1. In this case we are asked to exercise our powers of revision and to set aside what is referred to as an order by the 3rd Class Magistrate of Cheyyur Taluq, holding that he has no jurisdiction to go on with a case and rejecting the petition from the accused, petitioners here, for discontinuance of the proceedings on a complaint pending against them. We are not clear what section of the Criminal Procedure Code authorized the passing of a formal order at the stage in question or that it was necessary or advisable that such an order should be passed. If the Magistrate proceeded without jurisdiction, that would be a ground for appeal, which could be dealt with by the appellate Court in case the proceedings ended in conviction. As however the matter is before us, we deal with it on the merits.
2. The case against the accused was instituted on a charge sheet alleging that they had committed offences punishable under Section 55 of the Abkari Act 1 of 1866. It is sufficient for our purpose that all the accused before the Court were arrested by Police after investigation by the police into the case. The charge sheet had been filed with reference to chapter 14 of the Criminal Procedure. Code. The ground, on which the Magistrate was asked to discontinue the proceedings, was that the police had no right to file a charge sheet or otherwise to proceed under chapter 14 of the Criminal Procedure Code in respect of an offence under the Abkari Act, because chapter 14 is controlled by Section 5(2) of the Criminal Procedure Code and this is an offence under a special law, which can be investigated and tried only according to the provisions of that law. We assume for the purpose of the present case that the offence defined in Section 55, Abkari Act, is a cognisable offence. We have been shown no authority directly in point. But we think that on general grounds, if Section 5(2) is to be given effect the decision must in the present proceedings be in favour of the petitioners. If the question were merely of a charge of an offence under a special act, made after an investigation carried on in the ordinary way and not differing in material particulars from the investigation, after which offences under the Penal Code are. charged, our conclusion might be different. But in fact under the Abkari Act the accused person has the right to a special procedure regulating the course of the investigation; and in the absence of any statement that this right has been respected by the police, we must hold that he has been obliged to forego it owing to the police holding the investigation instead of the Abkari Officers, who would, it is to be presumed, proceed in accordance with the Abkari Act.
3. The proceedings preliminary to the filing of a charge under the Abkari Act begin with the steps provided in Section 40 for securing the production of the suspected person before the Abkari Officer, who had jurisdiction to enquire into the case, by whomsoever the arrest has been made, whether by the Abkari Officer or Police Officer or any of the other persons specified in Section 31. From that point the Act contemplates that only the Abkari Department shall have the conduct of the proceedings and in the succeeding Sections 41 to 47 there is provision for a much more formal enquiry than any contemplated in Chapter 14, Criminal Procedure Code. There is no doubt no explicit statement, so far as we can see, in those sections that the accused is to be present at that enquiry or is entitled to cross-examine the witnesses or submit his contentions. But we are told that in fact the practice is to allow him to do so; and in any case these sections direct a much more elaborate enquiry than is provided for in the Criminal Procedure Code, giving much more definite powers to the Abkari Officer, who R--30 holds that enquiry, and in some sections, for instance Sections 42 and 43, making the intervention of an Officer of a certain status in the department obligatory. In these circumstances the submission of the charge sheet by the Police Officers instead of the Abkari Officers, presumably in accordance with the Police instaed of the Abkari procedure, has in our opinion placed a considerable disability on the accused, depriving them of the procedure, to which they would ordinarily be entitled.
4. That being so we cannot hold that the offence here has been investigated according to the provision of the Special Law, the Abkari Act. The case it seems to us is similar to Lakshminarasayya v. Narasimmachari (1913) M.W.N. 1000 although there is no distinct reference in the judgment to Section 5(2) Criminal Procedure Code. Taking this view we decide that the lower Court's order and the submission to it by the Police of the charge sheet offend against Section 5(2), which for the present purpose must be regarded as controlling Chapter 14. We must therefore set aside the lower Court's order on the ground that there are no proceedings properly instituted by means of any legal complaint or charge sheet before it. It will be for the Magistrate in communication with the Abkari Department to consider whether the proceedings can be revived on the latter presenting a proper charge sheet.