjab Municipal Account Code, the order in each case being that the accused persons concerned be 'discharged'.
2. The allegations made in the complaints mentioned above were identical except for the number and names of the accused persons in each of them and may be stated thus. In demi-offical letter No. XIII (39)-Vol. III/722 dated the 8th of April, 1959, addressed to the Executive Officer of the Committee, Shri Lakhi Singh, Examiner, Local Fund Accounts, Punjab, Jullundur, stated that considerable quantities of sugar had been imported into the Amritsar municipal limits without payment of octroi duty. The Committee passed resolution No. 52 dated the 9th of April, 1959, in pursuance of which the matter was reported to the police who held investigations and informed the committee by means of a letter dated the 19th of July, 1961, that an offence under Section 78 of the Punjab Municipal Act had been committed by the persons accused in each of the complaints mentioned above but that it was a non-cognisable offence, judicial action in regard to which could be taken only on a complaint filed by the Committee before the Court having jurisdiction. This letter was based on the report prepared by the police (as a result of the investigation) in which the details of the consignments of sugar imported into the Amritsar municipal limits as also of the octroi duty evaded on various occasions were given. Accused No. 1 (who is a different person or firm in each of the 14 cases) was the person or firm, according to the findings of the police, who had bought sugar from various mills and had brought the same to the Bhagtanwala Railway Station, Amritsar, under different railway receipts, the details whereof appeared in the police report. He deputed Sant Singh, a Station Broker working at the Bhagtanwala Railway Station (who figures as respondent No. 3 in Appeals Nos. 1028 to 1033 and 1039 to 1041, as respondent No. 6 in Appeal No. 1034, as respondent No. 8 in Appeal No. 1035, as respondent No. 4 in Appeal No. 1036 and as respondent No. 5 in Appeals Nos. 1037 and 1038) to take delivery of the sugar so imported which was intended for consumption, use or sale within the said municipal limits. Sant Singh was bound under Rules V.23 and V.24 of the Municipal Account Code to present the railway receipts in question at the railway barrier and to make payment of the octroi duty due on the goods covered by them before taking delivery thereof but he obtained such delivery without doing any such thing so that accused No. 1 and Sant Singh were guilty of offences under Rule V.65 of the Municipal Account Code. Besides, accused No. 1, Sant Singh accused and the other accused had imported sugar within the octori boundary of the Amritsar Municipality without payment of octroi duty and with the intention of defrauding the Committee and all of them had, therefore, committed an offence under Section 78 of the Punjab Municipal Act as per information given by the police in their letter dated the 19th of July, 1961, above mentioned.
3. A list of documents accompanied each of the fourteen complaints. The documents mentioned included the demi-official letter addressed by the Examiner, Local Fund Account, Punjab, to the Executive Officer of the Committee, resolution No. 52 dated the 9th of April, 1959, passed by the Committee, the first information report made by the committee to the police, the report prepared by the police after investigation, the police investigation file, the records of the sugar mills concerned, the delivery register maintained at the Bhagtanwala Railway Station and the railway receipts mentioned in the police report.
4. Some of the accused persons in a few of the complaints came to a settlement with the Committee and were acquitted. Some others could not be served and separate proceedings were directed to be taken against them. On behalf of the other accused a request was made by their counsel that copies of all the documents mentioned in the list appended to the complaints be made available to him. This request was accepted by the trial Court and an order in accordance therewith was passed. Later on, an objection was raised by the Committee that it was not bound to supply the copies but the trial Court did not vary its order and adjourned the cases a number of times in order to enable the Committee to supply the copies. Ultimately, the trial Court held in the impugned orders that the Committee had no desire to prosecute the accused persons inasmuch as it had failed to supply the copies which it was its duty to supply for the following reasons:
(1) Under Section 204 (1-B) of the Code of Criminal Procedure accused persons are entitled to copies of the complaint and documents attached to a complaint are part thereof.
(2) Documents relied upon by the prosecution, especially in cases investigated by the police are part of the complaint.
(3) Section 173 of the Code of Criminal Procedure provides for the supply of documents to accused persons in cases investigated by police officers. See also Ram Krishna Dalmia v. State , Thota Ramalingeswara Rao v. State of Andhra Pradesh AIR 1958 Andh Pra 568, In re Rangaswami Goundan : AIR1957Mad508 , and Pulukuri Kottaya v. Emperor AIR 1947 PC 67.
(4) The Committee had failed to furnish the copies in spite of a direction by the Court to obey which it had sufficient opportunity and to have which set aside in appeal it took no steps.
In this view of the matter the trial Court held that the sole purpose of the prosecution appeared to be to cause harassment to the accused persons whom it, therefore, 'discharged'.
5. The first point raised by learned Counsel for the Committee was that all the 14 cases fell within the category of summons-cases in relation to which the Code of Criminal Procedure does not envisage an order of discharge in any event and that the impugned orders were liable to be set aside on that account alone. To the first part of this contention no exception can be taken as Chapter XX of the Code, which deals with the trial of summons-cases, does not talk of an order of discharge at all. On the other hand, it is clear from the provisions thereof that the proceedings against an accused person in a summons-case can end only in two ways, i.e., either in his conviction or his acquittal. The second part of the contention, however, does not commend itself to us as it is well recognised that an order of 'discharge' passed in such circumstances would amount to one of acquittal and may be treated as such. The contention, therefore, does not help the Committee in any way.
6. Learned Counsel for the Committee then challenged the impugned orders with the contention that the cases dealt with by the trial Court were summons-cases instituted on complaints, that the provisions of Section 173 of the Code of Criminal Procedure were wholly inapplicable to such cases, that the Code made a distinction between cases instituted upon police reports and those instituted upon complaints in the matter of supply of copies of documents relied upon by the prosecution and that such documents could not be considered part of the complaint in cases of the latter type. With this contention we find ourselves in full agreement and for the reasons hereafter appearing have no hesitation in holding that the trial Court fell into a serious error of law in dismissing the complaints with an order of 'discharge'.
7. The provisions of Sections 4(1)(h), 173(4), 204(1-B). 251 and 251-A(1) of the Code of Criminal Procedure are relevant and may be quoted here for facility of reference:
4 (1) (h) 'complaint' means the 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 it does not include the report of a police-officer:
173 (4) After forwarding a report under this section, the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under Sub-section (1) and of the first information report recorded under Section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under Section 164 and the statements recorded under Sub-section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
204 (1B) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under Sub-section (1) shall be accompanied by a copy of such complaint.
251. In the trial of warrant cases by Magistrates, the Magistrate shall,--
(a) in any case instituted on a police report, follow the procedure specified in Section 251-A, and
(b) in any other case, follow the procedure specified in the other provisions of this Chapter.
251-A (1) When, in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents referred to in Section 173 have been furnished to the accused, and if he finds that the accused has not been furnished with such documents or any of them, he shall cause them to be so furnished.
A perusal of these provisions leaves no room for doubt that a police report requesting a Magistrate to take cognisance of an offence under the Code of Criminal Procedure is treated as something apart from the documents on which that report may be based or which may have been relied upon by the police in support thereof and that special provisions have been made in Sections 173(4) and 251-A (1) for furnishing copies of such documents to the accused. These provisions were introduced by the Code of Criminal Procedure (Amendment) Act, 1955 but a similar provision was not enacted in respect of documents appended to a complaint or relied upon in support thereof by the complainant. Had the Legislature intended to treat a complaint at par with a police report in this behalf, there is no reason why similar provisions should not have been specifically made part of the Code with regard to cases instituted on complaints.
It is true that in a proceeding instituted on a complaint in writing, a copy of such complaint has to accompany the summons or warrant issued to the accused with a view to enforce his appearance in Court but then it cannot be said that a complainant is bound either by virtue of an express provision of law or by necessary implication to furnish to the accused copies of documents produced by him along with the complaint or relied by him in support thereof. The assumption made by the learned trial Magistrate that such documents are part of the complaint appears to us to be without justification in view of the definition of 'complaint' appearing in Section 4(1)(h). For a document to come within the ambit of that section only the following three (four?) conditions have to be satisfied:
(i) It must be made to a Magistrate;
(ii) it must be made with a view to his taking action under the Code;
(iii) it must contain an allegation that some person whether known or unknown has committed an offence; and
(iv) it must not be the report of a police officer.
Each one of these conditions is fulfilled in the case of every one of the 14 complaints in question and the first two of them are not satisfied in the case of the documents relied upon by the Committee even though such documents may be containing important details of the manner in which the offences complained of were committed and in spite of the fact that a reference to some of those documents appears in the complaint itself.
8. The authorities relied on by the trial Magistrate are wholly inapplicable to the facts of the cases before us. The first three of them covered cases instituted on police reports and no question arose therein of the applicability or the adoption of the procedure provided for in Section 173 to or in cases instituted upon complaints. The Privy Council authority cited related to a case in which copies of statements made by prosecution witnesses to the Investigating Officer were not furnished to the accused. Their Lordships held that Section 162 of the Code of Criminal Procedure gave to the accused a right to have such copies and that such right was a very valuable one. Everyone of these authorities, therefore, is irrelevant for the purpose of the decision of the question before us inasmuch as Sections 162(251-A?) and 173 of the Code specifically give the accused a right to have copies of certain documents in cases instituted upon police reports while the situation, as we have already seen, is entirely different in cases instituted upon complaints. Learned Counsel for the respondents did not seek to justify the reliance placed by the trial Court on the four authorities just discussed but urged that it had rightly held the documents in question to be part of the complaints (an argument which we have already repelled) and that the trial Court must in any case be held to have exercised its inherent powers of passing of such orders as may be necessary for advancing the cause of justice. He has relied upon Hariram v. State AIR 1956 Madh Bha 17, for the proposition that in spite of the fact that Section. 561-A of the Code of Criminal Procedure saves the inherent powers of the High Courts alone. Courts subordinate to the High Courts cannot be deemed to have been divested of those powers by reason of the fact that no similar provision exists in their case. In these proceedings, however, we need not go into the question decided in the authority just mentioned as we were clearly of the opinion that the trial Court had no inherent power to direct the Committee to furnish copies of the documents relied upon by it to the accused. It is true that there is no express prohibition in the Code in the matter of supply of copies in complaint cases but then such a prohibition must be held to have been necessarily intended by the Legislature by reason of the introduction in 1956 of the provisions of Sections 173(4) and 251 A. (1) and of the absence of similar provisions in relation to cases instituted on complaints.
9. For the reasons stated, we hold that the impugned orders are vitiated by a serious error of law. Ordinarily we would set them aside and order a retrial but the adoption of such a course does not appear to be appropriate because of the circumstance that since the cases were made over to the police by the Committee in 1959 the proceedings against the respondents have gone on for about 10 years during which period the respondents have suffered from suspense and it would not be conducive to justice if the proceedings are started afresh. In this connection we may refer with advantage to the following observations of their Lordships of the Supreme Court in Machander v. State of Hyderabad : 1955CriLJ1644 :
Justice is not one-sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detection of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go.
Except in clear cases of guilt, where the error is purely technical, the forces that are arrayed against the accused should no more be permitted in special appeal to repair the effects of their bungling than an accused should be permitted to repair gaps in his defence which he could and ought to have made good in the lower Courts. The scales of justice must be kept on an even balance whether for the accused or against him, whether in favour of the State or not and one broad rule must apply in all cases.
The accused in that case whose trial for murder was held to have been vitiated by reason of material circumstances appearing in the evidence against him not having been put to him under Section 342 of the Code of Criminal Procedure was acquitted, their Lordships not being prepared to order retrial in view of the fact that the proceedings had continued already for 4$ years.
10. In view of what we have said, we hold the impugned orders to be vitiated by a serious error of law but refuse to set them aside. In consequence, all the fourteen appeals are dismissed.
Jindka Lal, J.
11. I agree.