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T.V. Abdul Nazar and anr. Vs. P.K. Mohammed Kutty, Drug Inspector and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1986CriLJ1534
AppellantT.V. Abdul Nazar and anr.
RespondentP.K. Mohammed Kutty, Drug Inspector and anr.
Cases Referred and Manu Lai Sah v. State of Bihar
Excerpt:
.....to take cognizance or the right of vindication of justice in relation to the offences under the act are restricted or taken away except as provided in section 11 which has to be read subject to the provisions of section 12 aa(1)(e). 14. probably the legislature might have thought that in view of the seriousness of the offences and their impact on the society, cognizance could be had on a police report as well as on the reports of other public servants, who are competent to do so. a complaint by a concerned public servant will be well within his competence and there is no bar in taking cognizance on the basis of such a complaint which is provided in section 11. in this case, cognizance was taken on the basis of a report from an officer, who is competent to launch a prosecution under..........the act shall be triable only by a special court and (2) the special court may, upon perusal of a police report, take cognizance of the offence without the accused being committed to it for trial. the first provision mentioned above comes under section 12 aa(1)(a) and the second one comes under section 12-aa(1)(e). the contention is that on account of the provision referred to as item 2 above, the special court is competent to take cognizance only on a police report and by no other method. in other words, the argument was that by the introduction of section 12 aa(1)(e), section 11 of the principal act must be deemed to have been impliedly repealed in its operation during the temporary period of five years when the amending act is put in force.4. before the commencement of the amending.....
Judgment:
ORDER

S. Padmanabhan, J.

1. Petitioners are the accused in S.T.6 of 1985 pending before the Special Judge, Trichur. That case was instituted on a complaint filed by the 1st respondent, Drug Inspector. The complaint is for offences punishable under para 21 of the Drugs (Prices Control) Order, 1979 read with Sections 3 and 7(1)(a)(ii) of the Essential Commodities Act, 1955. In this petition filed under Section 482 of Cr. P.C. the prayer is for quashing the proceedings in S.T. 6/85. The simple question for consideration is whether the Special Judge is competent to take cognizance of the offence on a complaint filed by the Drugs Inspector and proceed with the case.

2. Section 11 of the Essential Commodities Act, 1955 (Act 10 of 1955) 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 I.P.C. (45 of I860).

3. The Essential Commodities Act was amended by the Essential Commodities (Special Provision) Act, 1981 (Act 18 of 1981). The amendments were intended to be operative only for a temporary period of five years. The object of the amendment was to deal more effectively with persons indulging in hoarding and blackmarketing of, and profiteering in, any essential commodities and the evils of vicious inflatory prices and for matters connected therewith or incidental thereto. Section 2 of the Amendment Act provided that during its continuance, the principal Act (Essential Commodities Act, 1955) shall have effect only subject to Sections 3 - 11 of the Amendment Act. By Sections 3 - 13 of the Amending Act, most of the sections in the principal Act were drastically amended temporarily for the purpose of achieving the abovesaid object. Section 10A of the principal Act was amended. Section 12 was omitted. Section 12A was substituted in order to provide for constitution of special courts consisting of a single Judge. The single Judge shall be a person qualified to be appointed as a Judge of the High Court or who has been a Sessions Judge or Addl. Sessions Judge for a minimum period of one year, A new provision was inserted as Section 12AA, which among other things provided that (1) all offences under the Act shall be triable only by a Special Court and (2) the Special Court may, upon perusal of a police report, take cognizance of the offence without the accused being committed to it for trial. The first provision mentioned above comes under Section 12 AA(1)(a) and the second one comes under Section 12-AA(1)(e). The contention is that on account of the provision referred to as item 2 above, the Special Court is competent to take cognizance only on a police report and by no other method. In other words, the argument was that by the introduction of Section 12 AA(1)(e), Section 11 of the principal Act must be deemed to have been impliedly repealed in its operation during the temporary period of five years when the Amending Act is put in force.

4. Before the commencement of the Amending Act Magistrates had jurisdiction to try cases under the principal Act. There was a total prohibition under Section 11 of the principal Act in taking cognizance of offences except on a report in writing by a person who is a public servant as defined in Section 21 of the I.P.C. At the time of arguments before me, it was not disputed by either side that a 'public servant' mentioned in Section 11 includes a police officer and 'report' mentioned therein includes one filed under Section 173(2) or 173(8) of the Cr. P.C. by a police officer. To bring an offender to justice is the right of every citizen. Probably, Section 11 of the principal Act introduced a restriction to this right only by way of protection or safeguard against harassment by interested persons. Rival businessmen may be interested in filing false complaints against their counterparts in business. The provision introducing a restriction in the right of bringing offender to justice must have been for the purpose of acting as a safeguard against such prosecutions. That may be the reason why Section 11 contains an injunction against courts in taking cognizance of offences under that statute except as provided therein. Anyhow taking cognizance on a police report was admittedly within the contemplation of Section 11. Section 11 contemplated not only taking cognizance on the basis of a police report but also on the basis of reports in writing by other public servants competent to do so.

5. The main item of amendment introduced by Amending Act is the constitution of Special Courts and giving exclusive jurisdiction to such courts. The jurisdictions of other courts were specifically ousted. So also the amendments had the effect of changing nature of the offences. Amendments were made in respect of granting bail also. The other amendment relevant for our purpose is Section 12-AA(1)(e) which provides that Special Courts may take cognizance of offences on a police report without the accused being committed to it for trial. Main reliance by the petitioner was on this provision. The contention was that this provision operates as a total bar in taking cognizance by any method other than a police report.

6. In this connection the petitioners placed reliance on the following decisions. In Re : Satish Chandra De, 1984 Cri LJ 1532. That is a decision of the Calcutta High Court. Ram Prasad Sharma & Sons v, State of Rajasthan, 1985 Cri LJ 442. That is a decision of the Jaipur Bench of the Rajasthan High Court. Ranendra Kumar Swain v. State of Orissa (1985) 59 Cut LT 324. This decision only followed the other two decisions. These decisions held that during the subsistence of the Amending Act cognizance could be taken only on the basis of a police report and not otherwise. It was also held by those decisions that Section 12-AA(1)(e) of the Amending Act must be deemed to have impliedly repealed Section 11 of the principal Act during the period of temporary operation of the Amending Act.

7. In Re : Satish Chandra De, 1984 Cri LJ 1532 (Cal) it was held:

So long as the Amending Act, which is a temporary one, operates in the field Section 11 cannot be taken recourse to prosecute a person accused of an offence under the Act. That is to say, during the subsistence of the Amending Act cognizance can be taken only on police report under Section 12AA(1)(e) and not otherwise. Consequently, where a complaint was filed by Sub-Divisional Controller, Food and Supplies for violation of W.B. Kerosene Control Order, 1968 before the Special Judge, the Special Judge was not competent to take cognizance of the offence.

Read in the context of the objects and reasons behind the enactment of the Amending Act and the stringent provisions enacted pursuant thereto, it appears that recourse to Section 11 of the Act, which provides that no Court shall take cognizance of any offence punishable under that Act except on a report in writing of the facts constituting such offences made by a person who is a public servant as defined in Section 11 of the Indian Penal Code, would frustrate the entire scheme of the Amending Act. If cognizance is taken on complaint the mode of trial would be different from the one where cognizance is taken on police report. Thus, for the self-same offence there would be two different modes of trial without any rational basis for the same.

The principle laid down in Ram Prasad Sharma & Sons v. State of Rajasthan 1985 Cri LJ 442 (Raj) was:

The provisions of Section 12AA(1)(e) are mandatory in nature and are having overriding effect over Section 11 to achieve the object laid down in the Amending Act No. 18 of 1981.

8. In my opinion a conclusion that Section 11 stands impliedly repealed during the period of operation of the Amending Act is not possible for the provisions (sic). By Sections 3 - 11 of the Amending Act almost all the Sections of the Principal Act were drastically amended temporarily. Section 10A has been amended and Section 12 was omitted. But the intervening Section 11 has been kept intact without any amendment at all. If the legislature wanted Section 11 to be inoperative during the temporary period of the amendment, nothing prevented it from deleting the section or amending the same suitably. In the context, it may not be correct to interpret that Section 11 was retained untouched due to an omission. A legislative provision could be modified or deleted by repeal, amendment, annulment or by the doctrine of implied repeal. In this case there is no legislative repeal, substitution or amendment of Section 11. The doctrine of implied repeal will come into play only in cases where there are statutes with provisions which are mutually conflicting. Here, there is only one statute and the provisions are not conflicting also. What is involved is only interpretation of the provisions of Section 11 and the amended Section 12AA. By no stretch of imagination it could be held that Section 11 and Section 12AA(1)(e) are conflicting with each other or mutually exclusive. It is not possible to say that the provisions of Section 12AA(1)(e) enabling the special courts to take cognizance on a police report without the accused being committed for trial, is in any way in conflict with Section 11. As already stated by me, the report under Section 11. could include a police report also. Under Section 12AA(l)(e), there is no prohibition in taking cognizance by any method other than a police report. What the section says is only 'may' take cognizance. The words 'without the -accused being committed to it for trial' obviate the possibility of any doubt. Probably, the legislature might have thought it necessary to have specific mention of a police report by way of clarification to the provisions of Section 11 which is likely to be interpreted as excluding a police report. In Section 11 there is no specific mention of a police report. By the amendment, jurisdiction has been exclusively given to the Special Court, which has to be manned by a person, who is qualified for appointment as a Judge of the High Court or who had been a Sessions Judge or Additional Sessions Judge for not less than one year. These provisions are indicative of the fact that the Special Court mentioned in the amended provision is having the status and position of a Sessions Court. Section 193 of the Cr. P.C. provides that no Sessions Court shall take cognizance of any offence in its original jurisdiction except on committal by a Magistrate. It has to be noted that one of the objects of the Amending Act is to provide speedy disposal of the cases coming under the Essential Commodities Act. Probably the legislature might have thought that in the absence of a specific provision like the one incorporated in Section 12AA(i)(e), there is the possibility of a doubt that the Special Courts could take cognizance only on committal by a Magistrate. Probably by the amendment, the legislature wanted to remove such a possible doubt. No other object or purpose could be read into Section 12AA(i)(e). I do not think that it will be proper for the courts to import the doctrine of implied repeal of Section 11 when the legislature has consciously chosen to leave Section 11 of the Principal Act untouched. Such an interpretation, I am afraid, will be importing a legislative intent which could not be read into the provisions.

9. Taking cognizance of offences simultaneously by different methods is not a procedure foreign to the concept of criminal law, The concept of the Code of Criminal Procedure itself provides for it. Cognizance in more ways than one is not unknown to the Code of Criminal Procedure. That is basic in the concept of the provisions of the Code of Criminal Procedure which is made applicable to trial of cases under the provisions of the Essential Commodities Act. For example, Section 190 of the Cr. P.C. provides for taking cognizance of offences (1) on a complaint, (2) on a police report, or (3) upon information received from any person other than a police officer or upon information of the court itself. Even in a cognizable case, the courts are entitled to take cognizance on a complaint or on other informations, even though there is prohibition against the police in investigating non-cognizable offences without an order from the Magistrate. Even if it is construed that Section 11 does not include a police report, it could only be taken that the amendment wanted cognizance to be taken on a police report also. Section 2 of the Amending Act provides that during the continuance of the amendment, the unamended provisions of the principal Act shall have effect only subject to the amendment.

10. Even if it is construed that there is any conflict between Sections 11 and 12-AA(1)(e), the maximum that could be said is that Section 11 will have operation only subject to the provisions of Section 12-AA(1)(e). That only means that the rigour of the prohibition in Section 11 must be deemed to have been relaxed even if Section 11 is taken as excluding a police report. Even if there is conflict between the provisions, the object and purpose of interpretation should be to give effect to both the provisions to the extent possible. Interpretation will have to be made with that object in view. The object of interpretation must be to have a compromise between the rival provisions to the extent possible. The object of interpretation should not, as far as possible, be to make one of the provisions redundant. As I have already stated the recognised principle of criminal jurisprudence is that any one could set the law in motion. Indications to the contrary in special statutes are only exceptions and such restrictions will have to be strictly interpreted as they are against the normal concepts of criminal jurisprudence.

11. In A. R. Antulay v. R.S. Nayak : 1984CriLJ647 the question that arose for consideration was whether Section 8(1) of the Prevention of Corruption Act which conferred powers on the Special Judge to take cognizance of offences set out in Section 6(1)(a) and (b) does not directly or indirectly, expressly or by necessary implication, indicate that the only method of taking cognizance is the police report under Section 173(2) of the Cr. P.C. submitted by a police officer of the designated rank or permissible rank as set out in Section 5A of the same Act. The question of interpretation of statutes also came up for consideration and decision in that case. On the first point it was held:

Before we undertake a detailed examination of the submission that Section 5-A incorporates a condition precedent to the taking of the cognizance of an offence by a special Judge, it is necessary to state with clarity and precision that Section 8(1) which confers power on the Special Judge to take cognizance of offences set out in Section 6(1)(a) and (b) does not directly or indirectly, expressly or by necessary implication indicate that the only method of taking cognizance is the police report under Section 173(2) of the Criminal P.C. submitted by a police officer of the designated rank or permissible rank as set out in Section 5-A. It merely says 'A Special Judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused person, shall follow the procedure prescribed by the Criminal P.C. 1898 for the trial of warrant cases by Magistrates'. The Criminal P.C. has prescribed four known methods of taking cognizance of offences by the Courts competent to try the same. The Court has to take cognizance of the offence before initiation of the proceeding can be contemplated. The Court called upon to take cognizance of the offence must apply its mind to the facts placed before it either upon a police report or upon a complaint or in some other manner the Court came to know about it and in the case of Court of Session upon commitment of the case by the Magistrate.

On the second question the decision was:

It is a well-established canon of construction that the Court should read the section as it is and cannot rewrite it to suit its convenience; nor does any canon of construction permit the Court to read the section in such manner as to render it to some extent otiose. Section 8(1) says that the Special Judge shall take cognizance of an offence and shall not take it on commitment of the accused. The Legislature provided for both the positive and the negative. It positively conferred power on Special Judge to take cognizance of offences and it negatively removed any concept of commitment. It is not possible therefore, to read Section 8(1) as canvassed on behalf of the appellant that cognizance can only be taken upon a police report and any other view will render the safeguard under Section 5-A illusory.

12. In Re: Satish Chandra De 1984 Cri IJ 1532 (Cal) and Ram Prasad Sharma & Sons v. State of Rajasthan 1985 Cri LJ 442 (Raj) are both single Bench decisions which have not taken into account the aboyesaid principles laid down by the Supreme Court. Contrary views were taken in two Division Bench decisions of the Patna High Court in Nawal Kishore v. State of Bihar 1985 Cri LJ 254 and Manu Lai Sah v. State of Bihar 1985 Cri LJ 260. In Nawal Kishore's case 1985 Cri LJ 254, a Division Bench of the Patna High Court after considering the decision in A. R. Antulay's case : 1984CriLJ647 held:

Further, as the power to try a case includes the power to take cognizance, it would follow that Special Courts under the Act cannot be barred from taking cognizance by the well known and accepted mode of a complaint of facts constituting such offences if it satisfies the requirement of Section 11 of having been made by a public servant.

So also the principle laid down in Manu Lal Sah's case 1985 Cri LJ 260 (Pat) was:

Special Court can take cognizance of an offence under Section 11 of the Act, upon a complaint preferred by a public servant. The Special Court under Section 12AA(1)(e) is a Court of original criminal jurisdiction. No question of any commitment to the Special Court under the Act at all arises. Indeed far from being so, the Special Court is enjoined to try offences under the Act in a summary way. Consequently the Special Court under the Act is not to be hidebound by the terminological status description of either a Magistrate or a Court of Session. It must exercise all powers which a Court of original criminal jurisdiction enjoys and undoubtedly the power to take cognizance of an offence is one of them

13. Objects of the amendments, creation of Special Courts, exclusive jurisdiction given to the Special Courts, gravity of the offences by the amendment as well as restrictions in the grant of bail, by themselves cannot be taken as considerations in determining the methods by which cognizance was intended to be taken. When the statute itself provides as to how cognizance will have to be taken by the courts, it may not be proper for the courts to read into the provisions that one of the modes of cognizance provided in the statute has been impliedly repealed by another provision especially when an interpretation of the latter provision cannot yield such a consequence. So far as the case in hand is concerned, the provisions of Section 11 authorise cognizance being taken on the report of a public servant which includes a police report under Sections 173(2) and 173(8) of the Cr. P.C. As I have earlier stated, Section 12-AA(1)(e) only clarifies the position by saying that cognizance could be had on the basis of a police report also. It appears that the main object of Section 12-AA(1)(e) is to provide that in spite of the provision in Section 193 of the Cr. P.C. as a court of original jurisdiction, the Special Judge will be competent to take cognizance without a committal proceeding. By no stretch of imagination, it could be read into the provisions of Section 12-AA(1)(e), a legislative intent to exclude the operation of Section 11. A harmonious interpretation keeping alive Sections 11 and 12 AA(1)(e), which appear in quick succession in the statute is possible and a contrary interpretation is impossible also. In such a contingency, I think it is not the province of the Court to read into the provisions of Section 12- AA(1)(e), what is not evidently the legislative intent. None of the provisions of the principal Act or the Amending Act are indicative of the fact that the right to take cognizance or the right of vindication of justice in relation to the offences under the Act are restricted or taken away except as provided in Section 11 which has to be read subject to the provisions of Section 12 AA(1)(e).

14. Probably the Legislature might have thought that in view of the seriousness of the offences and their impact on the Society, cognizance could be had on a police report as well as on the reports of other public servants, who are competent to do so. Restrictions on the grant of bail and seriousness of the nature of offences by themselves are not capable of reading into the provisions a legislative intent which is against the concept of criminal jurisprudence in the matter of bringing offenders to justice. Restrictions which could be understood from the provisions of the statute alone could be imposed on such rights. Probably depending upon the facts and circumstances of each case, the Legislature might have thought that discretion should be on the concerned authorities to decide whether in a particular case investigation by the police is necessary or whether report from a concerned public servant is sufficient for the purpose of bringing the offender to justice. I have earlier stated that the only object that could be read into the provisions is avoidance of harassment at the hands of private individuals such as rival traders or general public. In my opinion, on a consideration of the entire provisions, there is no possibility of any conflict between the two provisions. They are not mutually exclusive also. Therefore no question of implied repeal of Section 11 could be considered as the Legislative intent. A complaint by a concerned public servant will be well within his competence and there is no bar in taking cognizance on the basis of such a complaint which is provided in Section 11. In this case, cognizance was taken on the basis of a report from an officer, who is competent to launch a prosecution under the provisions of Section 11. No question of abuse of the process of court is involved. So also a contingency has not arisen where this Court has to interfere for the purpose of securing ends of justice. The petition is without any merits.

In the result, the petition fails and it is hereby dismissed.


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