Surendra Nath Jain v. State of U. P. — 1968 DIGILAW 393 (ALL)

JUDGMENT H.C.P. Tripathi, J. - These revisions first came up before Hon. B. D. Gupta, J. who has referred them for hearing by a division Bench. 2. Surendra Nath Jain who is the applicant in Criminal Revisions Nos. 2179, 2180 and 2181 of 1967 and Milki Ram and Ashok Kumar who are applicants in Criminal Revision No. 84 of 1968 are being tried for an offence under sub-clause (ii) of clause (a) of sub-sec. (1) of Section 7 of the Essential Commodities Act which is punishable by imprisonment for a term which may extend to three years. The offence for which the applicants are being tried is, therefore, a cognizable offence in the light of second entry in Schedule II in regard to "offences against other laws" in the third column thereof read with clause (f) of sub-sec. (1) of Section 4 of the Code of Criminal Procedure. 3. It is urged on behalf of the applicants that although the trial Magistrate has taken cognizance on the basis of a report made by a police officer, the applicants should be tried in accordance with the procedure prescribed under Section 252 and not as under Section 251-A of the Code. Reliance is placed by the learned counsel in support of his contention on a judgment of Hon. S. N. Singh, J. in Criminal Reference No. 315 of 1966 and also on a division Bench decision of Madhya Pradesh High Court (Gwalior Branch) in the case of State of Madhya Pradesh v. Baital Nahar Singh, A.I.R. 1966 MP 5. 4. In a similar case where the applicants were being tried for an offence under Section 3 read with Section 7 (1) (a) (ii) of the Essential Commodities Act in accordance with the procedure prescribed under Section 251-A of the Code a reference (Criminal Reference No. 315 of 1966) was made by Sri S. C. Tyagi, Civil and Sessions Judge, Kanpur, to this Court that directions be issued to the trial Magistrate "to proceed with the trial of the petitioners in accordance with the procedure laid down in Section 252" and it was accepted by Hon. S. N. Singh, J. "for the reasons given by the learned Sessions Judge in his order dated 29-6-1966" and the Magistrate was directed to proceed with the trial in accordance with the procedure laid down in Section 252 of the Code. 5. 5. We are of opinion that the aforesaid reference of the Sessions Judge was based on his mis-appreciation of the true import of a judgment of the Supreme Court reported in A. I. R. 1965 Supreme Court at page 1185 and on his ignoring the dictum laid down in the division Bench case of this Court State of Uttar Pradesh v. Asha Nand Kurmi, 1961 ALJ 295 which was cited before him. 6. Chapter XV (part VI) of the Code inter olio deals with "proceedings in prosecutions" and lays down conditions requisite for initiation of proceedings in Sections 190 and those which follow it. 7. The relevant part of Section 190 which throws light on the question in controversy reads : "190 (1) . Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; (c) upon information received from any person other than a police-officer, or upon his own knowledge or suspicion, that such offence has been committed." 8. It is thus obvious that a Magistrate can take cognizance of any offence either under sub-clause (a) or (b) or (c) of sub-sec. 1 of Section 190. Sub-clause (a) speaks of "complaint of facts which constitute such ,offence." Under Section 4(1) (h) of the Code 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." Sub-clause (c) speaks of "information received from any person other than a police officer ......... that such offence has been committed". Therefore when the Magistrate takes cognizance of any offence upon a report made by a police officer he is acting not under sub-clause (a) and (c) but under sub-clause (b) which clearly empowers him to take cognizance of any offence "upon a report in writing of such facts made by any police officer." 9. Section 4 (1) (w) defines "warrant case" as "a case relating to an offence punishable with death, (imprisonment for life or imprisonment for a term exceeding one year) ". Section 4 (1) (w) defines "warrant case" as "a case relating to an offence punishable with death, (imprisonment for life or imprisonment for a term exceeding one year) ". Therefore a case relating to an offence punishable under Section 7 (1) (a) (ii) of the Essential Commodities Act is a warrant case. 10. Chapter XXI of the Code provides for the trial of warrant cases by Magistrates. Section 251 of the aforesaid chapter reads : "In the trial of warrant-cases by Magistrate, the Magistrate shall :- (a) in any case instituted on a police report, follow the procedure specified in Section 251-A; and (b) in any other case, follow the procedure specified in the other provisions of this chapter. 11. It is, therefore, obvious that in the trial of warrant cases instituted on a police report the procedure to be followed is one prescribed under Section 251-A of the Code and in any case instituted otherwise than on a police report the procedure governing such a case is one prescribed under Section 252 of the Code. 12. There is no substance in the contention of the learned counsel for the applicants that although the Magistrate had taken cognizance of the cases against the applicants on a report made by a police officer as a warrant trial, the procedure to be followed is one prescribed under Section 252 of the Code on account of the provisions of Sec. II of the Essential Commodities Act. 13. Section 11 of the Essential Commodities Act provides that "no court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in Section 21 of the Indian Penal Code." The two essential ingredients of this section are (a) a report in writing of the facts constituting such offence and, (b) the report is by a person who is a public servant as defined in Section 21 of the Indian Penal Code. If these ingredients of the section are satisfied the bar placed on courts from taking cognizance of an offence under the Essential Commodities Act stands removed. 14. If these ingredients of the section are satisfied the bar placed on courts from taking cognizance of an offence under the Essential Commodities Act stands removed. 14. In Bhagwati Saran v. State of Uttar Pradesh, A.I.R. 1961 SC 928 the Supreme Court was pleased to hold that the report under Section 11 is required to contain only "a statement of facts constituting the offence" and its function is not to serve as a charge-sheet against the accused. The function or purpose of the second of the three requirements of Section 11 is to eliminate private individuals such as rival traders or the general public from initiating a prosecution and for this purpose before cognizance is taken the complaint is required to emanate from "a public servant." 15. There can be no doubt that a police officer making, a report under Section 173 of the Code of Criminal Procedure is a public servant within the meaning of Section 21 of the Indian Penal Code. There can be no doubt also that a report by such an officer under Section 173 of the Code is nothing else but "a report in writing of the facts constituting the offence". That being so, we are of .opinion that such a report satisfies the provisions of Section 11 of the Essential Commodities Act and on receipt of such a report the court is entitled to take cognizance of the offence punishable under the aforesaid Act. 16. In the State of Uttar Pradesh v. Asha Nand Kurmi a division Bench of this Court (B. N. Nigam and R. A. Misra, JJ.) inter alia observed : "Sec. 173 of the Cr. P. C. clearly shows that what is popularly called a charge-sheet is only a report in the prescribed form setting forth certain particulars to a Magistrate empowered to take cognizance of the offence on a police report. Thus the charge-sheet is a report. Similarly Section 190 (1) (o) mentions "upon a report in writing of such facts made by any police officer. Thus what is called a charge-sheet in popular language is a report though it is a report submitted by a police officer. We, therefore, do not see why a report under Section 173 or on the form prescribed under Sec. - 173 be not considered a report as required under Section 11 of the Essential Commodities Act, 1955." 17. Thus what is called a charge-sheet in popular language is a report though it is a report submitted by a police officer. We, therefore, do not see why a report under Section 173 or on the form prescribed under Sec. - 173 be not considered a report as required under Section 11 of the Essential Commodities Act, 1955." 17. We find ourselves in respectful agreement with this dictum. 18. We are further of opinion that Section 11 of the Essential Commodities Act is wholly irrelevant for the purpose of determining the procedure which is to be followed in the trial of a warrant case started on the report made by a police officer, as that question has to be determined in the light of the provisions of Section 190 of the Code of Criminal Procedure irrespective of anything said in the aforesaid Act. 19. In Pravin Chandra Modi's case the Supreme Court was dealing with a case in which the appellant was prosecuted under Section 420 Indian Penal Code and under Section 7 of the Essential Commodities Act, 1955, for contravention of clauses (4) and (5) of the Iron and Steel Control Order. The prosecution was commenced by the Inspector of Police, Crime Branch, C.I.D., Hyderabad, by filing against him a charge-sheet under Section 173 of the Code of Criminal Procedure in respect of the offence of cheating which was intended to serve also as a report in writing of a public servant as required by Section 11 of the Essential Commodities Act, 1955. The trial Magistrate had framed a charge against Modi tinder Section 251-A (3) of the Code of Criminal Procedure in respect of both the offences. One of the objections raised on behalf of the appellant was that as the police had filed a report under Section 11 of the Essential Commodities Act. a trial of the offence under Section 7 could not be under Section 25I-A but under Section 252 of the Code of Criminal Procedure. This objection was rejected by the trial Magistrate and the Sessions Judge. Appellant then came up before the Supreme Court. While dealing with the argument raised in support of the objection the Supreme Court was pleased to observe later alia as follows :- "In our judgment the meaning which is sought to be given to a "police report" is not correct. Appellant then came up before the Supreme Court. While dealing with the argument raised in support of the objection the Supreme Court was pleased to observe later alia as follows :- "In our judgment the meaning which is sought to be given to a "police report" is not correct. In Section 190, a distinction is made between the classes of persons who can start a criminal prosecution. Under the three clauses of Section 190 (1) , to which we have already referred, criminal prosecution can be initiated (i) by a police officer by a report in writing, (ii) upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion and (iii) upon receiving a complaint of facts. If the report in this case falls within (i) above, then the procedure under Section 251-A, Criminal Procedure Code, must be followed. If it falls in (ii) or (iii) , then the procedure under Section 252 Criminal Procedure Code, must be followed. We are thus concerned to find out whether the report of the police officer in writing in this case can be described as a "complaint of facts" or as "information received from any person other than a police officer". That it cannot be the latter is obvious enough because the information is from a police officer. The term "complaint" in this connection has been defined by the Code of Criminal Procedure and it "means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code ....... but it does not include the report of a police officer." "It is therefore, follows that Section 252 of the Criminal Procedure Code can only apply to those cases which are instituted otherwise than on a police report, that is to say, upon complaints which are not reports of a police officer or upon information received from persons other than a police officer." 20. It was contended before the Supreme Court on the authority of Prea Chand Khatry v. State, A.I.R. 1958 Calcutta 213 that a prosecution under Section 251-A Criminal Procedure Code can only commence on a report under Section 173 of the Code of Criminal Procedure and that a report under Section 11 of the Essential Commodities Act was not a charge-sheet for purposes of Section 173 of the Code. Dealing with this argument Hidayat Ullah, J. (as he then was) speaking for the Supreme Court observed "we have pointed out above that in all those cases where the law requires a report in writing by a public servant the requirements of the law are satisfied when a report is filed by a public servant who is also a police officer "and observed further" ............. the division Bench in the Calcutta High Court held that the Sec. created a fiction by which the report of an Excise or Customs Officer was to be regarded as the report of a police officer but only for the purpose of Section 190 (1) (b) , that it did not make the report a charge-sheet under Section 173 of the Code and that Section 251-A, Criminal Procedure Code, was not applicable because it contemplated a report under Section 173 of the Code. We invited counsel to tell us that if the effect of the fiction did not make it a report under Section 173, Criminal "Procedure Code, what other, purpose could the Legislature have had in mind in saying that it was a police officer's report ? He could suggest none and we cannot also see what other purpose was intended. 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 ................ " 21. Accordingly the Supreme Court dismissed the appeal. 22. We are of opinion that the aforesaid decision of the Supreme Court is the authority for the proposition that in the trial of wan-ant cases started on the report of the police for offences punishable under Section 7 of the Essential Commodities Act the procedure to be followed is one prescribed under Section 251-A of the Code and the decision of Hon. S. N. Singh, J. in Criminal Reference No. 315 of 1966 does not lay down the correct law. We also find ourselves unable to agree with- the division Bench decision of Madhya Pradesh High Court in the case of Baital Nahar Singh' referred to above. We also find ourselves unable to agree with- the division Bench decision of Madhya Pradesh High Court in the case of Baital Nahar Singh' referred to above. On the other hand we find that in the case of Ashiq Miyan v. State, A.I.R. 1966 MP 1 the full Bench of Madhya Pradesh High Court following the observations of the Supreme Court in Pravin Chandra Modi's case overruled the division Bench decision of that court in Sardar Khan's case and held that if a case had been instituted upon a report falling under Section 190 (1) (b), Cr. P. C. i.e. on a report in writing of such facts made by any police officer the procedure prescribed by Section 251-A must be followed even in excise cases because in the opinion of the full Bench the position was in no way affected by the fact that the investigation of the offence under the Opium Act was under Section 20 of that Act and not under Chapter XIV of the Criminal Procedure Code. 23. In the result we are of opinion that the trial Magistrate was fully justified in following the procedure prescribed under Section 251-A of the Code for the trial of the applicants. The revisions are accordingly rejected and the stay order is discharged. The trial Magistrate is directed to proceed with the case expeditiously.