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Ram Gopal Kedia and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1977CriLJ1048
AppellantRam Gopal Kedia and anr.
RespondentThe State
Cases ReferredBhagwati Saran v. State of U.P.
Excerpt:
- .....by the code of criminal procedure for trial of, warrant cases instituted otherwise than on a police report wholly inconsistent with section 251 of the code of criminal procedure, 1893, and the provisions of anti-corruption laws amendment act xl of 1964. it is thus claimed that section 5(1) of the west bengal criminal law amendment (special courts) act, 1949 - under which the trial is to proceed before the special court - being repugnant to the code of criminal procedure and the other central act referred to hereinbefore must be held to be void, and as such, the trial as initiated is not sustainable in law.6. the only point thus raised in this application is, however, no longer res integra so far as this court is concerned. in a bench decision of this court in f.m.a. no. 173 of 1976.....
Judgment:

Anil k. Sen, J.

1. A Deputy Superintendent of Police, Special police Establishment, Fraud Squad No. I Branch, New Delhi, filed before the 4th Additional Special Court, Calcutta, a report in writing alleging commission of different offences under Section 120-B Indian Penal Code read with Section 5(2) of the Prevention of Corruption Act, Section 5(2) of the said Act read with Section 109 of the Indian Penal Code and under Section 467/471 Indian Penal Code and 477-A Indian Penal Code against 6 persons of whom two were public servants. Facts as incorporated in the said report may shortly be stated. It is alleged that the Food Corporation of India, New Delhi, entered into an agreement with Messrs. Bihar Traders to sell Punjab maize at a price agreed and on terms set out in the agreement. One of the important terms was that the maize would be released to Messrs. Bihar Traders only on receipt of full payment of the price for the consignment. It is further alleged that two of the accused persons, namely, A.K. Banerji and S.K. Shome who were the public servants were entrusted with the duty of realisation of full payment before release of the consignment in favour of the Bihar Traders but they in conspiracy with others including those of Bejay Kumar Kedia and Earn Gopal Kedia of Bihar Traders by corrupt or illegal means or by abusing their position as public servants dishonestly and fraudulently caused to deliver consignments of such maize to Messrs. Bihar Traders without, however, realising the price thereof causing a pecuniary loss to the extent of Rupees 30,15,974.65 to the Food Corporation and equal amount of gain to Messrs. Bihar Traders. it is further alleged that that in causing such delivery to be made they got false documents, such as, release or delivery orders to be made in favour of fictitious firing and also fabricated various documents, registers and statements.

2. Such a report having been submitted before the Learned Judge, 4th Special Court, Calcutta, he perused the report carefully and in consideration of the facts and particulars incorporated therein concluded that sufficient grounds for taking cognizance of the offences alleged, have been made out. The Learned Judge accordingly, by the order dated January 13, 1972, took cognizance but withheld issue of processes in view of certain pending writ petitions in this Court arising out of the investigation of such offences.

3. Obviously on the failure of those writ petitions processes were issued on December 17, 1974, and one of the accused persons appeared on January 14, 1975.

4. Two petitioners now before us. Ram Gopal Kedia and Bejoy Kumar Kedia, however, did not appear before the Learned Judge, Special Court, and without doing so they moved, this Court with a prayer that the order issuing processes should be set aside and the proceeding itself should be quashed.

5. The only point sought to be made out in this application is to the effect that although cognizance was taken under Section 190(1)(b) of the Code, of Criminal Procedure, 1898, under the amended provision of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, the Special Court is to follow the procedure prescribed by the Code of Criminal Procedure for trial of, warrant cases instituted otherwise than on a police report wholly inconsistent with Section 251 of the Code of Criminal Procedure, 1893, and the provisions of Anti-Corruption Laws Amendment Act XL of 1964. It is thus claimed that Section 5(1) of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 - under which the trial is to proceed before the Special Court - being repugnant to the Code of Criminal Procedure and the other Central Act referred to hereinbefore must be held to be void, and as such, the trial as initiated is not sustainable in law.

6. The only point thus raised in this application is, however, no longer res Integra so far as this Court is concerned. In a Bench decision of this Court in F.M.A. No. 173 of 1976 it has been clearly held that there is no such repugnancy. It was pointed out under the provisions of Section 5(2) of the Code of Criminal Procedure the special procedure for trial as laid down by the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, would prevail and that Act XL of 1964 did not alter this situation nor did it bring in any repugnancy. It was held by the Division Bench that 'the procedure laid down in Section 5 would remain unaffected' and that the trial must proceed in the manner so prescribed.

7. Mr. Monoj Kumar Mukherji who is now appearing on behalf of the petitioners has in his usual fairness conceded that the only point on which the petition is resting is concluded by the above decision of the Division Bench against the petitioners. He has, however, filed an application for leave to take an additional ground at the time of hearing. We have allowed him to do so though the point so sought to be raised has been raised at a late stage and though the point is not wholly consistent with the earlier stand taken by the petitioners solely with a view to avoid multiplicity of proceedings in this Court for the same relief based on different grounds. The additional ground which the petitioners are now taking before us is to the effect that the report of the Deputy Superintendent of Police dated January 13, 1972, on which cognizance was taken was really a petition of complaint which was filed by the police officer not acting or purporting to act in discharge of his duties so that the Learned Judge could not have validly taken cognizance of the offence without first examining the complainant under Section 200 of the Code of Criminal Procedure. Inspiration for raising such a point arises from a Bench decision of this Court in the case of Norode Baran Mukherji v. State of West Bengal, 1976 Cri LJ 370 (Cal). In this case, the Division Bench held that where the Special Court takes cognizance of offence under Section 190(1)(a) it has to comply with the provision of Sections 200 and 204 of the Code before any process can be issued against the accused.

8. Mr. Mukherji appearing in support of this Rule has pressed this additional point very seriously. According to Mr. Mukherji any report submitted in writing by a police officer is not a police report. He has drawn our attention to some of the provisions of the Code itself to show that even the police officers are required at times to file petitions of complaint so that such complaints when lodged by a Police Officer do not become police reports within the meaning of Section 190(1)(b) of the Code. The present trial is governed by the old Code so that the definition of a police report as in the new Code and the amended provision of Section 190(1)(b) are not applicable, But nonetheless Mr. Mukherji has contended that some meaning has to be ascribed to the term 'police report' or 'a report in writing... by any police officer.' In order to be so, according to Mr. Mukherji the report must be the result of any investigation or enquiry on any information or allegation as to commission of an offence, Referring to the report filed in the present case Mr. Mukherji has contended that there is nothing in it to show that it was the result of any prior investigation or enquiry. According to Mr. Mukherji the so-called report can be read only consistently as a complaint by a police officer and the Learned Judge, Special Court when he took cognizance on it has not expressly said anywhere that he was treating it otherwise than a complaint. He has drawn our attention to an order dated November 20, 1974, passed by the Learned Judge, Special Court, which according to Mr. Mukherji clearly indicates that the Learned Judge proceeded to take cognizance treating the report only as a complaint and not a police report or report in writing of a police officer.

9. Mr. Sanyal appearing on behalf of the State has seriously contested the point thus raised by Mr. Mukherji. According to Mr. Sanyal the order by which the cognizance was taken would clearly show that cognisance was being so taken on a police report though the Learned Judge had not referred to the relevant clause under Section 190(1) of the Criminal Procedure Code. According to Mr. Sanyal, the Learned Judge was authorised to take cognizance under either of the two clauses of Section 190(1) of the Code and if it can be established on the materials on record that the basis on which the Learned Judge proceeded to take cognizance was really a report in writing of the facts constituting the offence by a police officer, cognizance as taken could clearly be sustainable in law. Mr. Sanyal has put forward two alternative contentions before us. In the first place, Mr. Sanyal has contended that even if we assume that by the words 'report in writing by a police officer' in Section 190(1)(b) of the old Code as applicable to this case what is meant is a report of the nature contemplated by Section 173(1) of the Code, the report in the present case well fulfils the requirement of law. He has drawn our attention to facts and circumstances which we shall presently refer to, to support his contention that the report in the present case answer's the description of a report as under Section 173(1) of the Code in its substance, Alternatively, Mr. Sanyal has contended that under the provision of the old Code as it stood after the 1923 amendment, a report in writing by a police officer as in Section 190(1)(b) need not necessarily be a police report which is nothing but a report made in terms of Section 173(1) of the Code. Referring to two earlier decisions of this Court Mr. Sanyal has contended that when the Legislature amended Section 190(1)(b) by substituting the words 'police report of such facts' by 'report in writing of such facts by any police officer' the legislature intended to give a wider connotation to these words to incorporate not only a police report, that is, a report which is the result of an investigation made under Section 173(1) of the Code but also any other report of facts constituting an offence when made by a police officer. Relying on such a wider connotation of the words used in Section 190(1)(b) of the Code after its 1923 amendment, Mr. Sanyal has contended that the report in the present case by the Deputy Superintendent of Police even if it. does not answer the description of a report contemplated by Section 173(1) of the Code still it being a report in writing of facts constituting an offence by a police officer the Learned Judge could lawfully take cognizance under Section 190(1)(b) of the old Code.

10. We have carefully considered the rival contentions put forward before us and in our view there is ample substance in both the contentions raised by Mr. Sanyal. In the first place, we shall consider whether the report in question can be said to be a report contemplated by Section 173(1) of the Code which normally follows an investigation by the police. Admittedly, the report in question had not been submitted in the usual forms in which charge-sheets are submitted but in our view what must prevail is not the form but its substance. Looking at the substance there are inherent indications in the report itself to show that the same is a result of and consequent to an investigation held by the police. It is no doubt true that in the report itself there is no reference to the number of the police station case but the enumeration of facts would indicate that those were found out on a prior investigation. When the report goes on to state that two of the accused persons are on bail granted to them by the Chief Presidency Magistrate, Calcutta, and two are on bail granted by Additional Chief Judicial Magistrate, Delhi, there is no doubt that a police case was started for investigation in course of which those accused persons being arrested were released on bail. Doubt, if any, on the point is clearly removed by the facts disclosed by the petitioners themselves in their application to this Court which would appear from the statements made in paragraphs 2, 3 and 5 of the petition that the police started two cases being R.C. Case No. 15 of 1969 and R.C. Case No. 26 of 1969 for investigation, that the petitioners themselves moved this Court with writ petitions for quashing the investigation as a mala fide one though they were unsuccessful in their attempt to quash such investigation. It would further appear that the Deputy Superintendent of Police who has filed the report in the present case was the Investigating Officer. It cannot be disputed that the investigation in the present case being one under the Delhi Special Police Establishment Act, the Investigating Officer himself was authorised to submit a report contemplated by Section 173(1) of the Code acting as the Officer-in-Charge in view of the provision of Section 5(3) of the Delhi Special Police Establishment Act, 1946. In the background of such facts and circumstances we cannot but accept the contention of Mr. Sanyal that the report on which the Learned Judge took cognizance was in substance a police report submitted consequent to an investigation contemplated by Section 173(1) of the Code so that Section 190(1)(b) is attracted. Such being the position on facts, the additional point raised by the petitioners and contended for by Mr. Mukherji does not help the petitioners in any manner. The decision in Norode Baran Mukherji's case 1976 Cri LJ 370 (Cal) proceeds upon facts totally different from the facts of the present case. There, on the finding of the Learned Judges, the cognizance was taken in each case on a petition of complaint. Of the six cases considered there, in five the complaint was lodged by the Public Prosecutor. In the sixth one, the complaint was filed in the form of a report by the Investigating Officer, but on the finding of the Learned Judges the same was taken as a petition of complaint end not as a police report as found by us. In that case, the cognizance having been taken on a complaint Section 200 of the Code was admittedly attracted and what was considered by this Court was as to whether examination of the complaint could be dispensed with in view of the provision of Section 200 proviso (aa). That question does not, however, arise at all in the present case when on our findings made hereinbefore the cognizance having been taken on a police report under Section 190(1)(b), Section 200 is not at all attracted.

11. So far as the other contention put forward by Mr. Sanyal is concerned, we are of the opinion that there is ample substance in the same too, In the Code of Criminal Procedure as it stood prior to its 1923 amendment the language used in Section 190(1)(b) was 'upon a police report of such facts.' The expression police report so used was same as in Section 173(1) of the Code and any other provision like Sections 133, 145, 147 and 170 of the Code. Judicially interpreted the expression 'police report' carried a special meaning, namely, reports under Section 173, that is, to say, reports of cognizable offence or non-cognizable offence with regard to which there had been a direction by a Magistrate to investigate made after an investigation under Chapter XIV of the Code. Any other report of an offence made by a police officer on such interpretation would be no police report within the meaning of Section 190(l)(b) of the Code and could only be a complaint. But then there was an apparent incongruity when on the definition clause the complaint excluded a report of a police officer. To avoid such incongruity some of the High Courts took the view that report of a police officer as in the definition clause Section 4(1)(h) should be interpreted as synonymous with police report. In some of the judicial decisions including some by this Court the expression police report in Section 190(1)(b) as it stood prior to its 1923 amendment was again not given the limited meaning to include reports made under Section 173. It was in the background of the aforesaid divergence of judicial opinion that Section 190(1)(b) was amended in 1923 and for the words 'upon a police report of such facts' the words 'upon a report in writing of such fact's made by any police officer' were substituted and simultaneously the new proviso in clause (aa) was added to Section 200. The effect of this amendment was considered by this Court in two earlier cases of Manik Chand Chowdhury v. State : AIR1958Cal324 and Prem Chand v. State : AIR1958Cal213 . Considering the legislative history this Court held that the legislature did not desire that the operation of Section 190(1)(b) should be so restricted as to include in it the reports made under Section 173 and so in 1923 it amended the section by replacing the expression 'police report' by more general words, namely, 'reports in writing of such facts constituting an offence made by any police officer' which would cover all police reports. Thus, it was pointed out that the object of the amendment was to give a wider connotation and in such wider connotation Section 190(1)(b) would include not only any report submitted under Section 173 of the Code but any other report in writing of facts constituting an offence when such a report is filed by a police officer. The new Code of 1973 no doubt once more goes back to the position as it stood prior to 1923 amendment but admittedly the present case is governed by the old Code as it stood after the 1923 amendment, That being the position, Mr.' Sanyal can rightly contend that the impugned report being a report by a police officer setting out facts constituting an offence submitted by a police officer, the Learned Judge could lawfully take cognizance in exercise of his power under Section 190(1)(b) even if the report is not one which can be said to be a report submitted under Section 173 of the Criminal Procedure Code.

12. The decision of this Court in the case of Prem Chand v. State (1958 Cri LJ 622 (Cal) (supra), came to be considered by the Supreme Court in the case of Pravin Chandra v. State of Andhra Pradesh : 1965CriLJ250 The Supreme Court did not disapprove this Court's interpretation of clause (b) to Section 190(1) of the Code on its 1923 amendment whereby that clause was given a wider connotation to include not only police reports as submitted under Section 173(1) of the Code but any other report by a police officer setting out facts constituting an offence. What was disapproved by the Supreme Court was the view taken by this Court that Section 251-A of the Code would not apply to a trial which was initiated on a report contemplated by Section 20(G) of the Opium Act. This Court took the view that a report contemplated by Section 20(G) of the Opium Act may constitute a report within the meaning of Section 190(1)(b) in its wider connotation but the same not being a police report made under Section 173 of the Code Section 251-A of the Code would not be attracted. Supreme Court, however, took the view that the fiction introduced by Section 20(G) of the Opium Act in rendering such a report to be a report contemplated by Section 190(1)(b) would attract the provision of Section 251-A of the Code also. In the present case, however, we are only concerned with the meaning of the words 'upon a report in writing of such facts made by a police officer' as in Section 190(1)(b) of the Code. Two Bench decisions of this Court referred to hereinbefore having interpreted those words to give the clause a wider connotation to include not only police reports made under Section 173(1) of the Code but any other report setting out facts constituting the offence made by a police and such interpretation not having been disapproved by the Supreme Court we feel inclined to adopt such an interpretation of Section 190(1)(b) of the Code as it stood prior to the 1973 amendment. We are also in respectful agreement with the reasons given by this Court in the earlier two decisions for putting such a wider connotation to the words used in this clause by this Court. It would be pertinent in our view to refer to another decision of the Supreme Court in the case of Bhagwati Saran v. State of U.P. : [1961]3SCR563 which by necessary implication supports the view taken by us. Though in that case the point was not raised in the specific manner now raised before us, it would appear that there cognizance was taken on a report by the Officer-in-Charge of a police station submitted under Section 11 of the Essential Supplies (Temporary Provisions) Act, 1946. Cognizance appears to have been taken as under Section 190(1)(b) of the Code and the procedure for trial that was adopted was the procedure laid down for cases instituted on a police report. Though the Supreme Court held that such a report under Section 11 was not meant to serve as a charge-sheet against the accused persons yet the Supreme Court upheld the procedure adopted for taking cognizance on such a report or for the trial of the case initiated on such a report. This decision of the Supreme Court in our view by necessary implication supports the earlier view taken by this Court that in taking cognizance under Section 190(1)(b) a Magistrate is not necessarily limited to a charge sheet or a police report under Section 173(1) of the Code. He can take such cognizance on other kinds of Police reports as well.

13. Mr. Mukherji appearing on behalf of the petitioners has contended that such an interpretation of Section 190(1)(b) of the Code as it stood prior to the 1973 amendment may lead to undesirable results, namely, that any police officer may without completing an investigation under Chapter XIV and at any time submit a report inducing the Magistrate to take cognizance nonetheless under Section 190(1)(b) of the Code. In our view, however, there can be no reasonable ground for such an apprehension because whatever procedure the police may adopt it would be for the Learned Magistrate to take cognizance. There is no reason why any Learned Magistrate would encourage any such procedure. In such cases it would just be reasonable to think that the Learned Magistrates would insist on the police to discharge their duty enjoined by the Code by completing the investigation. Nor can we accept the further contention of Mr. Mukherji that given the wider connotation the report in writing of such facts made by a police officer in Section 190(1)(b) should be limited to mean only such reports as the police is authorised to submit under a particular statutory provision though it does not constitute a police report made under Section 173(1) of the Code. The terms of the clause do not justify such a limitation and by imposing such a limitation into the clause, we do not advance the object for the amendment incorporated in 1923. Plainly Clause (b) of Section 190(1) of the Code as it stood on the 1923 amendment authorised the Magistrate to take cognizance of an offence not only on a police report made under Section 173(1) of the Code after completion of an investigation but on any report setting out facts constituting the offence submitted by a police officer save and except, of course, where the law enjoins the police to submit not a report but a complaint. In this view, we are accepting the contention of Mr. Sanyal that even if the report submitted by the Deputy Superintenant of police in the present case be not considered to be a report made under Section 173 of the Code, still it was a report by a police officer on which the Learned Magistrate could lawfully take cognizance under Section 190(1)(b) of the Code, The Learned Magistrate's reference to such a report as a complaint in subsequent orders does not change the position, particularly, when in the order taking the cognizance there is nothing to indicate that such cognizance was taken treating the report as a complaint.

14. On the conclusions as above, the additional point raised by Mr. Mukherji in support of this Rule fails. The application fails and the Rule is discharged.

15. We, however, make it clear that this application should have been thrown out in limine since the petitioners moved this Court even before they had surrendered before the Learned Judge but since the Rule had been issued and a long time has elapsed, we thought it fit not to dismiss the application on such a ground - though it deserves to be so dismissed - but we have disposed of the application on its merits to avoid multiplicity of proceedings in this Court. All interim orders are vacated. Let the records be sent down forthwith.

A.P. Bhattacharya, J.

16. I agree.


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