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Rajasthan High Court · body

1998 DIGILAW 742 (RAJ)

Abdul Hafiz v. State of Rajasthan

1998-07-04

AMRESH KUMAR SINGH

body1998
Honble SINGH, J.–Heard the learned counsel for the petitioner and the learned Public Prosecutor. (2). This petition under Section 482 of the Cr.P.C. has been filed with a prayer that the proceedings of Criminal case No.324/93 under Section 203 of the Rajasthan Municipalities Act, 1959 (hereinafter called the Act of 1959) pending in the Court of the learned Addl. Chief Judicial Magistrate, Makarana be quashed. (3). Learned counsel for the petitioner has challenged cognizance of the offence under Section 203 of the Act on two grounds. (1) that in view of provison given in sub-section 18 of Section 203 of the Act, the criminal Court could not take cognizance of the offence unless there is a complaint filed by the Municipal Board and (2) that in sub-section 19 of Section 203 of the Act, the investigation ought to have been conducted by an officer not below the rank of Dy. Supdt. of Police and in the instant case, the investigation was conducted by the S.H.O. of P.S. Makarana who was of the rank of Asstt. Sub Inspector of Police. (4). A perusal of the certified copy of the final report submitted by the S.H.O. of the P.S. Makarana after conducting investigation of FIR. No.228/92, shows that on the basis of the FIR. sent by the Addl. Tehsildar, Makarana, F.I.R. No.228/92 was registered at the P.S. Makarana in respect of offence under Section 203 of the Act. A charge sheet under Section 173(2) of Cr.P.C. was submitted in the Court of the Addl. Chief Judicial Magistrate, Makarana. On the basis of that charge sheet, the learned Addl. Chief Judicial Magistrate, Makarana took cognizance of the offence under Section 203 of the Act and directed the issue of bailable warrants afresh against the accused persons. (5). In support of his contention, learned counsel for the petitioner submitted that in view of the provison given in sub Section 18 of Section 203 of the Act, the Criminal Court cannot take cognizance of the offence under Section 203 of the Act unless there is a complaint filed by the Municipal Board. Learned counsel for the petitioner has placed reliance on the decision given by the learned single Judge of this Court in Nijamuddin & Ors. vs. State of Rajasthan & Anr. (1). In that case, Honble Mr. Learned counsel for the petitioner has placed reliance on the decision given by the learned single Judge of this Court in Nijamuddin & Ors. vs. State of Rajasthan & Anr. (1). In that case, Honble Mr. Justice B.R. Arora observed at page No. 2347.; ``Thus, according to s.265 of the Act, the power to prosecute vests in the Municipal Board and not with any of the private individual. It is only the Municipal Board which can file a complaint for the contravention of any of the provisions of the Rajasthan Municipalities Act, Rules or the Bye-laws S.203 of the Act deals with the encroachment or obstruction made on the public land. Criminal justice is an instrument of social control and its object is to protect the society from the internal disorder or disruption. The object of the system is not only to ensure social harmony and maintaining the law and order and its enforcement but, also, to ensure equity of justice. The criminal law is not meant to be used as an instrument of wrecking personal vengeance against the person who, according to him, has caused injury to him. The object of the system is not only to ensure social harmony and maintaining the law and order and its enforcement but, also, to ensure equity of justice. The criminal law is not meant to be used as an instrument of wrecking personal vengeance against the person who, according to him, has caused injury to him. In such a matter, the aggrieved party is the Municipal Board, which is the custodian of the citizen living in the Municipal areas and has to see that no encroachment be made on the Public property and to follow the procedure provided under the provisions of the Act for the removal of the encroachment and, therefore, it is for the Municipal Board to take all necessary steps for the clearance of the obstruction or the encroachment made by an individual for bringing the person to the light who has acted in contravention of the provisions of the Act or the rules against the interests of the residents of the Municipal areas and to file a complaint or to take all the necessary steps but an individual cannot be allowed to file a complaint and to lunch prosecution for vindicating his personal grievances and, therefore, on account of any personal grievances or for personal gains or with any oblique motive or consideration if any complaint has been filed by an individual for launching the prosecution then the same deserves to be dismissed at the threshold.The cognizance has been taken by the learned Magistrate on the complaint filed by an individual complainant which has been maliciously instituted with an oblique motive to wreck personal vengeance again- st the petitioner(s). The proceedings, therefore, observe to be quashed as being mala fide and the order dated 14.10.93, passed by the learned Magistrate, taking cognizance against the petitioners, deserves to be quashed and set aside." (6). A perusal of the observation made by the Honble Mr. Justice B.R. Arora shows that the decision in that case was based on the special facts and circumstances of the case and it cannot be said that his Lordship intended to lay down the law that in no case the criminal Court can take cognizance of the offence under Section 203 of the Act unless there is a complaint filed by of the Municipal Board. Sub Section 18 of Section 203 of the Act reads :- ``Whoever, being an employee of the Board, specifically entrusted with the duty to stop or prevent the encroachment or obstruction punishable under this section, wilfully or knowingly neglects or deliberately omits to stop or prevent such encroachment or obstruction, shall, on conviction, be punished with simple imprisonment for a term which may extend to one month or fine which may extend to one thousand rupees or with both. Provided that no Court shall take cognizance against such employee for the offence punishable under the sub-section except with the previous sanction of the Board. (8). The use of the word ``against such employee in the proviso given below sub Section 18 of the Section 203 shows that the proviso is restricted in its application to the offences committed by the employees of Municipal Board, under sub-section 18 of Section 203 of the Act and does not apply to offences committed by persons other than the employee of the Municipalities. (9). The second submission made by the learned counsel for the petitioner has force in it. Sub-section 19 of the Section 203 clearly provides that ``No investigation of an offence under this Section shall be made by an officer below the rank of a Deputy Superintendent of Police. It is thus clear from the provisions contained in sub-section 19 of Section 203 that no police officer below the rank of Dy. S.P. can investigate an offence punishable under Section 203 of the Act. In the instant case, the investigation was conducted by an officer of the rank of Asstt. Sub Inspector. The charge sheet under Section 173 Cr.P.C. was also filed by him. In this view of the matter, there is no escape from the conclusion that investigation in the case was conducted by the A.S.I. of the Police, who was neither empowered to in- vestigate nor was empowered to submit the charge sheet. It does not appear from the record that the attention of the learned Addl. Chief Judicial Magistrate was attracted to this illegality. (10). It is true that an illegality or irregularity in conducting the investigation is not sufficient to quash the proceedings initiated by taking cognizance of the offence by the criminal Court. It does not appear from the record that the attention of the learned Addl. Chief Judicial Magistrate was attracted to this illegality. (10). It is true that an illegality or irregularity in conducting the investigation is not sufficient to quash the proceedings initiated by taking cognizance of the offence by the criminal Court. But it does not mean that in no case the proceedings can be quashed, even if, any serious illegality or irregularity in the matter is brought to the notice of the Court. Having regard to the facts and circumstances of the case and stage at which the matter is pending in the Court of learned Addl. Chief Judicial Magistrate, it will be just and proper to quash the proceedings initiated by taking cognizance of offence by the learned Addl. Chief Judicial Magistrate. The object behind sub-section 19 of the Section 203 of the Act is to ensure that the investigation must not be conducted by an officer of the rank not below the Dy. Supdt. of Police so that innocent persons may not be subjected to any harassment. (11). In H.N. Rishbud & Anr. vs. State of Delhi (2), the Honble Supreme Court considered the consequences of illegality committed during the investigation by the police. At page 203 of the AIR, His Lordship observed: ``The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is un-doubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not con- cerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 Cr.P.C. as the material on which cognizance is taken. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 Cr.P.C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal po- lice report is the foundation is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Cr.P.C. is one out of a group of sections under the heading ``Conditions requisite for initiation of proceedings. The language of the Section is in marked contrast with that of the other Sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not po- ssible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1), (Whether it is the one of the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, Cr.P.C. which is in the following terms is attracted........... If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the ille- gality in the investigation can be shown to have brought about a mis-carriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in `Prabhu vs. Emperor AIR 1944 PC 73(C) and `Lumbhardar Zutshi vs. The King, AIR 1950 PC 26(D). (12). What should be done by a Court when any defect or illegality committed in the investigation is brought to his notice was also considered by their Lordships of the Apex Court. (12). What should be done by a Court when any defect or illegality committed in the investigation is brought to his notice was also considered by their Lordships of the Apex Court. At page 204 of AIR, it was observed that :- "It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re- investigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice propriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Section 537, Cr.P.C. of making out that such an error has in fact occasioned a failure of justice. It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, explanation to Section 537, Cr.P.C. indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the pre-emptory provision which has been enacted on grounds of public policy for the benefit of such an accused. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the pre-emptory provision which has been enacted on grounds of public policy for the benefit of such an accused. It is true that the pre-emptory provision itself allows an officer of a lower rank to make the in- vestigation if permitted by the Magistrate. (13). Bearing in mind the general principles laid down by the Honble Supreme Court and taking note of the changes brought about by the Cr.P.C. 1973 and taking into consideration all the facts and circumstances of the case including the stage at which the case is pending, it appears to be just and proper that the order dated 29.10.93 passed by learned Additional Chief Judicial Magistrate, Makrana whereby the cognizance of offence under Section 203 of the Act was taken should be quashed and a direction be issued to the learned A.C.J.M. Makrana to pass appropriate orders for investigation of the case under Section 156(3) of the Cr.P.C. 1973, in conformity with the provisions of sub-section (19) of Section 203 so that investi- gation by an officer not below the rank of Deputy Superintendent of Police may be conducted in this case. It may be pointed here that in the Cr.P.C. of 1973 a definition of Police report has been given in 2(r) in the following terms :- ``(r) ``Police report means a report forwarded by a Police officer to a Magistrate under sub-section (2) of Section 173. (14). Because of this definition of police report, a Magistrate cannot take any cognizance under Section 190(1)(b) of Cr.P.C. unless there is a report submitted before him by a competent Police Officer under Section 173 (2) of the Cr.P.C. In the Criminal Procedure Code of 1898, the definition of police report was not given and, therefore, it was held in several cases that any report of the Police Officer submitted before a Magistrate was sufficient to enable the Magistrate to take cognizance under Section 190(1) (b) of the Cr.P.C.. To sum up in view of the definition of the Police report in Section 2(r) of the Cr.P.C. no Magistrate can take cognizance under Clause (b) of Section 190(1) of the Criminal Procedure Code, unless a report under Section 173 Cr.P.C is submitted by a officer competent to investigation into the offence and submit the report. It is necessary that he must have before him a report under Section 173(2) submitted by Police officer, who is competent to file such report. (15). In H.N.Rishbud & Anr. vs. State of Delhi (supra), the Honble Supreme Court has held that formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Sec.173 Cr.P.C. is a part of the investigation conducted by the Officer-in-charge of the police station. It shows that submission of a report u/S.173 Cr.P.C after the completion of investigation must be by the Police Officer, who is competent to investigate the case. (16). Under Section 157 Cr.P.C., the powers to conduct investigation vests in the Officer Incharge of the Police Station. Section 157 empowers the Officer Incharge of the Police station to himself proceed to the spot or depute an officer subordinate to him to go the spot for the sake of conducting investigation. The Officer Incharge of the police station, however cannot depute a Police Officer, who is superior in rank to him. His power to depute, conferred by sub-section (1) of Sec.157 Cr.P.C. can be used only in the case of an officer subordinate to him. If a Police officer, superior in rank to an officer Incharge of the Police Station wants to conduct investigation in any case, such Police Officer will have to act u/S. 36 Cr.P.C, which empowers the Police Officer, superior in rank to the officer Incharge of the Police Station to exercise the powers of the Officer Incharge the Police. (17). When the statute requires that a superior officer of the rank of Dy.S.P. or above should conduct the such investigation in a case, it is obvious that such superior Police Officer cannot act under the direction given by a inferior officer holding the post of Officer Incharge of the Police station. (17). When the statute requires that a superior officer of the rank of Dy.S.P. or above should conduct the such investigation in a case, it is obvious that such superior Police Officer cannot act under the direction given by a inferior officer holding the post of Officer Incharge of the Police station. Such police officer will have to act u/S. 36 Cr.P.C. and exercise the powers of the Officer Incharge of the police station for the purpose of conducting the investigation in the case, and therefore, the formation of opinion whether on the material collected during investigation, there is a case to place the accused before a Magistrate for trial or a final report should be filed, must also be formed by the superior officer conducting investigation in the case. (18). Since, the Dy.S.P. was the only officer competent to conduct the investigation in the case, it must be said that the Dy.S.P. could have conducted the investigation u/S. 36 Cr.P.C., which empowers superior police officer to exercise the powers of the Officer Incharge of the police station. Therefore, the formation of the opinion whether on the basis of the material collected by him, a charge sheet should be submitted or a final report should be submitted was an fact, which could be legally performed by the Dy.S.P., and therefore, the Dy.S.P. alone was the Police officer competent to file report u/S. 173 Cr.P.C.. In this view of the matter, the learned Judicial Magistrate could not have taken the cognizance of the offence u/S. 203 of the Rajasthan Municipalities Act on the report submitted by an officer inferior in rank to the Dy.S.P.. It is therefore, a fit case in which the order of taking cognizance by the learned Additional Chief Judicial Magistrate should be quashed. (19). With the above observations, the petition is allowed and the order passed by th learned Additional Chief Judicial Magistrate is hereby quashed and set aside. The learned Additional Chief Judicial Magistrate, Makrana is directed to pass an order u/S. 156(3) Cr.P.C. for investigation by the Police by an officer, who is competent to investigate the case in terms of Section 203(19) of the Act. (20). A copy of this order be sent to the learned Additional Chief Judicial Magistrate for information and necessary action.