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The State of Gujarat Vs. Bhimji Manji and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. Nos. 263 to 275, 306, 307, 308 and 392 of 1965
Judge
Reported inAIR1968Guj23; 1968CriLJ156; (1968)0GLR201
ActsDefence of India Rules, 1962 - Rules 125 (9) and 152; Code of Criminal Procedure (CrPC) , 1868
AppellantThe State of Gujarat
RespondentBhimji Manji and ors.
Cases ReferredIn Emperor v. Jayantilal Jagjivan Muji
Excerpt:
criminal - cognizable offence - section 125 (9) of defence of india rules, 1962 - rule 125 (9) (a) is punishable section for contravention of any provision of rule or order made or direction given under rule 125 deal with cognizable offence - rule entitle police officer to arrest any offender or delinquent without warrant. - - however, they had raised a preliminary objection about the competency of the proceedings on the ground that the offence punishable under rule 125(9)(a) of the rules was a non-cognizable offence and further that the investigation had not been carried out under the order of the magistrate and therefore, the investigation was bad in law and the learned trying magistrates were not empowered to take cognizance of the said cases. the amendment appears to have been.....shah, j.1. this is a group of seventeen criminal revision applications in which two identical questions of some importance have been raised and they will conveniently be disposed of by a common judgment. the questions that fall for our consideration are: (i) whether an offence for contravention of any provision of rule 125 of the defence of india rules, 1962 and made punishable under clause (a) of sub rule (9) of rule 125 of the defence of india rules, 1962, hereinafter called 'the rules', is a cognizable offence or a non-cognizable one; and (ii) whether the court can take cognizance of any alleged contravention of the rules or of any order made under the rules on a police report submitted on an unauthorized investigation.(2) it appears that the opponents in the first-listed sixteen.....
Judgment:

Shah, J.

1. This is a group of seventeen criminal revision applications in which two identical questions of some importance have been raised and they will conveniently be disposed of by a common judgment. The questions that fall for our consideration are: (i) whether an offence for contravention of any provision of Rule 125 of the Defence of India Rules, 1962 and made punishable under clause (a) of sub rule (9) of Rule 125 of the Defence of India Rules, 1962, hereinafter called 'the Rules', is a cognizable offence or a non-cognizable one; and (ii) whether the Court can take cognizance of any alleged contravention of the Rules or of any order made under the Rules on a police report submitted on an unauthorized investigation.

(2) It appears that the opponents in the first-listed sixteen different revision applications were charge-sheeted in different criminal Courts of the District of Kutch for alleged contravention of a provision of Rule 125 or of an order made thereunder and punishable under Rule 125 (9) (a) of the Rules. The opponents, who were accused in the trial Courts, had pleaded not guilty to the charge. However, they had raised a preliminary objection about the competency of the proceedings on the ground that the offence punishable under Rule 125(9)(a) of the Rules was a non-cognizable offence and further that the investigation had not been carried out under the order of the Magistrate and therefore, the investigation was bad in law and the learned trying Magistrates were not empowered to take cognizance of the said cases. The learned trying Magistrates have accepted the preliminary objections raised on behalf of the accused in the different criminal cases. In some of the cases, the proceedings have been dropped and in some, the accused-opponents have been discharged. The State being aggrieved by these orders had preferred revision applications, in all the matters, in the Court of the learned Sessions Judge, Kutch, at Bhuj. The learned Sessions Judge has upheld the orders of the trial Courts on his taking the view that the offence punishable under Rule 125 (9) (a) of the Rules was a non-cognizable one. Accordingly, the learned Judge held that it was not necessary to make a reference to the High Court in the matters before him. Identical orders, which are under challenge, have been passed in the revision applications which have been place for hearing before us this day. In Criminal Revision Application No. 392 of 1965, which forms a part of the group of seventeen criminal revision applications, the original accused is the applicant. He has filed the application against the order of the learned trial Magistrate who has held that the offence was a cognizable one and that it was competent to the Magistrate to proceed with the enquiry.

(3) We will first dead with the first question raised, namely, whether an offence, for contravention of a provision of Rule 125 or of any order under the rule and made punishable under clause (a) of sub-rule (9) of Rule 125 of the Rules is a cognizable offence, as is contended by the learned Government Pleader, or is a non-cognizable offence, as is contended on behalf of the original accused persons. In order to appreciate this contention, we will first consider the relevant provisions of the Code of Criminal Procedure, 1898 (Act No. V of 1898), hereinafter referred to as 'the Code' Sub-section (2) of Section 1 of the Code extends the provisions of the Code to the whole of India except the State of Jammu and Kashmir, and the Union territory of Manipur and provides that, in the absence of any specific provision to the contrary, nothing contained therein shall affect any special or local law in free, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The Code has, therefore, to be looked to for procedural matters, unless there is some other provision made in a special Act or law that might be existing at the date or that may be enacted thereafter. The Code contains its own dictionary in Section 4. Clause (f) of sub-section (1) of Section 4 of the Code defines 'cognizable offence' as meaning an offence for, and 'cognizable case' as meaning a case in which a police officer, within or without the presidency towns , may, in accordance with the second schedule or under any law for the time being in force, arrest without warrant. Clause (n) of Section 4 (1) of the Code defines a 'non-cognizable offence' as meaning an offence for, and 'non-cognizable case' as meaning a case in which a police officer, within or without warrant. These definitions given in clauses (f) and (n) of sub-section (1) of Section 4 of the Code have a material bearing in deciding the main question in controversy as to whether the offence or offences in question are cognizable offences or non-cognizable ones. The test to decide whether an offence is a cognizable one or not, is whether a police officer can make arrest without a warrant. Clause (b) defines 'bailable offence' as meaning an offence shown as bailable in the second schedule, or which is made bailable by any other law for the time being in force; and 'non-bailable offence' as meaning any other offence. Section 5 (1) provides that all offences under the Indian Penal Code shall be investigated, enquired into and tried and otherwise dealt with according to the provisions contained in the Code. Sub-section (2) thereof makes a similar provisions in relation to all offences under any other law, but subject to any enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. Schedule II of the Code is a Tabular Statement of Offences in 8 columns. Column 3 thereof refers to the offences in which a police office may or shall not arrest without a warrant. Column 4 is under the caption 'Whether a warrant or summons shall ordinarily issue in the first instance.' Column 5 speaks of the nature of the offence being a bailable or not. Now, the offences for which the accused were sought to be tried were punishable under sub-rule (9) (a) of Rule 125 of the Rules. Schedule II provides for the relevant procedure to be followed in respect of offences under the Indian Penal Code, as also for offences against law other than the Indian Penal Code. With reference to offences against other laws, it provides that if the offence is one punishable with imprisonment for three years and upwards, the police officer may arrest without a warrant. If the offence is the one punishable with imprisonment for less than three years, the provision is that police office has no power to arrest without a warrant. The test, therefore, whether a police officer can arrest without a warrant or not, is the extent of the punishment which is provided for in the relevant law and for the relevant offence, other than the Indian Penal Code. Rule 125 (9) (a) is the punishing section with which we are here concerned. It provides that 'If any person contravenes any provision of this rule or any order made under this rule, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.' Thus, the substantive punishment which is provided for under Rule 125 (9) (a) is for an imprisonment which may extend to three years. Having regard to the aforesaid definition of the expression 'cognizable offence' as given in clause (f) of sub-section (1) of Section 4 of the Code, read with the Schedule II and the relevant entry, it will appear that a police office may, in case of contravention of any provision of Rule 125 or of any order thereunder, arrest the offender, without a warrant. The offence would thus be a cognizbale offence. It follows, therefore, that the offence is not a 'non-cognizable offence' as defined in clause (n) of sub-section (1) of Section 4 of the Code. Having regard to the punishment which is awardable under Rule 125(9)(a) of the Rules, the case would be a 'warrant-case' as defined in clause (w) of Section 4 (1) of the Code which defines 'warrant-case' as meaning a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding one year. Sub-section (2)of Section $ of the Code provides, as aforesaid, that offences against other law, which would include the offence punishable under Rule 125 (9) (a) of the Rules, shall be investigated, enquired into, tried and otherwise dealt with according to the provisions embodied in the Code. This is subject only to an enactment, if any, which regulates the manner or place of investigation, enquiry, trial or otherwise dealing with such offence. Thus, it appears that even when an investigation is to be made and an enquiry , trial or otherwise dealing with such offence. Thus, it appears that even when an investigation is to be made and an enquiry and a trial have to be held for offences against other laws, the Courts have to look to the provisions of the Code, unless it appears that any special enactment in force at the material time makes a special provision in the matter of dealing with such offences. We have thus to see whether the Rules, which are the statutory rules, enacted under the Defence of India Act, 1962, and have the force of law, contain any provision to deal with such offences otherwise than as provided under the Code.

(4) This will take us to a consideration of the relevant rules. The rules are made by the Central Government in exercise of its emergency powers conferred by Section 3 of the Defence of India Act (No. 51 of 1962). Rule 125 (9) (a) of the Rules, which is the material rule for our consideration, corresponds to Rule 81 (4) of the Defence of India Rules and under the Defence of India Act, 1939, with the only difference that the proviso to clause (a) of Rule 125 (9) of the Rules is not to be found in the 1939. Rule 125 (9) (a) of the Rules is the punishing rule for contravention of any provision of Rule 125 or of any order made under the rule. Rule 152 of the Rules, which corresponds to Rule 128 of the Defence f India Rules, 1939, deals with the general powers of any police officer to arrest without a warrant. It reads as under:

'152. General powers to arrest without warrant. - Any police officer may arrest without warrant any person who is reasonably suspected of having committed or of committing or of being about to commit a contravention of Rules 13, 19, 26, 31, 57, 64, 65, 66, 78, 80, 85, 88, 118, 121, 122, 129, 131, 134, 140, 141 or 112 or of any order or direction made or given under any of the said rules.'

It is only; in respect of the stated rules that a provisions is made for the arrest of the offenders without a warrant. The powers is given to any police officer. A close analysis or examination of the relevant rules referred to in Rule 152 will go to shown that save and except for rule 26 of the rules, all other rules referred to therein are punishable with imprisonment of less than three years. Rules 13, 19, 31, 57, 64, 65, 66, 78, 80, 85, 118, 121, 122, 131, 134 and 141 are all rules which provide that the contravention of any order or direction made or given thereunder shall be punishable with imprisonment for a term which may extend to six months or with fine or with both. It appears from the scheme of the Rules that a sub-rule of each relevant rule confers a power upon the Government or the appropriate authority to make a particular order give a particular direction or injunction and another sub-rule of the same rule provides for the punishment. These rules, which have been examined by us, show that the contravention of the order, direction or injunction made or given under the said rules is made punishable for a lesser term of c and these offences appear relatively to be minor offences. Sub-rule (3) of rule 88 of the Rules makes the contravention of the order made under sub-rue (1) punishable with imprisonment which may extend to one year and also to a fine. Rules 129, 140 and 142 prescribe the maximum imprisonment awardable for the contravention of the relevant orders made under the rule as s two years' imprisonment. Sub-rule (2) of rule 26, which is one of the rules for which special provision is made in Rule 152, provides that the contravention of any order made under sub-rule(1) shall be punishable with imprisonment for a term which may extend to five years of fine or with both. Rule 26 is the only rule the contravention whereof is made punishable for a higher term of imprisonment. It will thus appear that all the rules mentioned in Rule 152 except R. 26 have relation relatively to minor offences. The said offences fall within the category of non-cognizable offences as defined in clause (n) of sub-section (1) of Section 4a of the Code read with the relevant entry in Schedule II thereof. The part of Schedule Ii of the Code which has relation to offences against other laws provides that if the offence is punishable with imprisonment for one year and upwards, but less than three years the police shall not arrest without a warrant. The rules referred to in rule 152 except rule 26 thus relate to non-cognizable offences. An examination of some other rules contained in the Rules will reveal that contravention on of orders made under rules 6, 8, 10, 13, 16, 21 and 22 will constitute with imprisonment for a term which may extend to three years or with fine or with both. These are not the rules for which any provision is made in rule 152. Rules 14, 15, 25, 28, 33, 38 and 39 make provision for punishment of contravention of the sub-rule embodied in the said rules. The punishment provided for the contravention of any order made under the relevant sub-rule is imprisonment which may extend to five years or with fine or with both. Then are the rules 9, 11 and 32 which provide for more serious offences and the punishment provided is imprisonment for a term which may extend to seven years. Rule 152 which confers general powers on a police officer to arrest, without warrant, persons contravening the stated rules or any order or direction made or given under the said rules does not include these rules which provide for higher punishment. It will thus appear that rule 152 has been enacted for a special purpose, viz., to invest police officers with powers to arrest without a warrant any person who is reasonably suspected of having committed or of committing or of being about to commit a contravention of the rues specifically mentioned therein, which appear to provide for relatively minor offences, punishable with an imprisonment for less than three years and this appears to be with a view to clothe police officers with larger powers to meet emergent conditions. Thus, it cannot be said that Rule 152 is exhaustive of the powers of police officers to arrest persons without warrant in respect of all offences considered as congnizable offences as defined in the Code to say so would mean that major offences under the various rules aforesaid the contravention whereof is made punishable with higher terms of imprisonment under the rules, will have to be treated as non-congnizable offences and minor ones as cognizable offences. This would create anomalous position. In our view, such could not have been the legislative intent.

(5) However, we will further examine the contention of the learned defence advocates that inclusion of Rules 26 in Rule 152 of the Rules shows that the rules provide a complete machinery for the purpose. To appreciate this contention, we may here first set out Rule 26.

It reads as under:-

'26. Entering India -(1) The Central Government may, be notified order, make provision for securing that a, subject to such exemptions as may be provided for in the order, any person shall not, on coming from a place outside India, enter India elsewhere that an at such place as may be specified in the order.

(2) If any person enters India in contravention of any order made under sub-rule (1) or of the provisions of, or of any rule or order made under, the Indian Passport Act, 1920 (34 of 1920) he shall, without prejudice to any other proceedings which may be taken against him, be punishable with imprisonment for a term which may extend to five years, or with fine, or with both.

(3) The master of any vessel or the pilot of any aircraft by means of which any person enters India in contravention of any order made under sub-rule (1), or of the provisions of , or of any rule or order made under, the Indian Passport Act, 1920 (34 of 1920), shall, unless he proves that he exercised all due diligence to prevent the said contravention be deemed to have abetted the contravention.'

Thus, it will appear that sub-rule (2) of Rules 26 deals with contravention of any order made under sub-rule (1).. it also provides punishment for contravention of any relevant rule or order made under the Indian Passport Act, 1920. The punishment provided under sub-rule (2) is without prejudice to any other proceedings which maybe taken against the offender. Sub-rule (1) confers on the central Government powers of restriction the place of entry of any person or class of persons coming in India from a place outside India. It appears that Rule 26 is enacted for restricting movements and activities of persons coming from a place outside India and entering India. It must be remembered that the Defence of India Act (Act No. 51 of 1962) has been enacted as a special measure to ensure the public safety and interest, the defence of India and for the trial of certain offences and for matters connected therewith. The rules under the Act have been made to carry out the same object. Rule 152 was amended by the Defence of India (Second Amendment) Rules, 1962 and Rule 26 was thereby included in the rules mentioned therein and for the purpose, any police officer is given general powers to arrest without a warrant. The amendment appears to have been introduced as an emergent measure with the specific object of speedily and effectively enforcing obedience to a rule or order made under Rule 26 (1) of the rules, as also under the Indian Passport Act, 1920 (Act No. 34 of 1920)and for punishing its contravention. Section 4 of the Indian Passport Act provides for arrest without a warrant of a person who has contravened or against whom a reasonable suspicion exists that he has contravened any rule or order made under Section 3 of the said Act, which confers powers upon the central Government to make rules, inter alia, requiring that persons entering India shall be in possession of passports and or all matters ancillary or incidental to that purpose. However, the powers for arrest without warrant under the Indian Passport Act are conferred only on officers of police, not below the rank of a Sub-Inspector . section 4 of the Passport Act has thus a limited ambit. It appears to us that it was as a speedy and effective measure in an emergent condition that the Legislature has included Rule 26 as one of the rules n relation to which any police officer has general powers to arrest without warrant as provided in Rule 152 of the Rules. Again, from the mere inclusion of one solitary rule relating to an offence of a congnizable nature in the Rule 152 of the Rules, we cannot infer that what are otherwise congnizable offences under the Code have to be treated as non-cognizable ones.

(6) Thus, having regard to the scheme of the Rules, and the relevant rules thereunder, and having also regard to the relevant provisions of the Code and the relevant entries in the Second Schedule of the Code, n our view, it cannot be said that Rule 152 provides a complete Code and is exhaustive of the powers of police officers in relation to all offences punishable under the rules and for contravention whereof a police officer has powers to arrest without a warrant. In our view, the general power to arrest without a warrant conferred upon al the police officers and not be found in Rule 152 is not exhaustive of the powers of police officers in relation to al other offences not mentioned in the said rule. The enactment of Rule 152 and the second amendment to the rule in 1962, by which Rule 26 has been inserted in rule 152 cannot, therefore, be said to restrict the powers of police officers to the offences specifically referred to therein, in order, therefore, to find out the powers of police officers to the qua other offences, we must necessarily fall back upon the relevant procedure provided for in the Code. As aforesaid, Section 4 (1) (f) of the Code read with the relevant entries in Schedule Ii of the Code have to be restored to for the purpose. In our view, therefore, Rule 125 (9) (a) of the Rules, which is a punishing section for the contravention of any provision of the rule or order made or direction given under Rule 125 of the Rules, deals with cognizable offences. This will entitle any police officer to arrest the offender or delinquent, without a warrant.

(7) We are fortified in our view by the observations of Kuppuswami Ayyar, J., In re Labhai, AIR 1946 Mad 7. The learned Judge had, in that case, an occasion to consider Rule 128 of the Defence of India Rules, 1939, which as aforesaid corresponds to Rule 152 of the Rules. While repelling the argument that Rule 128 was exhaustive, the learned Judge has observed as under:-

'It is also argued for the petitioners that under R. 128, Defence of India Rules, only certain offences are picked out in respect of which it is stated that a police officer may arrest without a warrant. That rule had to be made because all those offences in respect of which that rule was made were non-cognizable offences in respect of which the offender cannot be arrested by the police without a warrant. If cannot be taken, therefore, as exhaustive of all offences punishable under the Defence of India Rules in respect of which a police officer may arrest without a warrant.'

In Dost Mohammad v. Emperor, AIR 1945 Lah 334, Munir, J., of the Lahore High Court had an occasion to consider the nature of the offence falling under Rule 81 (4) of the defence of India Rules, 1939, which, it may be remembered, corresponds to Rule 125 (9) (a) of the Rules. It was contended before the learned Judge that a police officer can arrest without warrant only those persons who were suspected of committing offences against rules that were specifically mentioned in Rule 128, and that since Rule 81, which it maybe stated gave the powers to the central Government or the Provincial Government in relation to general control of industry, etc., and substantially corresponds to Rule 125 of the Rules, was not specifically mentioned in Rule 128, an offence under the former rule was not cognizable.

Repelling this argument, the learned Judge has made the following observations:-

'This argument ignores the provisions of Schedule 2, Criminal Procedure Code, according to which offences against other laws if punishable with imprisonment for three years bailable. The offences under the rules specifically mentioned in R. 128, Defence of India Rules, are all punishable with less than three years' imprisonment and the combined effect of the provisions of Schedule 2, Criminal Procedure Code, and R. 128, Defence of India Rules, is that besides the offences against other laws which are punishable with three years' imprisonment are also cognizable, I, therefore, hold that the offence in question was both congnizable and non-bailable and since it was committed in the view of Dost Mohammad, he was under S. 59, Criminal P.C., competent to arrest the petitioners without any warrant'.

A single Judge of this Court had also an occasion to consider a similar question in unreported Criminal References Nos. 17, 18 and 19 of 1965, decided on 7-2-1966 (Guj). The references arose out of certain prosecutions which were launched in the Court of the Judicial Magistrate, First Class, at Mandvi. The learned Judicial Magistrate had taken cognizance of the offence punishable under Rule 125(9) of the Defence of India, Rules. The learned sessions Judge of Kutch had made a reference to the High Court saying that the offence was a non-cognizable offence and no cognizance should be taken by the Magistrate upon a police report. While dealing with these references, Mr. Justice Raju has made the following relevant observations:-

'In addition, however, I might say that the present offence is a cognizable offence because as stated in Schedule II to the Criminal Procedure Code , the police can arrest the accused without a warrant for any offence punishable with imprisonment for more than three years, and the offence under Rule 125(9) of the defence of India Rules is punishable with three years' R.I . and, therefore, that offence is a cognizable one'.

The learned judge has further considered the ambit and scope of rule 152 of the Rules and, in this connection, he has observed that it was true that Rule 152 of the Defence of India rules enumerated certain offences against the Defence of India Rules, in which the police can arrest the offender without a warrant. The learned Judge has then observed as under:-

'As originally stood, the object of Rule 152 of the Defence of India Rules was to enlarge the area of offences in which the police could arrest the offender without a warrant. In the case of certain rules also, the police can arrest the offender without a warrant under the Criminal Procedure Code , the magistrate can take cognizance of the offence. As originally stood in Rule 152 of the Defence of India Rules , the offences enumerated are punishable with less than three years' Imprisonment. But, it appears that in 1962 an amendment was made by adding Rule 26 of the Defence of India Rules . We are not now concerned with the scope of the amendment or the object of the amendment. That amendment does not change the original intention of the original rule. It is, therefore, clear to my mind that the offence under Rule 125(9) of the Defence of India Rules is a cognizable one under the Criminal Procedure Code and there is nothing in Rule 152 which is inconsistent with that position.'

We are in respectful agreement with these observations.

(8) Mr. R.C. Mankad has relied upon the following observations of the Patna High Court in Saligram Singh v. Emperor, AIR 1945 Pat 69:-

'Statutory rules if validly made within the powers conferred by the Act must be regarded as part of the Act itself and made with the full authority of the Legislature. The rules must be held to be a part of the parent Act, and can do anything it can do if within its scope. Having regard to s. 3, Defence of India Act, any provisions of the Criminal Procedure Code inconsistent with anything in the Act or Rules must, therefore, be regard as repealed.'

We may say that Section 3 of the Defence of India Act, 1939, refereed to made a special provision for the effect of Rules, etc., inconsistent with other enactments and corresponds to Section 43 of our Act. In the Patna case, the learned Judges were dealing with the question of grant of bail to the accused in appeal against their conviction under the Defence of India Rules. The view that was being canvassed before the learned Judges was that Rule 130A of the Defence of India Rules, 1939, which corresponds to our Rule 155, relating to special provision regarding bail, was ultra vires and inoperative. It was contended therein that a rue such as Rule 130-A which repeals by implication certain provisions of the Code of criminal Procedure and divests the High Court of its powers and invalid, because this could de done only by the Legislature itself under Section 292 and 293, and not by rules framed under statutory authority. The aforesaid observations were made in answer to this contention. This decision is relied upon as an authority for the proposition that if the rules made under the special enactment, viz., the Defence of India Act, make a provision which is inconsistent with the corresponding provisions contained in the Criminal Procedure Code , the former shall prevail and the latter shall be deemed to have been repealed by implication. We have earlier considered the irrelevant provisions of the Code, the scheme of the Rules, as also the relevant rules. Mr. Mankad has not been able to rely upon any specific provision made in the Act or in the Rules which can be said to prescribe a procedure inconsistent with the relevant proviso contained in the Code. In our view, therefore, in absence of any corresponding specific provision to the contrary or any special form of procedure prescribed under the Defence of India Act, 1962, or under the Rules made thereunder, there can be no question of repeal by implication. The observations aforesaid relied upon by Mr. Rule 152. C. Mankad cannot, therefore, further his contention.

(9) Mr. Rule 152. C. Manad then relied upon a decision of the Orissa High Court in Babulal Agarwalla v. Province of Orissa : AIR1954Ori225 . The relevant observations relied upon are that 'Rule 125 of the Defence of India Rules specified the various offences under those Rules which are of a cognizable nature. Rule 81 is not specified in the Rules and consequently it is clear that an offence under Rule 81 (4) is an non-cognizable offence. . . . ' there does not appear to be any discussion of the point is question. Which respect, we may say that the relevant provisions of the Code do not appear to have been placed for consideration before the Orissa High Court. The statement of law thus made is not acceptable to us in the aforesaid view of the matter that we are taking.

(10) Thus, on a consideration of the relevant sections of the Defence of India Act the scheme of the Rules and the relevant rules thereunder, as also of the relevant provision s of the Code, in our opinion, Rule 125 (9) (a) which is punishing rule for contravention of any provision of the rule or any offer made thereunder, deals with cognizable offences and a police officer has powers to arrest the offender without a warrant. In this view of the matter that we are taking, we must reject the contention raised on behalf of the opponents-accused that Rule 152 is exhaustive of the powers of police officer to arrest without warrant and that the offence punishable under Rule 125 (() (a) is a non-cognizable offence. The second question formulated for our consideration, therefore, does not survive:-

(11) However, we would proceed to consider the question as the learned advocate have addressed us on this question as well. In this connection, it was contended by Mr. Sheth, appearing for the opponents in some of the revision applications, that Rule 154 of the Rules was a special enactment and, therefore, it has to be read as a proviso of section 190 of the Code. In the submission of Mr. Sheth, a Magistrate can take cognizable of an offence punishable under Rule 125 (9) (a) of the Rules only under the provision of Rule 154 (1) and that the three modes provided in Section 190 of the Code have no application in the matter. Now Rule 154 (1) which corresponds to Rule 130 (1) of the Defence of India Rules, 1939, reads as under:-

'No Court or Tribunal shall take cognizable of any alleged contravention of these Rules, or of any order made thereunder, except on a report in writing of the facts constituting such contravention, made by a public servant.'

It was contended that Rule 154 (1) contemplates the power of the Court to take cognizable only on a report in writing of a public servant it also requires that the writing must show the facts constituting such contravention . now, Section 190 (1) (b) of the Code substantially corresponds to Rule 154 (1) of the Rules and provides that any Presidency Magistrate and any Judicial Magistrate specially empowered in that behalf under Section 37 may take cognizance of any offence upon a report in writing of such facts made by any police officer. As aforesaid, in all the concerned cases before us, the police officer have submitted charge-sheets before the learned trying Magistrates and the learned Magistrates have taken cognizable upon such charge-sheets, which are reports within the meaning of the relevant expression in the Code. Mr. Rule 152. Mankad has, however, relied upon a decision of a single Judge of Calcutta High Court in A. P. Misra v. The State : AIR1958Cal612 , and contended that a charge-sheet submitted to the Court was not a report in writing as contemplated and that a Magistrate cannot take legal cognizable on such a charge-sheet. N the Calcutta case, the learned trying Magistrate had sent an explanation in this behalf to the High Court. However, the learned Magistrate did not mention therein that the was before him a report in writing on which he had taken cognizable. It was on the facts of that case that the Calcutta High Court had taken the view that there was a no legal cognizable taken and as such, the entire proceedings were without jurisdiction. The decision can have thus no application here, In Emperor v. Jayantilal Jagjivan Muji, : (1944)46BOMLR196 , a Division Bench of the High Court of Bombay has, while dealing with a similar question under Rule 130 of the Defence of India Rules, 1939, made the following material observations: 'Rule 130 (1) of the Defence of India Rules, 1939, requires a Court to take cognizable of a case only on a report in writing made by a public servant. Such report includes a charge-sheet sent up by a police officer, provided it sets out the facts constituting the contravention of the rule.'

It is thus clear that a charge-sheet containing the necessary facts constituting a contravention of any rule or of nay order made under a rule and forwarded to the competent Magistrate by a police officer would be a report in writing made by a public servant. We agriculturists in respectful agreement with the ratio of this Bombay decision. It gives a complete answer to the contention raised by Mr. Sheth in relation to the scope and ambit of rule 154 (1). As such, irrespective of whether the relevant offences punishable under Rule 125 (9) (a) of the Rules were cognizable or non-cognizable ones, the learned Magistrate were competent to take cognizable of the offenses on the charge-sheets that were submitted before them in the concerned cases and to proceed with the enquiry in the cases before him.

(12) The result is that the orders under revision in criminal Revision Applications Nos. 268 to 275 of 1965 and in Criminal Revision Applications Nos. 306, 307 and 308 of 1965 are set aside. The learned Magistrate are directed to proceed with the trial (further enquiry) in the criminal case before them and to decide them in accordance with law. Rules made absolute in these criminal revision applications.

(13) Rule issued a Criminal Revision Application No. 392 of 1965 is discharged.

(14) Rule discharged.


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