Skip to content


Superintendent and Remembrancer of Legal Affairs, West Bengal on Behalf of the State of West Bengal Vs. D. Surya Rao and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Case No. 1294 of 1968
Judge
Reported inAIR1969Cal594,1969CriLJ1480
ActsRailway Property (Unlawful Possession) Act, 1966 - Sections 3, 5 and 8; ;Code of Criminal Procedure (CrPC) , 1898 - Sections 173(4), 190(1), 251 and 251(4); ;Code of Civil Procedure (CPC) , 1908; ;Constitution of India - Article 141
AppellantSuperintendent and Remembrancer of Legal Affairs, West Bengal on Behalf of the State of West Bengal
RespondentD. Surya Rao and anr.
Advocates:Mukti Moitra, Adv.
Cases ReferredAshiq Miyan v. State of Madhya Pradesh
Excerpt:
- ordern.c. talukdar, j.1. this rule is at the instance of the superintendent and remembrancer of legal affairs, west bengal and is against an order dated the 11th september, 1968 passed by shri a.k. sen, magistrate. 1st class, midnapur (s) in case no. 164 (s) of 1968/t. r. 1929/68 under section 3(a) of the railway property (unlawful possession) act, 1966, allowing the prayer made on be half of the defence for granting copies of the documents and statements upon which the prosecution wanted to rely and rejecting the objection made on behalf of the prosecution in that behalf-2. the facts leading on to the rule can be put in a short compass. at about 23 hours on 8-5-68 a general diary was entered at the nimpura r. p. f. post station stating inter alia that at about 9-30 p. m. during the.....
Judgment:
ORDER

N.C. Talukdar, J.

1. This Rule is at the instance of the Superintendent and Remembrancer of Legal Affairs, West Bengal and is against an order dated the 11th September, 1968 passed by Shri A.K. Sen, Magistrate. 1st Class, Midnapur (S) in case No. 164 (S) of 1968/T. R. 1929/68 under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, allowing the prayer made on be half of the defence for granting copies of the documents and statements upon which the prosecution wanted to rely and rejecting the objection made on behalf of the prosecution in that behalf-

2. The facts leading on to the Rule can be put in a short compass. At about 23 hours on 8-5-68 a General Diary was entered at the Nimpura R. P. F. Post Station Stating inter alia that at about 9-30 p. m. during the course of their patrol duty, some members belonging to the Railway Protection Force, referred to in the said diary, noticed the two accused in the company of some others proceeding towards the Bombay Road through the maidan close to the Rakha Jungle and nearby the Marshall Yard. When challenged by the R. P. F staff, they took to their heels and after a hot chase, the R. P. F. personnel managed to arrest the two accused while the others filed away leaving several fishplates. The said persons who were arrested failed to account for the possession of the Railway properties recovered from them nor could they produce any authority for carrying the same. They gave their names as D. Surya Rao and Masala Kameswara Rao. The articles were seized and seizure-lists were drawn up on the same date. A report followed on the basis whereof the above-mentioned G. D. No. 262 dated the 8-5-68 was entered in the Nimpura R. P. F. Post Station. The O. C. of the Railway Protection Force, Nimpura thereafter made an investigation and recorded several statements on 8-5-68, 8-6-68 and 9-6-68- Ultimately he submitted a report on the 11th June, 1968 to the learned Sub-Divisional Magistrate, Midnapur (S) mentioning the above-mentioned facts and also that a case of theft of some fish-plates from the railway track near the Arora Gate at about 5-30 hours on 7-5-68 was already reported, being Bankura F. R. P. S. case No. 5 dated 8-5-68 under Section 379. I. P. C. and prayed for a production warrant being issued on the learned Sub-Divisional Magistrate (N) Bankura for producing the two accused, D. Surya Rao and Masala Kameswara Rao in connection with R. P. F. case No. 2 under Section 3(a) of the Railway Property (Unlawful Possession) Act. 1966. Onthe 31st July. 1969, the two accused persons were produced by the escort party and were taken in custody. The learned Sub-Divisional Magistrate (S), Midnapur thereafter by his order of the same date took cognisance upon the report referred to above and transferred the case to Shri A.K. Sen, Magistrate, 1st Class, Midnapur for disposal-On the same date, the learned transferee magistrate passed an order fixing 11-9-68 for the evidence of prosecution witnesses. On that dale 5 witnesses were present, when the defence made a prayer for the copies of the documents and statements on which the prosecution wanted to rely but the prosecution objected thereto on the ground that this was a non-cognizable offence and that the defence was not entitled to the same The learned Magistrate, however, was pleased by his order of the same date, to allow the prayer of the defence for copies and overruled the objection made on behalf of the prosecution, directing the latter to arrange for the delivery of such copies by the 9lh October, 1968. This order has been impugned and forms the subject-matter of the present Rule.

3. Mrs. Mukti Moitra, Advocate, appearing for the Superintendent and Remembrancer of Legal Affairs, West Bengal, on behalf of the Slate of West Bengal, had made a two-fold submission. The first contention of Mrs. Moitra is one of law and relates to procedure- She has contended that in view of the nature of the provisions of the Railway Properties (Unlawful Possession) Act, 1966 (Act 29 of 1966), cases instituted thereunder are not on a police report but on a complaint, attracting the provisions of section 252 and the following sections under Chapter XXI of the Code of Criminal Procedure and ruling out the necessity to furnish to the accused the copies of the documents and statements referred to under Section 173(4) of the Code. The steps of Mrs. Moitra's reasoning are that (a) the officer of the R. P. F. holding an enquiry under Section 8 of Act 29 of 1966 may exercise 'the same powers and shall be subject to the same provisions as the offi-cer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure. 1898 (5 of 1898) when investigating the cognizable case' but is nonetheless not a police officer properly so-called within the meaning of Section 190(1) (b) of the Code of Criminal Procedure; (b) the inquiry made by such an officer is not an investigation held under Chapter XIV of the Code of Criminal Procedure; and that he has no power to submit a charge-sheet under Section 173 Cr. P. C.; (c) a R- P. F. officer under Act 29 of 1966 will have to make a complaint under Section 190(1) (a) of the Code of Criminal Procedure if he wants the magistrate to take cognizance of the offence thereunder and (d) the provisions of Section 173(4) of the Code are not applicable to a case under the said Special Act, where-to the provisions of Section 252 and the following sections under Chapter XXI of the Code would apply. An ancillary submission was made by the learned Advocate referring to the language of the order dated the 31st July. 1969 passed by Shri A.K. Dutt, Sub-Divisional Magistrate (S), Midnapur, viz., that 'Seen the complaint of S. I. R. P. F., Nimpura. Cognizance taken'. In support of her contention. Mrs. Moitra also referred to several cases decided under different Special Acts as decisions pari materia and those will be considered in their proper context. The second contention of Mrs. Moitra centered round the maintainability of the impugned order itself dated the 11th September, 1908, in view of the findings arrived at therein by the learned magistrate himself. Mrs. Moitra submitted that the concept of liberal interpretation referred to therein has been wrongly introduced by the learned Magistrate for interpreting the provisions of a Special Act viz., of Section 8 of Act 29 of 1966, relating to procedure vitiating ultimately the resultant trial.

4. There is no appearance on behalf of the opposite parties, who are in jail, although notices appear to have been served on them in due course. The point involved being of some importance and also in the interests of justice, this court requested Mr. Prasun Chandra Ghosh, Advocate, to appear as amicus curiae and he was good enough to agree. Mr. Ghosh submitted in the first instance that the provisions of the Railway Property (Unlawful Possession) Act, 1966 are quite clear and cogent, enjoining that cases instituted thereunder are on a police report, attracting the provisions of Section 251A of the Code of Criminal Procedure and requiring the supply of copies of documents and statements to the accused as laid down under Section 173 (4) of the Code. In support of his contention Mr. Ghosh submitted in the first place that Section 8 of Act 29 of 1966 consists of two parts as embodied in the two sub-sections. The first sub-section lays down that an officer of the Railway Protection Force shall proceed to enquire into the charge against a person arrested by him for an offence punishable under the Act or is forwarded to him under Section 7 of the said Act. The provisions of Sub-section (2), however, along with those contained in proviso (a) make it clear that a report under Section 190(1) (b) of the Code of Criminal Procedure is enjoined thereby and not a complaint so that the court can take cognizance. The provisions under Section 5 of the Act laying down that offences under the Act shall not be cognizable do not alter the position because of the quantum of sentence provided for by way of penalty under Section 3 of the said Act. Mr. Ghosh next contended that in Act 29 of 1966, there is no provision for cognizance as contained in the Essential Commodities Act, X of 1955 or in 'he Official SecretsAct but on a proper interpretation of Sections 5 and 8(2) along with provisos (a) and (b) of the latter section of the Railway Property (Unlawful Possession) Act, 1966 the report referred to in the said Act is to be deemed to be one under Chapter XIV of the Code of Criminal Procedure and as such the cognizance taken is on a report by a police officer under Section 190(1) (b), entailing the procedure provided for under Section 251A of the Code of Criminal Procedure relating to cases instituted on a police report. In this connection Mr. Ghosh referred to Sections 5(2), 29 and the 2nd item of schedule II of the Code of Criminal Procedure and submitted that Section 5 of Act 29 of 1966 is to be interpreted against the background of the said provisions and that the same makes the offence under the Act cognizable. Mr. Ghosh further referred to the order dated the 11th June. 1968 wherein the expression 'report' has been mentioned clearly and categorically and naturally so because the same was sent by the officer-in-charge, R. P. F., Nimpura under Section 8(2). Mr. Ghosh submitted that the word 'complaint' used in the order dated the 31st July, 1969 has been loosely used and really meant a report as referred to in the order dated the 11th June, 1968 and in the Railway Property (Unlawful Possession) Act, 1966 itself. Mr. Ghosh also referred to several cases in support of the above-mentioned proposition and further distinguished the principles laid down in the cases cited by Mrs. Moitra. With regard to the second contention of Mrs. Moitra, Mr. Ghosh submitted that the question is not of any liberal interpretation but one of legal interpretation and that upon ultimate analysis, on an interpretation of the relevant provisions of the Special Act, the order passed by the learned magistrate for granting copies of the documents to the accused is sustain-able.

5. Having heard the learned Advocates appearing on behalf of the respective parties and on going through the materials on the record, I hold that there is a considerable force behind the submissions of Mrs. Moitra. The first point raised by Mrs. Moitra touching procedure, is an intriguing one and of some importance. Mrs. Moitra has contended that in view of the nature of the provisions of the Railway Property (Unlawful Possession) Act, 1906, cases instituted thereunder are not on a police report but on a complaint attracting the provisions of Section 252 onwards of the Code of Criminal Procedure and as such there is no obligation on the part of the prosecution to conform to the provisions of Section 173(4) of the said Code. In order to test the above-mentioned contention of Mrs. Moitra, I will in the first instance refer to the provisions of the Railway Property (Unlawful Possession) Act. 1966. Section 3 of the said Act lays down the penalty for unlawful possession of railway property and under Sub-section (a) imprisonment for a term which may extend to 5 years or a fine or with both is provided for in the case of a first offence and under Sub-section (b) for a second or the subsequent offences, the imprisonment provided for is for a term which may extend to 5 years and also with fine etc. It would appear therefore that in view of the nuantum of sentence the offence is cognizable. Section 5 of Act 29 of 1966 however lays down that notwithstanding anything contained in the Code of Criminal Procedure, an offence under this Act shall not be cognizable- Therefore specifically it is provided for that offences under the Act shall not be cognizable. The provisions of Section 8 would also be material and arc as follows:

'(1) When any person is arrested by an officer of the Force for an offence punishable under this Act or is forwarded to him under Section 7, he shall proceed to inquire into the charge against such person (2) For this purpose the officer of the Force may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898), when investigating a cognizable case; Provided that --(a) if the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate; (b) if it appears to the officer of the Force that there is not sufficient evidence or reasonable ground of suspicion against the accused person he shall release the accused person on his executing a bond, with or without sureties as the officer of the Force may direct to appear, if and when so required before the Magistrate having Jurisdiction, and shall make a full report of all the particulars of the case to his official superior-' Section 9 of the Act lays down that an officer of the R. P. F. shall have power to summon any person whose attendance he considers necessary for giving evidence and for producing documents, and Sub-section (4) enjoins that every such inquiry shall be deemed to be a 'judicial proceeding' within the meaning of Sections 193 and 288, I. P. C. It is to be seen that although Section 3 of the Railway Property (Unlawful Possession) Act 1966 lays down a quantum of sentence making the offence cognizable, the provisions of Section 5 of the said Act clearly and categorically enjoin that offences under the Act are not cognizable. This is a feature which cannot be overlooked in considering the later provision under Section 8 Sub-section (2) and the two provisos mentioned thereunder. Merely because anofficer of the R. P. F. holding an enquiry under the Act 'may exercise the same powers and shall he subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898), when investigating a cognizable case' the same would not convert him into 'a police officer properly so called' within the meaning of Section 190 (1)(b) of the Code and convert his report into a police report. The enquiry referred to in Section 8 of the Act is not tantamount to an investigation held under Chapter XIV of the Code and unless and until such an investigation is held, leading on to the submission of a charge-sheet, cognizance is not taken by the learned magistrate on a police report. Such an officer, under Act 29 of 1965, will have to make a complaint under Section 190(1)(a) of the Code if he wants the learned magistrate to take cognizance of an offence under the Act and consequently the case that is ultimately started is 'any other case' within the meaning of Section 251(b) under Chapter XXI of the Code of Criminal Procedure. Mr. Prasun Chandra Ghosh, Advocate, has relied on the provisions of Section. 3 of the Act and contended that in view of the quantum of sentence provided for thereunder by way of penalty, the offence is really a cognizable one. It is difficult for me to agree with the said proposition in view of the clear provisions of Section 5 of the said Act ruling out the same. Mr. Ghosh further contended that on a proper interpretation of Section 8(2) of Act 29 of 1966, along with the two provisos given thereunder, the report referred to therein is really one under Chapter XIV of the Code of Criminal Procedure as the result of investigation held thereunder and accordingly cognizance is ultimately taken on a report by a police officer under Section 190(1) (b) of the Code of Criminal Procedure. Mr. Ghosh has submitted that a proper interpretation of Section 5 of Act 29 of 1966, enjoining that offences under the said Act would not be cognizable, can only be made in the light of the provisions of Sections 5(2), 29 and the second item of Schedule II of the Code of Criminal Procedure. It is difficult for me to uphold the said contentions in view of the clear provisions of a special statute ruling out offences thereunder to be cognizable and the same cannot be deemed to be cognizable merely because of Section 3 of the said Act. I accordingly hold that the provisions of Section 173 (4) of the Code of Criminal Procedure will not be applicable to a case under Act 29 of 1966 making it necessary for the prosecution to supply copies of the statements and documents to the accused.

6, I will now pass on to the case law cited for the purpose of finding out whether the same lends assurance to the interpretation of the statute law as made above. Mrs. Moitra referred in the first instance tothe case, not yet reported, of Ramendra Singh v. Mohit Chowdhury, being Criminal Revn. No. 1018 of 1967 decided by Mr. Justice A. K. Das and Mr. Justice K. K. Mitra on 22-4-1969 (since reported in : AIR1969Cal535 ) wherein their Lordships held that 'A trial under the Official Secrets Act will proceed under the provisions of Section 252 of the Code of Criminal Procedure filing out thereby any necessity for serving copies of documents referred to under Section 173 of the Code of Criminal Procedure on the accused person.' Mr. Ghosh submitted that the facts in the above-mentioned case are distinguishable; that Section 13 of the Official Secrets Act uses the word 'complaint;' and that the decision of the Division Bench did not lay down any general principle but only one based upon the special provisions of that particular statute. A reference therefore to the relevant provisions of the Official Secrets Act is pertinent. Sub-section (3) to Section 13 reads as follows: 'No Court shall take cognizance of any offence under this Act unless upon complaint made by order of or under authority from, the Governor General in Council, the Local Government or some officer empowered by the Governor-General in Council in this behalf.' Sec-lion 14 of the said Act again provides for the exclusion of the public from the proceeding and it enjoined inter alia that '. . . If in the course of proceedings before a Court against any person for an offence under this Act, or the proceedings on appeal or in the course of the trial of a person under this Act, application is made by the prosecution, on the ground that the .... publication of any evidence to he given or of any statement to be made in the course of the proceedings would be prejudicial to the safety of the State, that all or any portion of the public shall be excluded during any part of the hearing, the Court may make an order to that effect . . '. Therefore, it would become abundantly clear that the provisions referred to above, invest the Court under the said Special Act with powers to hold trial in camera for reasons of State and under Section 5(2) of the Code of Criminal Procedure, it is the said procedure that shall prevail. Such a court accordingly takes cognizance of an offence under the said Act under Section 190(1)(a) and as a result, the procedure as laid down under Section 251(b) under Chapter XXI of the Code shall apply, ruling out the requirement to conform to Section 173(4) of the Code of Criminal Procedure. Their Lordships of the Division Bench accordingly observed in the said decision, not vet reported, (since reported in : AIR1969Cal535 ) in Criminal Revision Case No. 1018/67 that 'the Official Secrets Act provides for a special procedure of complaint and if it was upon a complaint by a person authorised under the Act, cognizance was takenunder Section 190(1) (a) and not under Section 190(1)(b). The procedure for trial would, therefore, be under Section 252 of the Code of Criminal Procedure and not under Section 251A'. I agree with the said observations but I hold that the decision in the above-mentioned case cited by Mrs Moitra does not constitute any precedent for determining the point involved in the present case which is against the backdrop of quite a different statute. The next case cited by Mrs. Moitra is a decision, not yet reported, viz. Superintendent and Remembrancer of Legal Affairs v. Sk. Rahamatulla, being Criminal Revn. Case No. 161 of 1969 decided by Mr. Justice R. N. Dutt and Mr. Justice A. P. Das on 20-6-1969 (Cal). The said case is one under the Opium Act and cognizance was taken by the learned Chief Presidency Magistrate, Calcutta, of offences under Sections 9(a) and 9(c) of the said Act on the prosecution report submitted by an Excise Officer. The point that arose for consideration is whether in such a case the accused is entitled to the copies of the documents etc. enjoined under Section 173 (4). After traversing several decisions under the Act and also under other Acts which are pan materia, their Lordships ultimately held that 'even now the decision of this court in Premchand Khetry's case that a prosecution report submitted by an Excise Officer under Section 20G of the Opium Act after investigation under the provisions of that Act is that it is not a police report within the meaning of Section 173(1) of the Code and in that view of the matter we hold that the procedure to be followed in the instant case is the procedure as laid down in Section 252 onwards of the Code; and the result is that the accused is not entitled to copies of the statements recorded during investigation'. Mr. Ghosh contended that the observations made in the above-mentioned case should not determine the ultimate procedure applicable in the present case which is under an altogether different Act containing different provisions. I agree with the submission made by Mr. Ghosh in this behalf and I hold that the decision in the case of Cri. Revn. Case No. 161 of 1969 D/- 20-6-1969 (Cal). which is against the background of a different Act containing different provisions, would not be applicable to the present case and as such the interpretation of Mrs. Moitra put forward in this behalf fails. Mrs. Moitra next referred to a recent Supreme Court case of Badaku Joti Svant v. State of Mysore, reported in : 1966CriLJ1353 . Mr. Justice Wanchoo (as His Lordship then was) considered the material provisions of Section 21 of the Central Excises and Salt Act. 1944 (Act 1 of 1944) and observed that 'All that Section 21 provides is that for the purpose of his enquiry, a Central Excise Officer shall have the powers of an officer-in-charge of a police station when investigating a cognizable case. But even so it appears thatthese powers do not include the power to submit a charge sheet under Section 173 of the Criminal Procedure Code for unlike the Bihar and Orissa Excise Act, the Central Excise Officer is not deemed to be an officer-in-charge of a police station'- His Lordship proceeded further to observe that 'A police officer for the purpose of Clause (b) above can in our opinion only be a police officer properly so called as the scheme of the Cr. P, C. shows and it seems therefore, that a Central Excise Officer will have to make a complaint under Clause (a) above if he wants the magistrate to lake cognizance of an offence for example under Sec. 9 of the Act.' Mrs. Moitra re lied on the above-mentioned observations and contended that the provisions of Section 21 of the Central Excises and Salt Act. 1944 being similar to those of Act 29 of 1966 the decision of the Supreme Court would be a clear pointer to the procedure that should apply in a proceeding under the Railway Property (Unlawful Possession Act, 1966, viz., one under Section 251A of the Code of Criminal Procedure. Mr. Ghosh however, submitted that the facts of the aforesaid case are quite distinguishable inasmuch as it is not only under a different Act viz., the Central Excises and Salt Act 1944 but the point for consideration also as involved therein is a different one as to whether the statement made by an accused to the Deputy Superintendent of Customs and Excise will be hit by Section 25 of the Evidence Act and become inadmissible in evidence and that the Supreme Court ultimately held that such a statement would not be hit by Section 25 of the Evidence Act and would be admissible in evidence unless the accused can take advantage of Section 24 of the Evidence Act. The said case therefore, according to Mr. Ghosh, is in a different context. Mr. Ghosh further contended that the earlier decision of the Supreme Court in the case of Pravin Chandra Mody v. State of Andhra Pradesh reported in : 1965CriLJ250 which supports his contention, docs not appear to have been filed and considered in the case of : 1966CriLJ1353 and that the findings as to whether a cognizance of an offence under the Central Excises and Salt Art. 1944 is under Section 190(1) (a), are in the nature of obiter dicta and as such arc not really binding for determining the present point at issue. I do not agree with the submissions of Mr. Ghosh. The said observations though made in a different context are relevant for interpreting the provisions of Act 29 of 1966 in ascertaining the correct procedure and are not in any way obiter dicta. As has been held by some High Courts viz. in the case of Ram Surat v. Ram Murat, reported in. : AIR1955All543 and in the case of Kai Khusroo v. State of Bombay reported in : AIR1955Bom220 (FB the obiter dicta of the Supreme Court constitute 'law' within the meaningof Article 141 of the Constitution of India. But even if it were otherwise, according to the ordinary rules relating to precedents, the obiter dicta of the Supreme Tribunal are entitled to considerable weight. A reference in this context may be made to the case of The Commissioner of Income-tax. Hyderabad, Deccan v. Vazir Sultan and Sons, reported in : [1959]36ITR175(SC) . On a reference to the Central Excises and Salt Act, 1944, I find that the provisions of Section 21 of the said Act are almost similar to those of Section 8 of Act 29 of 1966. There is in addition a clear and specific provision in Act 29 of 1966 viz., Section 5 whereby offences under the said Act have not been made cognizable. The fiction arising out of Section 3 of the said Act cannot do duty for a specific provision enjoining that offences under Act 29 of 1966 shall not be cognizable. The decision of the Supreme Court in Badaku Joti Svant's case. : 1966CriLJ1353 therefore supports Mrs. Moitra's contention that the procedure that should ultimately obtain in a case under Act 29 of 1966, which is a similar Act, will be one under Section 252 onwards of the Code of Criminal Procedure, being not instituted on a police report within the meaning of Section 251-A under chapter XXI of the Code.

7. Mr. Prasun Chandra Ghosh, Advocate, also referred to several cases in support of his interpretation. He referred in the first instance to the case of Malay Banerjee v. State, reported in : AIR1967Cal352 The proceeding was under Section 7(1)(a)(ii)/10 of the Essential Commodities Act and the learned trying magistrate directed the trial to proceed in accordance with the provisions of Section 251-A of the Code of Criminal Procedure, relying on a decision of the Calcutta High Court in the case of Nanakrai Pandit v. State, reported in 1961 (1) Cri LJ 644 (Cal) as also an unreported decision of the said High Court in the case of Ramaprosad Gupta v. State of West Bengal, decided by Mr. Justice S.K. Sen and Mr. Justice Amaresh Roy on the 31st May, 1962 (Cal). Mr. Justice T.P. Mukherjee delivering the judgment in Malay Banerjee's case : AIR1967Cal352 observed at page 354 that 'The present case was started for an offence constituted by contravention of Clauses 4 and 5 of the Iron and Steel Control Order, 1956 and the offences thus are covered by Section 7(1)(a)(ii) of the Essential Commodities Act and would attract imprisonment for a term which may extend to 3 years, thereby making them cognizable offences. If so, they would be liable to be investigated under Chapter XIV of the Criminal Procedure Code and the report that is submitted as result of that investigation would be a 'police report within the meaning of Section 173 of the Code and there would be no difficulty in holding that the procedure prescribed in Section 251A of the Code would apply in the trial of the offencesconcerned'. Mr. Justice Mukherjee further considered the Supreme Court decision in the case of : 1965CriLJ250 and observed that the said case 'will serve as the authority for a finding that the procedure prescribed in Section 251A of the Code will be attracted to the trial of cases cognizance whereof is taken under Section 190 (1) (b) of the Code on the report of a police officer submitted under Section 11 of the Essential Commodities Act.' Mr. Ghosh then referred to the case of Supdt & Remembrancer of Legal Affairs, West Bengal v. Vimla Dassi, reported in : AIR1968Cal540 wherein Mr. Justice T. P. Mukherjee held that even when cognizance is taken on the basis of a complaint under Section 190, in a case which has been preceded by an investigation under Chapter XIV but wherein no report under Section 173 of the Code of Criminal Procedure was filed the accused is entitled to the benefit of Section 173 (4) of the Code, in the shape of copies of documents referred to in the section being made available to him. The facts of the said case are distinguishable because the investigation that had taken place there was by the police and accordingly Mr. Justice Mukherjee held that the police officer without submitting a report under Section 173 of the Code, makes over the materials collected by him to some other authority or person to enable that authority or person to file a complaint that may be done if only the law permits. The law may permit the filing of a complaint by another authority or person in the case, but law would not permit remissness on the part of the police officer in the matter of submitting his report under Section 173 (1) of the Code. That is a mandatory duty of the police officer concerned. Even if the police officer does not do his duty, that would not take away the right of the accused to get copies'. It is therefore abundantly clear that the facts are entirely different and that in the above-mentioned decision the case was investigated by the police unlike the instant case. Mr. Ghosh next relied on a Division Bench decision of this Court, not yet reported, viz.. Sahu Jain Ltd., Calcutta v. The State in Cri. Rev. Case No. 401/67 with Cri. Rev. Case No. 680/64 decided by Mr. Justice R.N. Dutt and Mr. Justice A. P. Das on the 30th April. 1969 (Cal). The said decision is also under the Essential Commodities Act, 1955 and in course of the same, their Lordships referred to the observations of the Supreme Court in the case of Pravin Chandra Mody. : 1965CriLJ250 and ultimately came to the conclusion that a prosecution report submitted under Section 11 of the Essential Commodities Act 10 of 1955 is in law a police report under Section 173 (1) of the Code and as such the procedure laid down in Section 251A of the Code of Criminal Procedure will have to be followed in the case. Mrs. Moitra contended that the observations in the above mentioned cases are madein the context of a different Act, the provisions whereof are not similar to those of Act 29 of 1966 and as such the same would not apply to the facts of the present case. Mrs, Moitra in this context further contended that in Act 29 of 1966 there is no provision like Section 11 of Act 10 of 1955 relating to the cognizance of offences and that unlike Section 5 of Act 29 of 1966, there is no specific provision in the Essential Commodities Act, 1955 enjoining that offences under the said Act are not to be cognizable. For a proper determination of the submissions of Mr. Ghosh and the objection made thereto by Mrs. Moitra on the basis of the above-mentioned three cases, I will now proceed to consider the principles laid down in the case of : 1965CriLJ250 . Mr. Ghosh relied on the observations made therein by Mr. Justice Hidayatullah (as his Lordship then was), who in delivering the judgment of the Court, doubted the principles laid down by the Calcutta High Court in the case of Prem Chand Khetry v. The State, reported in : AIR1958Cal213 and ultimately held that 'In our opinion, the position is clear that such reports, if they are regarded as made under Section 190(1)(b), must attract the provisions of Section 251-A of the Code, because if the fiction is given full effect they cannot be regarded as falling within complaint under Section 190(1)(a) or Section 190(1) (c).' Mrs. Moitra submitted that the observations made by the Supreme Court in the abovementioned case do not apply to the facts of the present case, enjoining in any way a procedure under Section 251A of the Code of Criminal Procedure; that this point relating to the procedure applicable, was not directly involved in Pravin Chandra Mody's case. : 1965CriLJ250 and that the observations made in that context by their Lordships of the Supreme Court should not be a pointer to the ultimate decision in the instant case. I have given the matter my anxious consideration and I hold that the observations made in the abovementioned case are not ultimately applicable to the facts of this case. Though their Lordships of the Supreme Court have doubted the reasoning of the Division Bench in the Calcutta High Court relating to the creation of a fiction by the section whereby the report of an Excise or a Custom Officer was to be regarded as the report of the police officer but only for the purpose of Section 190(1)(b) of the Code of Criminal Procedure, not making the report a charge-sheet under Section 173 of the Code and not attracting the provisions of Section 251A of the Code inasmuch as it contemplated only a report under Section 173 of the said Code, it cannot be overlooked that the abovementioned point of procedure was not directly or categorically involved in the case of : 1965CriLJ250 wherein the Supreme Court in fact held that where the information discloses a cognizable as well as a non-cognizable offence, the police officer is notdebarred from investigating any non-cognizable offence which may arise out of the same facts and that the police officer would be competent to include the offence under Section 7 of Act 10 of 1955 though non-cognizable, in the charge-sheet under Section 173 of the Code with respect to a cognizable offence under Section 420 of the Penal Code and the trial for the said offence would proceed under Section 251A of the Code of Criminal Procedure. The point involved therefore in the case of Pravin Chandra Mody, : 1965CriLJ250 wherein the Supreme Court incidentally questioned the soundness of the ratio decidendi in Prem Chand Khetry's case, : AIR1958Cal213 is different and I accordingly hold that the observations made by their Lordships of the Supreme Court in the case reported in : 1965CriLJ250 having been made against the backdrop of a different Act, containing provisions not similar to the Act under consideration, in the instant case and not containing similar provisions relating to cognizance as also a specific provision like Section 5 of Act 29 of 1966, will not apply to the facts of the present case. Mr. Prasun Chandra Ghosh, Advocate, also referred to the case of Raghubans Duhey v. Slate of Bihar, reported in : 1967CriLJ1081 wherein Mr. Justice S.M. Sikri delivered the judgment of the Court. The facts of the said case arc, however, entirely different. The cognizance taken therein was under Sections 149/ 302/201 of I. P. C. and the main point for consideration was as to what was meant by the expression 'taking cognizance of'. In the said case, it appears that investigation was made by the police officer and a charge-sheet was submitted under Section 173(1) of the Code and therefore the circumstances being not similar, the said case does not constitute any precedent to determine the procedure to be followed when an enquiry is made by an officer of the Railway Protection Force under Section 8 of Act 29 of 1966. Mr. Ghosh finally referred to the case of Ashiq Miyan v. State of Madhya Pradesh, reported in : 1969CriLJ239 wherein Mr. Justice Vaidialingam delivering the judgment of the court held that there was no illegality in a trial held by the magistrate under Section 251A of the Code of Criminal Procedure when an offence was investigated in accordance with the provisions of the Opium Act by the police Sub-Inspector and a report was submitted by him under Section 20G of the said Act. Their Lordships, however, made it quite clear that 'It is not really necessary for us to consider the large question, as to whether, when an Excise Officer makes a report under Section 20G of the Act, whether the trial, following it, in such a case, would be governed by Section 251A'. The said decision therefore does not support the submission put forward by Mr. Ghosh. On a consideration therefore of the case law on the point cited by the learned Advocates. I holdthat in view of the nature of the provisions of the Railway Property (Unlawful Possession) Act, 1960 cases instituted thereunder are not on a police report but on a complaint, attracting the provisions of Section 252 onwards of the Code of Criminal Procedure making it ultimately unnecessary on the part of the prosecution to conform to the provisions of Section 173(4) of the said Code and serve copies of documents and statements as enjoined therein upon the accused. Accordingly, the first point raised by Mrs. Moittra succeeds.8. The second point raised by Mrs. Moitra, is also quite tenable. The learned trying magistrate was clearly wrong in introducing the concept of a liberal interpretation for the purpose of explaining the provisions of a special statute vis-a-vis the mandatory provisions of the Code of Criminal Procedure. Mr. Ghosh has aptly submitted that the question is not of a liberal interpretation but of a legal interpretation and I may add that it is also of a proper interpretation. On an interpretation of the relevant provisions of the special Act and on a consideration of the case law on the point. I have already held that the cases instituted thereunder are not on a police report but on a complaint, attracting thereby the provisions of Section 252 onwards of the Code of Criminal Procedure. Procedure is the handmaiden of law and the two are so interrelated that the one cannot be separated from the other and any deviation from the procedure laid down by law on a purported liberal interpretation is not only unwarranted and untenable but is also illegal and is fraught with undoubted prejudice being caused to one of the parties to the proceedings, vitiating the ultimate trial. Justice, after all, is in accordance with law. I accordingly find that the concept of liberal interpretation has been wrongly introduced by the learned magistrate for interpreting the provisions of the special Act viz., Act 29 of 1966 and I uphold the contention made in this behalf by Mrs. Moitra.

9. Before I part with the case. I must place on record my appreciation of the assistance rendered to this Court by Mr. Prasun Chandra Ghosh, Advocate as amicus curiae. Mr. Ghosh has spared no pains in placing the possible views bearing on the points for consideration, and he has been of considerable help to this Court in coming to its decision.

10. In the result, I make the Rule absolute; set aside the impugned order dated the 1lth September, 1968, passed by Shri A.K. Sen, Magistrate, 1st Class, Midnapur (S) in case No. U.R.164 (S) of 1968/T. R. 1929/68 allowing the prayer made on behalf of the defence for granting copies of the papers upon which the prosecution wanted to rely and rejecting the objection made on behalf of the prosecution; and I direct that the case shall go back to the court below for beingtried under the provisions of Section 252onwards of the Code of Criminal Procedure.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //