Bishwanath Manilal v. State — 1978 DIGILAW 174 (PAT)

Judgment Muueshwari Sahay, J. 1. These two criminal revisions 888 and 1290 of 1976 have been heard together as they arise out of the same judgment of conviction of the petitioners for an offence under section 47 (a) of the Bihar and Orissa Excise act, 1915 (hereinafter to be referred to as the Act ). There is only one petitioner named Bishwanath Mandal in Criminal revision 888. Ramesh Narain Choudhary, umed Narain Choudhary and Bhuneshwar I hakur are the petitioners in the other revision petition. 2. The prosecution case was that Sergeant Major R. B. Pandey had received confindential information at Darbhanga at 8 p. m. on 26th of July, 1967 that one Kamdeo Singh said to be a veteran ganja smuggler was to visit his village he in village Naraingaon within Begusarai sub-division the following morning. The Sergeant Major learnt further that Raindeo Singh would pass on a jeep on National Highway no.29. The Sergeant Major rushed to Begusarai and contacted the superintendent of police there and arranged a raiding party to intercept Ramdeo Singh at Jhamatia Mor within Bachhwara Police Station. A number of police officers were stationed there and they intercepted all vehicles which passed through the road there. In the following morning at about 850 a. m. a jeep was noticed coming from the northern side at a very high speed. It was signalled to stop but disobeying the signal the jeep sped towards the south. Some occupants of the jeep had also fired two shots at the police party. When the jeep sped towards the south some members of the raiding also chased the same on jeep. Shots were fired at the rear wheel of the speeding jeep which all missed the target. When the jeep had gone to a distance of about 4 kilometres from that place, it fell in a ditcb after striking an electric pole and thus the chasers overtook them. The occupants of the fleeing jeep, however, had got down from the jeep and had tried to run away. Eventually, they were chased and caught. Four of them were put on trial after invetigation. I should have mentioned that 625 kilo and 500 grams of non-duty paid ganja was recovered from the fleeing jeep. 3. A number of witnesses were examined by the prosecution in support of its allegations. Eventually, they were chased and caught. Four of them were put on trial after invetigation. I should have mentioned that 625 kilo and 500 grams of non-duty paid ganja was recovered from the fleeing jeep. 3. A number of witnesses were examined by the prosecution in support of its allegations. Most of the witnesses were naturally police officers who were members of the raiding party. The petitioners denied their complicity in the crime. They alleged that they had been falsely implicated due to enmity. The trial court, however, found them guilty and sentenced them to undergo rigorous imprisonment for a period of one year each and to pay of fine of Rs.1,000, in default to undergo further rigorous imprisonment for two months each under section 47 (a) of the Act. On appeal, Shri S. L; Nandkeolyar, Additional sessions Judge, Monghyr, affirmed the conviction and the sentences passed on the petitioners. 4. Only two points have been urged before me in support of these petitions. Firstly, the petitioners contend that they have been denied hearing by the appellate court inasmuch as no opportunity was given to them to submit their arguments before that court. Secondly, it is submitted that the trial of the petitioners was vitiated for want of sanction of the State Government as required under the provisions of section 96 of the Act. I shall presently point out that both the points are well founded. 5. For a proper appreciation of the petitioners submission that hearing was denied to them in the appellate court certain facts have to be stated. The appeal which the petitioners preferred before the learned Sessions Judge, Monghyr, was transferred to the file of Shri J. Rahman, Additional Sessions Judge, monghyr on 10th of June, 1975. Shri Rahman took up the hearing of the appeal on 15th July, 1975. After the appeal was heard in part, the hearing was adjourned to 21st of July, 1975. The hearing was not concluded on that date as well and the appeal was adjourned to 23rd of July, 1975. For one reason or the other, the appeal was not heard either on 23rd of July, 1975 or on two subsequent dates. The appeal was next heard on 26.8.75, 27.8.75 and 1.9.75. The hearing was concluded on 1.9.75 and 9th of September, 1975 was fixed for judgment. For one reason or the other, the appeal was not heard either on 23rd of July, 1975 or on two subsequent dates. The appeal was next heard on 26.8.75, 27.8.75 and 1.9.75. The hearing was concluded on 1.9.75 and 9th of September, 1975 was fixed for judgment. Strangely enough, a petition was filed by the Additional Public prosecutor on 9.9.75 that the prosecution had to make some more submissions on questions of fact and law and, therefore, they prayed for an opportunity of making those submissions. It may be recalled that the appeal had been heard on 5 days before that the learned Additional Public Prosecutor had also argued the appeal for 2 days before Shri Rahman and still some questions of fact and law had been left to be argued. Be that as it may, the prayer was allowed by Shri Rahman. Unfortunately, further arguments in the appeal could not be heard by Shri rahman either because he was engaged in some other work or the Additional public Prosecutor was not available. The order dated 15th of January, 1976 shows that Shri Rahman had made over charged of his office on transfer and the appeal was transferred to Shri Nandkeolyar on 17th of January, 1976. It would be seen, therefore, that the petitioners had full opportunity of arguing their case before Shri Rahman and they have not complained that any opportunity was denied to them when the appeal was pending before Shri Rahman. Unfortunately, for reasons which are not quite apparent to me, Shri Rahman could not dispose of the appeal and the petitioners have made a grievance that they could not know as to what followed thereafter. Shri Nandkeolyar fixed 23rd of January, 1976 for the hearing of the appeal. No one was present before him on that date on behalf of the petitioners. The orderly of the court was sent to the Bar Library in search of the learned lawyer for the petitioners, but the lawyer was not met there. Again, at 2 p. m. On that very date an order was recorded that the petitioners lawyer was not present. The appeal was adjourned to the following day, i. e.24th of January, 1976 for hearing. When on 24th of January, 1976 was called out, no one again appeared on behalf of the petitioners before Shri Nand keolyar. Again, at 2 p. m. On that very date an order was recorded that the petitioners lawyer was not present. The appeal was adjourned to the following day, i. e.24th of January, 1976 for hearing. When on 24th of January, 1976 was called out, no one again appeared on behalf of the petitioners before Shri Nand keolyar. The learned Additional Sessions Judge heard arguments on behalf of the State and fixed 2th of January, 1976 for orders. On that date he dismissed the appeal of the petitioners. Therefore, the appellate court, which had decided the appeal of the petitioners, against them, had really not heard them before deciding the appeal. Learned Counsel for the petitioners submits that after the appeal was heard in full by Shri Rahman and a date for judgment was fixed in the case, they left for their homos which were in the district of Darbhanga or vaishali and they had no information whatsoever of the developments which had taken place after a date for judgment had been fixed in the appeal by Shri rahman. Tt is submitted further that there was nothing on the record to show that any intimation of the transfer of the appeal from the file of Shri Rahman to the file of Shri Nandkeolyar was given to the petitioners. There is also nothing on the record to show that the petitioners counsel was informed about the transfer of the appeal from the file of Shri Rahman to the file of Shri Nandkeolyar. Learned Counsel for the State has referred me to the order recorded at 2 p. m. on 23rd of January, 1976 where Shri Nandkeolyar had fixed the following day, i. e.24th of January, 1976 as the date for hearing of the appeal. In that order there is mention of a direction to inform ("suchit karen" ). In the order dated 24th of January, 1976 as well it is mentioned that the order-sheet had been shown to Shri Sarjug Prasad Sharma, learned Counsel for the petitioners. On the basis of these orders and on the basis of an endorsement on the margin of the order-sheet, it is submitted that the lawyer for the petitioners "had been informed not only about the transfer of the appeal but also about the date fixed for hearing of the same in the court of Shri Nandkeolyar. On the basis of these orders and on the basis of an endorsement on the margin of the order-sheet, it is submitted that the lawyer for the petitioners "had been informed not only about the transfer of the appeal but also about the date fixed for hearing of the same in the court of Shri Nandkeolyar. The signature ot Shri sarjug Prasad Sharma on the margin of the order-sheet is dated 24th of January, 1976, i. e. the date on which the appeal was heard ex parte. 6. I have mentioned the facts in some details as, in my opinion, they speak for themselves. On the facts mentioned above, it is impossible to contend that opportunity was actually given to the petitioners for being heard in their appeal. Shari Nandkeolyar had fixed a date for hearing of the appeal within a few days of its transfer to his file and even though the attempt to contact the lawyer for the petitioners had failed, he did not hesitate to list the appeal for hearing on the very next day. This was all the more objectionable when it was seen that the appeal had once been heard in full and a date for judgment had been fixed and the petitioners could have no reason to imagine that the appeal was likely to be heard a second time by another court. I have no hesitation in holding, therefore, that hearing had been denied to the petitioners in the appeal and if I had not agreed with the submission of the petitioners on the other point, namely, that the trial itself had been vitiated for want of sanction of the State Government, I would have remanded the lower appellate court for re-hearing the appeal 7. As it is, I shall presently point out that the trial of the petitioners had been vitiated for want of sanction under section 96 of ths Act. As it is, I shall presently point out that the trial of the petitioners had been vitiated for want of sanction under section 96 of ths Act. Sec.96 reads thus-- "no Civil Court shall try any suit against the Government in respect of anything done, or alleged to have been done, in pursuance of this act, and, except with previous sanction of the State Government, no magistrate shall take cognizance of any charge made against any excise Officer under this Act or any other law relating to the execise revenue or made against any other person under this Act, unless the suit or prosecution is instituted within six months after the date of the act complained of". For a proper appreciation of submissions made on behalf of the pititioners certain dates should be given. The occurrence is said to have taken place on 27th of July, 1967. On the same date a first information was lodged at the police station. A charge-sheet was submitted after investigation which was received before the Magistrate on 27th of September, 1969. The charge-sheet is dated 31st of August, 1969. On 27th of September, 1969 the Magistrate took cognizance of the offence. Learned Counsel for the petitioners has contended that the previous sanction of the State Government was essential in this case before the magistrate could have taken cognizance as the prosecution was instituted beyond six months after the date of occurrence. Admittedly, no such sanction has been obtained in this case and, therefore, it is submitted that the learned Magistrate had no jurisdiction to take cognizance of the offence against the petitioners and the entire trial has been vitiated. 8. Learned Counsel for the State contends that the prosecution should be held to have been instituted on the date the first information report was lodged with the police, i. e. on 27th of July 1967 which was the date of the occurrence. In this view of the matter, it is contended that, no sanction of the State government was necessary in this case. A question, therefore, arises as to when the prosecution can be said to have been instituted against the petitioners. Similar question arose before this Court in Criminal Revision 1340 of 1974 (Deoki Singh v. The Sate of Bihar, which was decided by me on 12th of March, 1977. A question, therefore, arises as to when the prosecution can be said to have been instituted against the petitioners. Similar question arose before this Court in Criminal Revision 1340 of 1974 (Deoki Singh v. The Sate of Bihar, which was decided by me on 12th of March, 1977. Relying upon a decision of the Supreme Court in the case of Jamuna Singh V/s. Bhadai Sah air 1964 SC 1541 ), I held that prosecution can be said to have been instituted on the date the Magistrate has taken cognizance of the offence. Learned Counsel for the State contended that the view taken in that case was not correct. I have re examined the matter and I find no reason to take different view on the question from what I had taken on the last occasion. I am tempted once more to refer to some of the observations of the Supreme Court in Jamuna Singhs case (supra) which are as follows : the Code does not contain any definition of the words institution of a case. It is clear however and indeed not disputed that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. . . . . . . . . . . . "an examination of these provisions makes it clear that when a magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence a case is instituted in the Magistrates Court and such a case is one instituted on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in writing of such facts made by any police officer it is a case instituted in the Magistrates Court on a police report". It would, therefore, be noticed that the Supreme Court held that a case can be said to be instituted only when cognizance of the offence is taken by the magistrate. It is true that in section 96 of the Act the expression used is "prosecution is instituted" and not "case is instituted". In my opinion, however, in contest of a criminal case a case can be said to be instituted only when the prosecution is instituted. 9. It is true that in section 96 of the Act the expression used is "prosecution is instituted" and not "case is instituted". In my opinion, however, in contest of a criminal case a case can be said to be instituted only when the prosecution is instituted. 9. The expression "institution of prosecution" has been used in section 132 of the Code of Criminal Procedure, 1898 (to be now called the Code), it provides, into inter alia that no prosecution against any person for any act purporting to be done under Chapter IX of the Code shall be instituted in any criminal court except with the sanction of the State Government. The proviso to sub-section (3)lays down that no such prosecution shall be instituted in any criminal court against any officer or soldier or airman in the armed force except with the sanction of the Central Government. This section also came up for consideration before the Supreme Court in the case of Nagraj V/s. State of Mysore, AIR 1964 sc 269 The Supreme Court was referring to the distinguishing feature of section 79 of the Indian Penal Code and section 132 of the Code. Raghubar Dayal, J. , who spoke for the Court observed thus: - "section 79, Indian Penal Court deals with circumstances which, when provedmakes acts complained of not an offence. The circumstances to be established to get the protection of section 132, Criminal procedure Code and not circumstances which make the acts complained of no offence, but are circumstances which require the sanction of the Government in the taking cognizance of a complain with respect to the offences alleged to have been committed by the accused". I am laving emphasis to the expression "in the taking of cognizance of a com-plaint used in the aforesaid observation. I have no doubts in my mind that execution can be said to have been instituted against an accused only when cognizance is taken by the Magistrate of the offence complained of. In the instant case as I have already pointed out, the occurrence had taken place on the 27th of July 1967 and cognizance was taken more than two years later, i. e. on 27th of September, 1969. In the instant case as I have already pointed out, the occurrence had taken place on the 27th of July 1967 and cognizance was taken more than two years later, i. e. on 27th of September, 1969. In fact, the charge-sheet itself was dated 31st of august 1969 Therefore, it was incompetent for the Magistrate to have taken cognizance of the offence against the petitioners unless there was a sanction of the State Government as provided in section 96 of the Act. Admittedly, no such sanction was obtained and, therefore, it follows that the trial itself of the petitioners has been completely vitiated. 10 In the result, criminal revision petitions are allowed, the convictions of the petitioners are set aside and they are acquitted.