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Andhra High Court · body

2001 DIGILAW 786 (AP)

B. Savarappa v. State Of A. P.

2001-07-26

D.S.R.VERMA

body2001
D. S. R. VARMA, J. ( 1 ) THIS Criminal appeal is filed challenging the judgment dated 25-9-1995 passed by the court of the Special Judge of Trial of Cases under Essential Commodities Act-cum-III additional Metropolitan Sessions Judge, hyderabad in S. T. C. No. 12 of 1993. ( 2 ) A-1 to A-4 were charged for violation of the provisions under Clause 7 (a) (l) (2) (b) of a. P. Rice Procurement (Levy) Order, 1984. Clause 16 of the said Order, Conditions 3 (1) (a to d), 4,5,6,7,9,10 and 12 of the Licence issued under Clause 3 of the A. P. S. C. D. (L and D) Order, 1982, Conditions 5,7 and 8 of the permit issued by the Collector mahaboobnagar, which are punishable under Sections 7 and 8 of the Essential commodities Act, 1955. The Court below, on evidence, found A-1 guilty for the offences under Clause 3 of the A. P. S. C. D. (L and D) order, 1982 and Clause 7 of the A. P. Rice procurement (Levy) Order, 1984 read with section 3 (2) (a) and punishable under section 7 (l) (a) (ii) of the Essential commodities Act and sentenced him to undergo R. I. for two years and imposed a fine of Rs. 5,000/- and in default to suffer S. I. for six months. Further on evidence, the court below found A-2 to A-4 guilty for the offences under Section 8 read with Section 7 of the Essential Commodities Act for abetment contravening the above provisions and sentenced them to suffer R. I. for one year each and also imposed a fine of rs. 2,000/ each and in default, directed them to suffer S. I. for three months each. Aggrieved by the order of conviction, A-1 to a-4 have preferred this appeal. ( 3 ) THE case of the prosecution in brief is that A-l is the proprietor of M/s. Santosh rice Mill. A-2 and A-3 are the clerks of the said mill and A-4 is the driver of the lorry bearing No. APQ 8303, in which the Essential commodities were transported. ( 4 ) THE further case of the prosecution is that the police intercepted the said lorry being driven by A-4, belonging to A-l at kms. Stone No. 4/37 and 6/37 on narayanapet to Saidapur Road, which is a. P. State border, on 6-5-1990. ( 4 ) THE further case of the prosecution is that the police intercepted the said lorry being driven by A-4, belonging to A-l at kms. Stone No. 4/37 and 6/37 on narayanapet to Saidapur Road, which is a. P. State border, on 6-5-1990. On verification it was found that A-l was transporting 100 quintals of rice from narayanapet to Bijapur of Karnataka State. On enquiry A-4 stated that the rice was loaded in the presence of A-2 and A-3 at a-1 rice mill and that A-1 handed over the permit papers to him and that A-3 is accompanying him. ( 5 ) THE further case of the prosecution is that on verification of the permit it revealed that A-1 was doing clandestine business in rice and broken rice with the assistance of a-2 to A-4. On further verification it was also found that there was variation of stock when verified with the ground balance. Therefore, a-2 to A-4 were arrested on 7-5-1990 and seized the available ground balance from the mill and also seized the loaded lorry. After completion of investigation, the charge- sheet was filed and on 18-6-1993 the learned special Judge took cognizance of the offence and on evidence, convicted them as stated above. ( 6 ) IN order to prove its case, the prosecution examined P. Ws. 1 to 5 and got marked Exs. P-1 to P-31. On behalf of the defence, no witness was examined and also no document was marked. ( 7 ) THE case of the accused is of total denial. ( 8 ) P. W. 1 was the Deputy Tashildar during the relevant time and he accompanied the Vigilance Inspector to the jalalpur Check Post. P. W. 2 is the Attender working in Jalalpur Civil Supplies Check post. P. W. 3 is a hamali working in Santosh rice Mill of A-1 and P. W. 4 is the inspector of police, Vigilance Cell who verified the investigation and P. W. 5 is the Inspector of police, Vigilance, Mahaboobnagar. ( 9 ) FROM the material on record, it is evident that A-2 to A-4 were arrested on 7-5-1990 and A-1 was arrested on 16-5-1990. The charge-sheet was filed on 17-5-1993 and the Special Judge had taken cognizance of the offence on 18-6-1993. ( 10 ) THE learned Counsel appearing for the accused Sri Vinod Kumar Deshpande relying on Section 167 (5) of Cr. The charge-sheet was filed on 17-5-1993 and the Special Judge had taken cognizance of the offence on 18-6-1993. ( 10 ) THE learned Counsel appearing for the accused Sri Vinod Kumar Deshpande relying on Section 167 (5) of Cr. P. C. submitted at the Bar that the investigation could not be completed within the stipulated period of six months from the date of the arrest of the accused and inasmuch as there was no order by the Magistrate stopping the further investigation into the offence, the evidence that was collected during the course of investigation after the expiry of six months from the date of the arrest, cannot be taken into account for the purpose of framing the charge against the accused. However, he further submitted that this principle is not applicable only when the magistrate extends the time for special reasons, beyond the period of six months in the interest of justice, on an application made by the Investigating Officer. According to him the arrest was effected on 7-5-1990 in respect of A-2 to A- 4 and on 16-5-1990 in respect of A-l, and the charge- sheet was filed on 17-5-1993. He further submitted that if the investigation was completed within the period of six months from the date of arrest of the accused, the charge sheet could and should have been filed some where in the month of January, 1991 or within a reasonable period thereafter. But since the charge-sheet was filed on 17-5-1993 and the congnizance was taken on 18-6-1993 by the Special Judge, it implies that the investigation could not be completed till the date of filing of the charge- sheet i. e. , nearly for about three years. ( 11 ) IN view of the above submissions, it is necessary to extract sub-section (5) of section 167 of Cr. P. C. as under: if in any case triable by a Magistrate as a summons case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. A plain reading of the above provision makes it clear that it is mandatory in nature and that in a case triable by a magistrate as a summons case, the investigation has to be concluded within a period of six months from the date of arrest of the accused. In the event of failure of concluding of investigation, the Magistrate shall pass an order stopping further investigation into the offence, unless Investigating Officer satisfies the Magistrate that for special reasons and in the interest of justice, the continuation of investigation beyond the period of six months is necessary. In the instant case, it is not in dispute that no order was passed by the Special Court directing the Investigating Officer to stop the further investigation immediately after the completion of six months from the date of the arrest of the accused, nor did the Investigating Officer approach the Special Court seeking extension of time to continue the investigation beyond the period of six months. ( 12 ) THEREFORE, the question that arises for consideration is what is effect of non- compliance of the mandatory provisions of section 167 (5) of Cr. P. C. ( 13 ) THE accused were charged of the offences punishable under Essential commodities Act. Section 12-AA deals with the offences triable by Special Court and it is necessary to extract sub-sections (b), (c) and (f) of Section 12aa (1), which are relevant for the purpose of present case, as under: (a ). . P. C. ( 13 ) THE accused were charged of the offences punishable under Essential commodities Act. Section 12-AA deals with the offences triable by Special Court and it is necessary to extract sub-sections (b), (c) and (f) of Section 12aa (1), which are relevant for the purpose of present case, as under: (a ). . (b) whereapersonaccusedoforsuspected of the commission of an of fence under this Act is forwarded to a Magistrate under sub-section (2) or subsection (2a) of Section 167 of thecode, such Magistrate may authorize the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial magistrate and seven days in the whole where such Magistrate is an executive Magistrate: provided that where such Magistrate considers: (i) When such person is forwarded to him as aforesaid; or (ii) upon or at any time before the expiry of the period of detention authorized by him; that the detention of such person is unnecessary, he may, if he is satisfied that the case falls under the proviso to section 8, order the release of such person on bail and if he is not so satisfied, he shall order such person to be forwarded to the Special Court having jurisdiction; (c) the Special Court may, subject to the provisions of clause (d) of this subsection, exercise, in relation to the person forwarded to it under clause (b), the same power which a magistrate having jurisdiction to try a case may exercise under Section 167 of code in relation to an accused person in such case who has been forwarded to him under that section; (d ). . . . . . (e ). . . . . (f) all offences under this Act shall be tried in a summary way and the provisions of Sections 262 to 265 (both inclusive) of the Code shall, as far as may be, apply to such trial: provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the special Court to pass a sentence of imprisonment for a term not exceeding two years. ( 14 ) A reading of the above provisions makes it clear that the accused, when forwarded to the Magistrate under subsection (2) or sub-section (2a) of Section 167 of Cr. ( 14 ) A reading of the above provisions makes it clear that the accused, when forwarded to the Magistrate under subsection (2) or sub-section (2a) of Section 167 of Cr. P. C, the Magistrate may authorize the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days, in case such Magistrate is a judicial Magistrate and if the Magistrate is an Executive Magistrate, he shall authorize the detention for a period for seven days, and if the Magistrate feels that the detention of such person is unnecessary, he may, if he is satisfied that the case falls under the proviso to Section 8, order the release of such person on bail and if he is not satisfied, shall forward the accused person to the Special Court having jurisdiction and such Special Court has to try the case exercising its jurisdiction under Section 167 of Cr. P. C. and further sub-section (f) of Section 12 (AA) (1) clarifies that the trial should be in a summary way and the procedure contemplated under sections 262 to 265 shall have to be applied as far as may be applicable for such trial. In this connection, it is necessary to extract section 262 of Cr. P. C. as under, since it is relevant for the purpose of present case: (1) In trials under this Chapter, the procedure specified in this Code for the trial of summons case shall be followed except as hereinafter mentioned. (2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any convictions under this Chapter. A reading of the above provisions makes it clear that under sub-section (1), in trial of cases under that chapter, the procedure contemplated for the trial of summons case has to be followed, with certain exceptions made under sub-section (2) of Section 262 and it makes abundantly clear that in summary trial the sentence of imprisonment shall not exceed beyond the period of three months. However, a comprehensive reading of Section 262 makes it clear that a summary trial means a trial applicable to summary cases and the sentence of imprisonment shall not exceed beyond the period of three months. But the punishment that can be awarded under the Essential commodities Act, is beyond the period of three months. However, a comprehensive reading of Section 262 makes it clear that a summary trial means a trial applicable to summary cases and the sentence of imprisonment shall not exceed beyond the period of three months. But the punishment that can be awarded under the Essential commodities Act, is beyond the period of three months. Therefore, sub section (f) of section 12aa (1) of the said Act makes it clear that the offences under that Act shall be tried in a summary way in accordance with sections 262 to 265 of Cr. P. C. as far as may be applicable. ( 15 ) THOUGH the sub-section (f) of Section 12-AA (1) of Essential Commodities Act postulates that the trial has to be conducted in a summary way and the procedure applicable to summons case as contemplated under Section 262 of the Code, has to be followed. In other words what is contemplated by sub-section (f) of section 12-AA (l)of the Essential commodities Act is that, the trial has to be in a summary way as contemplated under section 262 of Cr. P. C. , removing the bar incorporated in sub-section (2) of Section 262 with regard to the term of sentence beyond three months. ( 16 ) IN this connection, it is imperative to look into sub-section (5) of Section 167 of cr. P. C. once again. The said provision specifically contemplates that in a case triable by a Magistrate as a summons case, if the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence, unless the officer making the investigation satisfies the magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary. A plain reading of subsection (5) of Section 167 shows that is a mandatory provision. The introduction of this provision by the Legislature could be, because in cases of offences punishable under Essential Commodities Act, since the trial has to be conducted in a summary manner, the investigation should be concluded as expeditiously as possible, imperatively within six months. ( 17 ) IN similar circumstances, a Division bench of this Court in Public Prosecutor, A. P. High Court v. B. Anjaneyuylu observed at paragraph No. 9 of the judgment as under:. . ( 17 ) IN similar circumstances, a Division bench of this Court in Public Prosecutor, A. P. High Court v. B. Anjaneyuylu observed at paragraph No. 9 of the judgment as under:. . . The Special Courts which may be constituted under Section 12-A of the act are given exclusive jurisdiction to try the cases for offences under the Act. At the same time, Section 12-AA (1) (f) extracted above directs that all offences shall be tried in a summary way and the provisions of Ss. 262 to 265 of the Code shall, as far as may be apply to such trial. By the proviso sentence up to two years may be imposed in a summary trial by the Special Court for the offence under the Act. While under Sec. 202 code, a sentence up to a period of three months only may be imposed in a summary trial of the offences by the magistrates. In view of sub-sec. (1) (f) of sec. 12-A A, the cases shall be tried by the summary procedure and there is no option to apply any other procedure. To this extent the discretion given under sec. 260 (2) of the code to revert back to a warrantprocedure is superseded. In view of the scheme of the Amending Act the imposing of sentence of over two years under Sec. 7 is not permissible where special Courts are established, as they have to follow summary procedure for the period of the temporary Amendment. For both reasons, viz. , both under sec. 262 of the Code, a summary trial is to be by a summons case procedure, and also because the temporary Act provides for a maximum period of two years sentence only where cases are tried by the Special Courts, the procedure for warrant cases will not apply. ( 18 ) HOWEVER, at paragraph No. 13 of the said judgment, it was further observed as under:. . . . . . The introduction of S. 1673) in the code, cannot have the effect of invalidating the investigation done within the period of six months or enabling the Court to stopping the filing of police report under S. 173 (2 ). If the investigation done during the period of six months discloses and offence, a police report may be founded on it and the court can take cognizance of the same. If the investigation done during the period of six months discloses and offence, a police report may be founded on it and the court can take cognizance of the same. ( 19 ) THE Division Bench of this Court in the decision cited 1 supra, relying on the decision of the Supreme Court in Hussainam khatoon v. State of Bihar further held at paragraph No. 14 that Section 468 provides for the bar on the power to take cognizance of an offence after the expiry of the period of limitation mentioned in it. Section 468 of cr. P. C. amplifies the significance of the application of principles of limitation with regard to certain cases. Section 167 (5) of cr. P. C. is one such provision, prescribing the period of limitation with regard to completion of investigation within a prescribed period, in cases, which are triable in a summary way. ( 20 ) THE Apex Court in the decision reported in State of west Bengal v. Falguni dutta, observed at paragraph No. 7, at page no. 295 as under:. . . . . . . . The object of this sub-section clearly is to ensure prompt investigation into an offence triable as summons case to avoid hardship and harassment to the accused person. Both the High Courts of Calcutta and Andhra Pradesh have taken the view that after the amendment of the Act by act 18 of 1981 and the introduction of section 12-AA the power conferred on the Magistrate under Section 167 (5) of the Code is exercisable by the Special court constituted under Section 12-A of the Act. We also concur with the High court of Calcutta that the two decisions rendered by the learned Single Judges of that Court earlier in point of time did not lay down the correct law. Similarly the division Bench of the High Court of andhra Pradesh was also right in holding that sub-section (5) of Section 167 of the code would be applicable to prosecutions under the Act triable by the special Court. ( 21 ) WHILE coming to the above conclusions, the Hon ble Supreme Court has also taken into consideration the Division bench Judgment of this Court cited 1 supra. ( 21 ) WHILE coming to the above conclusions, the Hon ble Supreme Court has also taken into consideration the Division bench Judgment of this Court cited 1 supra. ( 22 ) THEREFORE, in view of the law laid down by the Apex Court in the decisions cited 2 and 3 supra and also the decision of this Court in 1 supra, and also a conjoint reading of Sections 262 and 167 (5) of Cr. P. C. and Section 12-AA of the Essential commodities Act it is clear that sub-sec. (5) of Section 167 can be invoked by a Special court, and as contemplated thereunder "shall" make an order stopping the investigation immediately after the expiry of six months, excepting for the special reasons offered by the Investigating Officer for extension of time. ( 23 ) NOW coming to the case on hand, as already pointed out, the arrest of A-2 to A-4 was effected on 7-5-1990 and A-1 on 16-5-1990 and the charge-sheet was filed on 17-5-1993 i. e. , after a period of three years. What had happened in the first six months from the date of arrest and to what extent the investigating Officer could proceed with the investigation during the first six months is not on record. However, as pointed out by the Division Bench of this Court in the decision cited 1 supra the investigation and the result thereof during the first six months period from the date of arrest of the accused would not be vitiated or cannot be eliminated from the area of investigation for the purpose of filing charge-sheet and also does not vitiate the very trial. ( 24 ) THEREFORE, for the foregoing reasons, I pass the order as under: the impugned judgment is set aside and the matter is remitted back to the Court below. Further the Court below is directed to entertain the police report limiting the investigation to the extent of first six months from the date of arrest of the accused and proceed with the trial afresh from that stage onwards and complete the same as expeditiously as possible, in accordance with law. ( 25 ) WITH the above direction, the criminal appeal is allowed and the bail bonds executed by the accused stand cancelled.