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1966 DIGILAW 72 (PAT)

State Of Bihar v. Dasrath Munda

1966-06-17

B.N.JHA

body1966
Judgment B.N.Jha, J. 1. This is an appeal by the State of Bihar under Sec. 417 of the Code of Criminal Procedure against the order of acquittal dated June 17, 1966, passed under Sec.247 of the Code of Criminal Procedure 1898 (hereinafter to be referred to as the Code) in T. R. No. 870 of 1966 the Munsif-Magistrate, Hazaribagh. 2. On June 17, 1968, the Munsif-Magistrate passed the following orders: "Complainant not present. Accused is acquitted under Sec.247 Cr. P. C." Learned Counsel for the State contended that the order of acquittal under Sec.247 of the Code of Criminal Procedure is erroneous in law. The court could not have acquitted the accused under Sec.247 of the Code of Criminal Procedure as the case is not a complaint case. On the other hand, Counsel for the respondent supported the order of the learned Magistrate on the ground that the present case filed on the report of the Sub-Inspector of Excise, Ramgarh is a complaint case and in the absence of a complainant on the date fixed the court was justified in passing the order of acquittal. 3. The Sub-Inspector of Excise, Ramgarh-West filed a report before the Subdivisional Magistrate, Hazaribagh, for taking action against the respondent for an offence committed by him under Sec. 47 (a) of the Bihar and Orissa Excise Act 1915 (hereinafter referred to as the Act) as one mobile-tin containing about 3 litres of I. D. Liquor was recovered from his house. The learned Subdivisional Magistrate took cognizance of the case on April 29, 1965, and passed the following order: "Perused the prosecution report, of Excise S. I. Cognizance of the offence under Sec. 47(a), Excise Act taken. Case transferred to the file of Sri S. N. Laha Magistrate, 1st Class for favour of disposal." Steps were taken by the prosecution for the appearance of the accused on several dates fixed by the court. But in spite of issue of even non-bailable warrant of arrest, the respondent did not appear in court. Ultimately steps under sections 87 and 88 of the Code of Criminal Procedure were taken against the respondent; but all in vain. On June 10, 1966, the case was transferred to the file of Sri S. D. Sharma, Munsif-Magis-trate, Hazaribagh for disposal. On June 17, the file was received by him. Ultimately steps under sections 87 and 88 of the Code of Criminal Procedure were taken against the respondent; but all in vain. On June 10, 1966, the case was transferred to the file of Sri S. D. Sharma, Munsif-Magis-trate, Hazaribagh for disposal. On June 17, the file was received by him. On June 17, 1986, the date fixed in the case, the impugned order was passed by the court. 4. Therefore, the main question for consideration in this case is whether the report by the Sub-Inspector of Excise filed before the Subdivisional Magistrate on which cognizance was taken could be regarded as a complaint for the purpose of Sec.247 of the Code of Criminal Procedure. Sec.247 of the Code reads as follows: "If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day." "Complaint" has been defined in Sec. 4 (h) as complaint means the allegation made orally or in writing to a Magistrate, with a view to his taking action, under this Code that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer. Here, the report on which cognizance was taken by the Subdivisional Magistrate was filed by the Sub-Inspector of Excise, Ramgarh-West in the district of Hazaribagh, learned counsel for the State submitted that the report of the Sub-Inspector of Excise could not be regarded as a complaint, but for the purpose of the Code of Criminal Procedure it is a report submitted by a Police officer, and, as such, it could not be treated as a complaint and the order of acquittal passed by the Magistrate under Sec.247 of the Code of Criminal Procedure could not be maintained in law. 5. Learned counsel for the respondent submitted that the penalty for committing an offence under Sec. 47 of the Act is a sentence of imprisonment for a term which may extend to one year or to a fine which may extend to two thousand rupees or to both. Under schedule 2 of the Code of Criminal Procedure, such offence is not cognizable. Under schedule 2 of the Code of Criminal Procedure, such offence is not cognizable. The report submitted by the Excise Officer to the Magistrate on which cognizance was taken by him could be regarded to have been taken only under Sub-clause (a) and not under Sub-clause (b) of Clause (1) of Sec.190 of the Code of Criminal Procedure. Sub-clause (a) provides for taking cognizance of an offence by an appropriate authority upon receiving b complaint of facts which constitute such offence and Sub-clause (b), upon a report in writing of such facts made by any police officer. According to his submission, a Sub-Inspector of Excise is not a police officer within the meaning of Sec.190 of the Code, and as such cognizance taken by the Magistrate on the report in the case wai under Sub-clause (a) of Sec.190 (1). The report was a complaint within the meaning of the Code. Hence, the learned Munsif-Magistrate was justified in proceeding under Sec.247 of the Code and acquitting the accused as the complainant was not present on the date fixed in the case. 6. Now the question resolves itself within a narrow compass as to whether a sub-Inspector of Excise is a police officer within the meaning of the Code and the report submitted by him was a police report. It is true that under the Police Act an excise officer cannot be a police officer within the meaning of that Act and he is not in charge of maintaining law and order. But the question has got to be answered in the light of the various provisions of the Excise Act, Section 77 of the Bihar and Orissa Excise Act 1915 provides as follows: "77. What Excise Officers may investigate offences- (1) A Collector mav. without the order of a Magistrate, investigate any offence punishable under this Act which a court Having jurisdiction over the local area within the limits of the Collectors Jurisdiction would have power to inquire into or try under the provisions of Chapter XV of the Code of Criminal Procedure, 1898, relating tc the place of inquiry or trial. without the order of a Magistrate, investigate any offence punishable under this Act which a court Having jurisdiction over the local area within the limits of the Collectors Jurisdiction would have power to inquire into or try under the provisions of Chapter XV of the Code of Criminal Procedure, 1898, relating tc the place of inquiry or trial. (2) Any other Excise Officer specially empowered in this behalf by the State Government in respect of all or any specified class of offences punishable under this Act may, without the order of a Magistrate, investigate any such offence which a court having jurisdiction over the local area to which such officer is appointed would have power to inquire into or try under the aforesaid provisions". The Governor of Bihar by Notification No. 470-F dated January 15, 1919, has specially empowered under Section 77 (2) Inspectors of Excise and Sub-Inspectors of Excise to investigate any offence punishable under the Excise Act, It is conceded by learned counsel for the respondent that the notification is still in force. Under Section 92 of the Act such notification has the effect as if enacted in this Act. Section 78 (3) provides that for the purposes of Section 156 of the Code of Criminal Procedure, 1898, the area to which an Excise officer empowered under Section 77, Sub-section (2) is appointed, shall be deemed to be a police station and such officer shall be deemed to be a Police officer in charge of such a station. Though under the Police Act, a Sub-Inspector of Excise may not be a police officer, yet by legal fiction under Section 78 (2), he is a Police Officer for the purposes of Sec.156 of the Code of Criminal Procedure, 1898. Section 78 (1) confers on the Excise Officer the same powers to make investigation and to arrest without warrant for offences under sections 47, 49, 55 and 56 of the Act, as are conferred upon police officers in charge of a police station under sections 160 to 171 and Sections 54 (1) and 56 of the Code in respect of cognizable offences. Sub-section (4) of that Section provides that after the investigation by such Excise Officer is completed and if he finds sufficient evidence to justify the forwarding of the accused to the Magistrate, shall submit a report to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offences on a police report. It further provides in clear terms that the report by the Excise Officer shall, for the purpose of Sec.190 of the Code of Criminal Procedure, 1898, be deemed to be a police report. Therefore, by virtue of the provisions of Sections 77 and 78 of the Act a Sub-Inspector of Excise is a Police officer in charge of a police station and the report submitted bv him to the Magistrate will be regarded as a police report within the meaning of Sec.190 of the Code This view also finds support from a decision of the Supreme Court in Raja Ram Jaiswal V/s. State of Bihar. AIR 1964 SC 828 , where a question arose as to whether a confession made before an excise officer in respect of an offence under the Bihar and Orissa Excise Act was admissible in evidence or not under Sec.25 of the Evidence Act. Their Lordships held that the Excise Inspector was a police officer within the meaning of the Act and the confession made by the accused before such an officer was not admissible in evidence. Therefore, the report by the Sub-Inspector of Excise, Ramgarh-West to the Subdivisional Magistrate, Hazaribagh could not be regarded as a complaint as such report is excluded from the definition of complaint, and hence Sec.247 of the Code of Criminal Procedure could not have any application to the facts of the present case. 7 For the reasons stated above, the order of the learned Munsif, Magistrate dated June 17, 1966, acquitting the respondent under Sec.247 of the Code is bad in law and must be set aside and the case is remitted back to him for disposal according to law.