Prem Chand v. State of U. P. — 1973 DIGILAW 195 (ALL)

JUDGMENT C.D. Parekh, J. - This reference has been made by the Third Additional Sessions Judge, Farukhabad, by his order dated 28th March, 1972. On receiving the reference, notices were sent to the State as well as to Sri Prem Chandra the accused who was revisionist before the Sessions judge, on whose revision this reference has arisen. Prom Ghandra filed a revision against the order dated 27th September, 1971, passed by Sri H.S. Dhavan, Special Railway Magistrate, I Fatehgarh, rejecting the application of Prem Chandra for furnishing the copies of documents and statement, which the prosecution wanted to rely in support of its case. This application by Prem Chandra purports to have been filed under Section 173 (4) of the Cr.P.C., which runs thus : "173 Sub-Clause (4)-After forwarding a report under this section, the officer-in-charge of the police station shall, before the commencement of the enquiry or trial, furnish or cause to be furnish- ed to the accused, free of cost, a copy of the report forwarded under sub-section (1) and of the first information report recorded under section 154 and of all other documents or relevant extracts thereof, on which the prosecution pro- poses to rely, including the statements and confessions, if any, recorded under Section 161 and the statements recorded under Sub-Section (3) of Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. 2. Prem Chandra in his application filed before the Magistrate prayed that the copies of all the documents and the statements of the witnesses recorded during the investigation, which were to be relied up- on by the prosecution may be ordered to be furnished to him in the interest of justice. 3. The revisionist Prom Chandra was being prosecuted under Section 3 of the Railway Property (Unlawful Possession) Act, 1966. It was alleged that on 2nd May, 1971, Prem Chandra was found in possession of a stolen dynamo belt (Ext. Y.) belonging to the North Eastern Rail- way. Hence he was prosecuted under section 3 of the Railway Property (Un- lawful Possession) Act, 1966. On 20th September, 1971, Prem Chandra appear- ed before the learned Special Magistrate and he was given a copy of the complaint. Thereafter 27th September, 1971 was fixed for further hearing of the case. Y.) belonging to the North Eastern Rail- way. Hence he was prosecuted under section 3 of the Railway Property (Un- lawful Possession) Act, 1966. On 20th September, 1971, Prem Chandra appear- ed before the learned Special Magistrate and he was given a copy of the complaint. Thereafter 27th September, 1971 was fixed for further hearing of the case. On 27th September, 1971, the prosecution examined P.W. 1 and a charge under Section 3 of the said Act was framed against Prom Chandra. The case was fixed for final hearing on 5th October, 1971. The accused Prem Chandra applied on that date that the copies of all the documents and the statements of the witnesses recorded by the Investigating Officer during the investigation and upon which the prosecution wanted to rely, should be furnished to him under the aforesaid provision of the Criminal Procedure Code. The Magistrate passed the following order : "This is a complaint case and not a police report. Hence copies of documents cannot be supplied except complaint, which was already been sup- plied. Other documents, are all on file and can be seen by the defence counsel." 4. Prem Chandra, aggrieved by this order, had preferred a -revision before the Sessions judge who has made this reference. I he learned judge, who had heard referred to the revision, found support from the case reported in 1971 Crl L.J. 1582 Durga Prasad v. State and held that the contention, raised on behalf of Prem Chandra, was not without force. He has referred to Section 14 of the Railway Property (Unlawful possession) Act, 1966, which provides that the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. According to the Sessions Judge, therefore, Section 14 would prevail where there is any other law inconsistent with the Railway Property (Un-lawful Possession) Act, 1966, to the extent of inconsistency. He has quoted Section 8 Sub-section 2 of the Railway Property (Unlawful Possession) Act, 1966 and has stated about the manner of enquiry and how it is to be made against arrested person. He has relied upon Section 8(1) as well besides Section 8(2) of the Act. 5. Before the Sessions judge, no other provision of the said Act was brought to his notice, as has been stated by him in his reference order. He has relied upon Section 8(1) as well besides Section 8(2) of the Act. 5. Before the Sessions judge, no other provision of the said Act was brought to his notice, as has been stated by him in his reference order. He has, there- fore, held that Section 8 provides the procedure for an enquiry or an investigation against an accused of any charge under the Railway Property (Unlawful Possession) Act, 1966. He has referred to the aforesaid ruling reported quoted supra and has stated that while interpreting Sub-section 2 of Section 8 this court has observed that Sub-clause (2) of the afore- said Section makes it evident that an officer of the force may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of the police-station may exercise when investigating a cognizable offence. He has, therefore, held that it was obvious that although the word "enquiry" has been used in Section 8, it amounts to an "investigation" under the Criminal Procedure Code and the powers and duty of an officer of the Railway Protection Force are analogous to that of Investigation Officer conducting investigation of a cognizable offence under the Criminal Procedure Code. He has further relied upon the observation of this court in the said case that an officer of the Railway Protection Force while holding an enquiry against the arrested person is subject to the limitations placed upon the police officer under the Criminal Procedure Code and has gone to the ex- tent of quoting the words of the said ruling that under Section 8 of the Railway Property (Unlawful Possession) Act, 1966, an officer of the force is to be guided by the provisions of the Criminal Procedure Code in respect of that enquiry, which amounts to an investigation. The learned Sessions judge has thus held that in view of the pronouncement of this court aforesaid the "enquiry" amounts to an "investigation" under the Criminal Procedure Code and the authority i. e. the officer of the Railway Protection Force while holding an enquiry shall follow the same procedure as is prescribed under the Criminal Procedure Code and shall perform the same duties which are enjoined upon an officer-in-charge of a police-station while investigating a cognizable case. In the opinion of the earned judge, therefore, the case under the Railway Property (Unlawful Possession) Act, 1966 starts not on a complaint, but on a police report and, therefore, it was incumbent upon the Investigating Officer of the case to have furnished or caused to be furnished to the accused, free of post, a copy of the report under sub-section 1 of Section 154, Cr.P.C. i. e. the first information report, and of all other documents or relevant extracts thereof on which the prosecution wanted to rely and this should have been done before the commencement of the enquiry or trial, as provided in Sub-section 4 of Section 173 of the Criminal Procedure Code. The Sessions judge went on to hold that admittedly that has not been done in the present case. Hence the demand for furnishing such documents mentioned in Sub-section 4 of Section 173, Cr.P.C. was not only legitimate, but the right of the accused has been denied by the Magistrate and illegal order was passed by the Magistrate. The learned Sessions judge also went on to hold that no authority has been cited to support any contrary view. He has, therefore, hold even on the point of propriety also that the copies of such documents should have been furnished to the accused Prem Chandra before the commencement of the trial, because that would have enabled him to know the facts and circumstances, which the prosecution wanted to use against him in support of the charge. It appears and has been stated by the Sessions judge that no authority of law was brought to his notice under which such supply of copies is forbidden. The ruling aforesaid and the law laid down by this court in 1971 Cr1. L. J. page 1582 (supra) was taken to be a settled law and in his opinion every procedure is meant to subserve the ends of justice. In the opinion of the Sessions Judge, the ends of justice would have been better served, had these copies been supplied to the revisionist Pram Chandra before the commencement of the trial. He has, therefore, held that the order passed by the Magistrate, refusing to grant copies of the documents as provided under Section 173 (4) of the Criminal Procedure Code, was not only illegal but was also improper and was liable to be set aside, and, therefore, this reference has been made. He has, therefore, held that the order passed by the Magistrate, refusing to grant copies of the documents as provided under Section 173 (4) of the Criminal Procedure Code, was not only illegal but was also improper and was liable to be set aside, and, therefore, this reference has been made. 6. In spite of the service of the notice, Prom Chandra did not appear before this court. The learned Government Advocate brought to my notice that the word "enquiry" has been used in Section 8 and t?-,e Legislature has purposely avoid- ed to use the word "investigation" and Section 8 has further been supplemented by the provisions of Section 9 of the Rail- way Property (Unlawful Possession) Act, 1966 and that they are supplementary and complementary to each other and if they are read together, the word "enquiry" as used in Section 8 amounts to an -`enquiry" only and does not mean the "investigation" as contemplated by the Criminal Procedure Code by a Police Officer Incharge of a police-station. He has argued, that it is another matter that under the Railway Property (Unlawful Possession) Act, 1966 an officer of the force has powers of a Police Officer as provided in the Criminal Procedure Code inclusive of the powers to record the statement of the witnesses under Section 162 of that Code but when he submits a report he does it under Clause l(a) of Section 190, Cr.P.C. According to the Government Advocate, he is not required to supply such documents 1. e. the copies of the first information report and other documents as contemplated by Sub-clause 4 of Section 173 to the accused. According to the learned State Counsel under the aforesaid Act the word "enquiry" is not equivalent to and it cannot be read as "investigation". He has referred to me two Sections of the Central Excises and Salt Act, 1944 and my attention has been drawn particularly to Sections 14 and 21 of that Act which are quoted below : 14. Power to summon persons to give evidence and produce documents in enquiries under this Act. He has referred to me two Sections of the Central Excises and Salt Act, 1944 and my attention has been drawn particularly to Sections 14 and 21 of that Act which are quoted below : 14. Power to summon persons to give evidence and produce documents in enquiries under this Act. (1) Any Central Excise Officer duly empowered by the Central Government in this behalf shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any enquiry which such officer is making for any of the purposes of this Act. A summon to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned. (2) All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such officer may direct ; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required : Provided that the exemptions under Sections 132 and 133 of the Code of Civil Procedure shall be applicable to requisitions for attendance under this section. (3) Every such enquiry as aforesaid shall be deemed to be a "judicial proceeding" within the meaning of section 193 and section 228 of the Indian Penal Code. 21. Enquiry how to be made by Central Excise Officer against arrested per- sons forwarded to them under section 19. (1) When any poison is forwarded under Section 19, by a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to enquiry into the charge against him. 21. Enquiry how to be made by Central Excise Officer against arrested per- sons forwarded to them under section 19. (1) When any poison is forwarded under Section 19, by a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to enquiry into the charge against him. (2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same previsions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case : Provided that ; (a) if the Central Excise Officer 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 for- warded him in custody to such Magistrate : (b) if it appears to the Central Excise Officer 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 Central Excise Officer may direct, to appear, if and when so required be- fore the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior. 7. He has referred to me the case report- ed in Badaku Joti Syant appellant v. State of Mysore, 1966 S.C. page 1746 and invited particular attention to paragraph 9 of that case. In this ease, it has been held by the Supreme Court while dealing with Sectional of that Act, that it does not appear that the power of the Central Excise Officer under the Act includes the power to submit a charge sheet under Section 173 of the Criminal Procedure Code. Under Section 190 of the Code Criminal Procedure, a Magistrate can 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. A Police Officer for the purpose of clause (1) of Section 190 of the Or. 8. A Police Officer for the purpose of clause (1) of Section 190 of the Or. P. C. can only be a police officer properly so called as the Cr.P.C. shows. The Supreme Court has discussed the scheme of the Criminal Procedure Code and has held that the Central Excise Officer will have to make a complaint under clause (1) (a) of Section 190 of the Cr.P.C., if he wants the Magistrate to take cognizance for the offence under that Act. Thus under Sub-section 2 of S. 21 of the Central Excises Act, the Central Excises Officer under the Act has the power of an officer-in-charge of a police station when he enquires into a cognizable case for the purposes of his enquiry under sub-section 1 of Section 21. Section 21 is in terms different from Section 78(3) of the Bihar and Orissa Excise Act, 1915 which came to be considered in Raja Ram Jaiswal's case, AIR 1964 S.C. 828 and which provided in terms that for the purpose of section 156 of the Criminal Procedure Code. The area to which an excise officer empowered under Section 77 (2) is appointed shall be deemed to be a police station and such officer shall be deemed to be police officer-in-charge of such section. The Supreme Court has, therefore, held that it cannot therefore be said that the provisions of Section 21 of the Central Excise and Salt Act, 1944 is on par with the provisions of Section 78(3) of the Bihar and Orissa Excise Act. All that Section 21 provides is for the purposes of his enquiry, a Central Excises Officer shall have the power of an officer-in-charge of police-station when he is investigating a cognizable case. But even so it appears that these powers do not include the power to submit a charge sheet under Section 173 of the Criminal Procedure Code. The Central Excises Officer is not deemed to be an officer- in-charge of the police-station he only exercises those powers as envisaged by the Central Excise and Salt Act. 9. In the Act under consideration i, e. the Railway Property (Unlawful Possession) Act, 1966, although the Officer of the force is invested with the powers and may exercise the same power subject to such provision as the officer-in. 9. In the Act under consideration i, e. the Railway Property (Unlawful Possession) Act, 1966, although the Officer of the force is invested with the powers and may exercise the same power subject to such provision as the officer-in. charge of police station may exercise, when the investigation of a cognizable case, but this provision is further supplemented by Section 9 of the Act, where. in the officer of the force shall have additional power besides the powers of the police officer. Under Section 9 of the Act, he can secure the attendance of any witness for evidence or to produce any document or thing for the purposes of an enquiry which such officer is making for any of the purposes of the Act. Sub-section 4 of Section 9 further provides that every such enquiry under the section shall be deemed to be judicial proceedings within the meaning of Section 193 and Section 228 of the Indian Penal Cede. The only question, there- fore, is whether the "enquiry" conduct- ed by any officer of the force when for- warding to the Magistrate the accused he exercises the power of the police officers investigating the case under the Criminal Procedure Code or exercises the power under Sections 8 and 9 of the Railway Property (Unlawful Possession) Act, 1966. Under this Act, he is not required to make a report as required under sub-clause (i)(b) of section 190 of the Criminal Procedure Code. If he is not required to submit a report, it can only be considered to be a complaint under sub-clause (a) of Section 190 of the Criminal Procedure Code. In my opinion, therefore, the police report as contemplated by sub-section 1(b) of Section 190 of the Criminal Procedure Code is a different report than the complaint that the officer of the force is to submit before the Magistrate, while forwarding the accused. He is not required to submit his report under sub-section 1 of Section 173 of the Criminal Procedure Code. Therefore, the Magistrate only can take cognizance of the case sent by an officer of the force after he has completed his enquiry and forwarded the case to him under Section 190(1)(a) of the Cr.P.C. 10. He is not required to submit his report under sub-section 1 of Section 173 of the Criminal Procedure Code. Therefore, the Magistrate only can take cognizance of the case sent by an officer of the force after he has completed his enquiry and forwarded the case to him under Section 190(1)(a) of the Cr.P.C. 10. In the circumstances of the case, the accused, who was forwarded by the officer of the force to the Magistrate, is only entitled to get a copy of the complaint and he is not entitled to get the copies of all the documents, as contemplated by sub-clause 4 of Section 173 of the Criminal Procedure Code and, in my opinion, the Magistrate was justified in rejecting the application for furnishing the copies as prayed for. The learned Judge, as it appears, was misled by the culling reported in 1971 Crl. L. J. page 15, 2. That case law only refers to the statements, which were recorded under Section 8 and were signed by the witness and were used as previous statement but that case has not dealt with the pro. visions of Section 9 nor has dealt with the other provisions of the Railway Property (Unlawful possession) Act, 1966. If Sections 8 and 9 of the Act are both read together, the powers of the officer of the force are not different than those of Excise Officer as contained in Sections 14 and 21 of the Central Excise and Salt Act, 1944 ; Sections 8 and 9 of the Railway Property (Unlawful Possession) Act, 1966 read thus : 8. Enquiry how to be made against arrested persons : (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 enquire into the charge against such person. Enquiry how to be made against arrested persons : (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 enquire 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, 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, be 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 any 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. 9. Power to summon persons to give evidence and produce documents. (1) An officer of the Force shall have power to summon any person whose at- tendance he considers necessary either to give evidence or to produce a document, or any other thing in any enquiry which such officer is making for any of the purposes of this Act. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description In the possession or under the control of the person summoned. (2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description In the possession or under the control of the person summoned. (3) All persons so summoned, shall be h'-Ind to attend either in the person or by in authorised agent as such officer may direct, and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required : Provided that the exemptions under Sections 132 and 133 of the Code of Civil Procedure, 1908, shall be applicable to requisitions for attendance under this section. (4) Every such enquiry as aforesaid shall be deemed to be a "judicial proceeding" within the meaning of sections 193 and 22R of the Indian Penal Code. The wordings of both the Acts stand in Pari materia and the law laid down by the Supreme Court in my opinion fully apply to the point involved in this reference. 11. The learned Sessions judge has frankly admitted that no other law was cited before him ; and, therefore, it appears that no adequate aid from the bar was given to him either by the State Counsel or by the counsel for the defence. In these circumstances, it appears this reference has been made. The point is fully covered by the Supreme Court decision (supra). 12. In the result, the reference is reject. ed and the order of the Magistrate is upheld.