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State Vs. Khazan Chand - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1971CriLJ134
AppellantState
RespondentKhazan Chand
Cases ReferredPravin Chandra Mody v. State of Andhra Pradesh
Excerpt:
.....a single judge in exercising powers of superintendence under article 227 of the constitution. - , as he then was, speaking for the court that in all those cases where the law requires a report in writing by a public servant the requirements of the law are satisfied when a report is filed by a public servant who is also a police offioer......of the offence in view of b. 11 of the essential commodities act as a report submitted by a police officer is not a report by a public servant as contemplated by that section, which reads as under:- 'no court shall take cognizance ol 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 penal code.'5. these contentions prevailed with the learned chief judicial magistrate, who passed the orders which are the subject-matters of the above appeals before us.6. the learned chief judicial magistrate relied upon two single bench judgments of this court in lai chand v. the state, (964) 66 pun l r 68=(1964 (2) cri l j 115) and om prakash v. the state (1964) 66 pun l.....
Judgment:

Jindra Lal, J.

1. This order and judgment will dispose of nine criminal appeals, being Criminal Appeals Nos. 372, 373, 374, 375, 376, 377, 378, 379 and 380 of 1966. They arise out of similar facts and involve common questions of law and were beard together.

2. Shortly put, the facts are that the District food and Supplies Controller, Hissar, made reports in writing to the Station House Officer, Hissar City, against the various respondents in these appeals, alleging contravention of the provisions of the Punjab food Grains Dealers Licensing Order, 1964, and the provisions of the Punjab Gram (Regulation of Distribution) Order, 1964, made under the Essential Commodities Act of 1955.

3. On the receipt of these reports, the Station Hou3e Officer recorded First Information Reports against the respondents and registered cases Under Section 7 of the Essential Commodities Act of 1955. The Station House Officer then investigated the cases and filed chargo-sheet3 against the various respondents before the Chief Judicial Magistrate, Hissar. Taking cognizance of the cases, the Chief Judicial Magistrate, Hissar, issued processes to the various respondents. The respondents made applications to the Chief Judicial Magistrate for dropping proceedings against them contending that the investigation by the police was unauthorised and that consequently the Chief Judicial Magistrate could not take cognizance of the offence or try the same.

4. It was urged that the offences disclosed in the reports made by the District Food and Supplies Controller, Hissar, and for which the respondents were to be tried were noncognizable and that the investigation was in fact carried out in violation of the provisions contained in Section 155(2) of the Criminal P.C., It was contended that since the investigation had been carried in derogation of the mandatory provisions of Section 155 (l) and (2), Criminal P, C., the reports submitted by the officer in charges of the police-station could not be valid and legal reports and therefore, the learned Magistrate had no jurisdiction to take cognizance of the cases. Consequently, it was contended that the contravention of Section 155 (2), Criminal P.C., affect the very act of cognizance and all proceedings the without jurisdiction and of no consequence. It was further contended that in any case the learned Magistrate could not take cognizance of the offence in view of B. 11 of the Essential Commodities Act as a report submitted by a police officer is not a report by a public servant as contemplated by that section, which reads as under:- 'No Court shall take cognizance ol 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 Penal Code.'

5. These contentions prevailed with the learned Chief Judicial Magistrate, who passed the orders which are the subject-matters of the above appeals before us.

6. The learned Chief Judicial Magistrate relied upon two Single Bench judgments of this Court in Lai Chand v. The State, (964) 66 Pun L R 68=(1964 (2) Cri L J 115) and Om Prakash v. The State (1964) 66 Pun L R 580=(A.I.R. 1964 Punj 407). In the former case, a police officer started investigation of non.cognizable cases for offences Under Sections 467, 468 and 471 of the Penal Code and Section 82 of the Indian Registration Act, without the sane, tion or order of the Magistrate, as required by Sub-section (2) of Section 155, Criminal P.C. It was held by a learned Single Judge of this Court that the trial was vitiated and the irregularity was not curable Under Section 537 of the Criminal P.C. A similar view was taken in (1964) 66 Pun LR 58O=(A.I.R. 1964 Punj 407).

7. learned Counsel for the Stats contended that these authorities did not lay down the correct law and relied, amongst other authorities, upon a judgment of the Supreme Court in H N. Rishbud v. State of Delhi : 1955CriLJ526 . Under Section 5(4) of the Prevention of Corruption Act, a police officer below the rank of a Deputy Superintendent of Police is not entitled to investigate any offence punishable under sub.s (2) of S, 5 of that Act without an order of a Magistrate of the first Class. The first information reports in that case were laid in April and June, 1949, but permission of the Magistrate for investigation as against public servants concerned, by a police officer of a rank lower than a Deputy Superintendent of Police, was given in March/April 1951. Charge-sheets were filed by such officer in August/November 1951, i.e., subsequent to the date on which permission was granted to investigate. Admittedly, however, the investigation was entirely or mostly completed in between the dates when the first information was laid and the permission to investigate by an officer of a lower rank was accorded. It was found as a fact that the whole investigation was conducted not by a Deputy Superintendent of Police but by officers of lower rank and that after the permission was accorded very little investigation was done, It was held in that case that Section 5(4) and proviso to Section 3 of the Prevention of Corruption Act as it stood prior to its amendment by Act 59 of 1952 and the corresponding 8. 5-A as inserted by Amending Act 59 of 1952 are mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality. It was held further that it could not be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Further, that while no doubt, in one sense, ole. (a), (b) and (o) of 8. 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 Clauses (a) and (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. Their Lordships further held that if 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. Relying upon Prabhu v. Emperor AIR 1944 P C 73 and Lumbhardar Zutshi v. The King A.I.R. 1950 P C 26, it was held that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial.

8. In that case, the trial had proceeded and had resulted in conviction and the Court held 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. Further, that when a breach of the mandatory provisions of Section 5A, Prevention of Corruption Act is brought to the notice of the Court at an early stage of the trial, the Court will have to consider the nature and extent of the violation and pass appropriate orders for such re-investigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Act. It will, therefore, be seen that law has been settled that a defect and illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to the cognizance or trial. Some other Courts have taken this view, but those authorities need not be mentioned in view of the law laid down by the Supreme Court.

9. The second question that arises for consideration, in these appeals, is whether in the circumstances of the case a report submitted by a police officer can be treated as a report by a public servant. This argument was made in view of Section 11 of the Essential Commodities Act, 1955, which has been set out earlier in this judgment.

10. The learned Chief Judicial Magistrate has come to the conclusion that because private complaint was barred Under Section 11 of the Essential Commodities Act, the word 'report' used in that Section meant a report of a public servant authorised to deal with the case, that is, that the report should have been to the Magistrate either by the Director, Food and Supplies or the District Magistrate or Inspector appointed by the Director of Government since they alone had power to enter, search and seize documents under the Punjab Gram (Regulation of Distribution) Order, 1964. He, therefore, came to the conclusion that the police officer was not such a public servant and that the requirement of the law is that a report should have been by a public servant who was not a police officer.

11. This matter has also been settled by their Lordships of the Supreme Court in Pravin Chandra Mody v. State of Andhra Pradesh, : 1965CriLJ250 . That was a case where a police officer investigating a case Under Section 420, Penal Code, also investigated a case Under Section 7 of the Essential Commodities Act. A question there also arose whether the report submitted by a police officer for an offence Under Section 7 of the Essential Commodities Act could be treated as a report by a public servant. It was held by Hidayatullah J., as he then was, speaking for the Court that in all those cases where the law requires a report in writing by a public servant the requirements of the law are satisfied when a report is filed by a public servant who is also a police offioer. Consequently, in view of this Supreme Court authority) it is futile to contend that the1 report was not by a public servant, as required by Section 11 of the Essential Commodities Act.

12. The law, therefore, seems to be dear. Undoubtedly, a police officer is not authorised to investigate a non-cognizable offence without the permission of a Magistrate having jurisdiction in the matter, but if he does so and files a report before a Magistrate, the Magistrate cannot refuse to take cognizance of the matter. Under what sub-section of Section 190, Criminal P.C., he takes cognizance is another matter, with which we are not concerned in these proceedings. If the Magistrate takes cognizance Under Section 190, Sub-section 1(b) and an objection is raised at the initial stages that the investigation was without jurisdiction or illegal, it is for the Magistrate to cure the irregularity as envisaged in AIE 1955 SO 196. If, on the other hand, the trial proceeds without any objection, such a trial is not illegal and in order to have it set aside prejudice to the accused must be established.

13. Large number of other authorities were cited at the bar from both sides, but it is not necessary to refer to them in view of the two authorities notel above.

14. In view of what has been observed above, it is patent that the acquittal of the accused in each of these cases is contrary to law. We notice, however, that cases against the various respondents were registered as far back as 1964 and the orders of the Chief Judicial Magistrate acquitting them were announced in 1965. The offences are of a petty nature, the allegation being that the respondents had not maintained foodgrain stock registers as prescribed under condition No. 3 of the foodgrain licences held by them and that they had not maintained the accounts correctly. In view of these circumstances, we do not consider that in the present cases a retrial need be ordered. These appeals shall stand disposed of accordingly.

A.D. Koshal, J.

15. I agree.


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