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2005 DIGILAW 2783 (RAJ)

Gulam Hussain v. State of Rajasthan

2005-10-22

KRISHAN KUMAR ACHARYA

body2005
Judgment Krishan Kumar Acharya, J.-Heard learned Counsel for the parties. 2. Learned Counsel for the petitioner States that the alleged offence has been committed on 10.06.2002 and the charge-sheet has been filed against the petitioner on 07.07.2003. As per provision under Section 67(1)(2) of the Excise Act, 1950, no Court is competent to take cognizance of any offence under this Act unless prosecution is instituted within a period of one year after the date of commission of offence. No special sanction was issued by the State Government after the lapse of one year in the instant case. Learned Counsel for the petitioner States that learned Judicial Magistrate has applied the provision of Section 469, CrPC, which is not at all applicable in this case. Learned Judicial Magistrate has not considered this aspect of the matter in true prospect. Therefore, the order of learned Judicial Magistrate taking cognizance against the petitioner is bad in eye of law. Learned Counsel for the petitioner has cited before me the Judgment of Division Bench of this Court given in Gurcharan Singh vs. State of Rajasthan, reported in 2001 CrLR (Raj) 627 and argues that special law prevails on the general law, therefore, provision of Section 67 of the Excise Act shall prevail over the provision of Section 468, CrPC. 3. Learned Public Prosecutor supported the order passed learned Court below. 4. I have considered the rival arguments and gone through the order dated 112.2004 passed by learned Judicial Magistrate, City, Jodhpur and perused the Judgment cited by learned Counsel for the petitioner. In the Judgment of Gurcharan Singh vs. State of Rajasthan (Supra), the Division Bench held as under:- “For the foregoing reasons, we are of the opinion that the provisions of special law, namely, Rajasthan Excise Act, prescribing the period of limitation will prevail and it excludes the provisions of general law, namely Section 468, of Code of Criminal Procedure. Therefore, in our opinion, Section 468, CrPC, being of general law, the prosecution cannot take benefit of general provisions. We have already noticed that even at the time of presentation of the challan papers, limitation has expired; therefore, the Court was not authorized to take any cognizance or to accept the papers. Therefore, in our opinion, Section 468, CrPC, being of general law, the prosecution cannot take benefit of general provisions. We have already noticed that even at the time of presentation of the challan papers, limitation has expired; therefore, the Court was not authorized to take any cognizance or to accept the papers. The cognizance taken in this case is thus, clearly beyond the period of limitation, therefore, the revisional Court cannot direct and should not have directed the trial Magistrate to take cognizance as has been done by the revisional Court. 5. Looking to the above legal position as has been held by Division Bench of this Court, the provision of Section 67 of the Rajasthan Excise Act shall prevail over the provisions of Section 468, CrPC. The provisions as contained in the Code of Criminal Procedure will not prevail over the Rajasthan Excise Act. The provisions of Section 67 the Rajasthan Excise Act, 1950 are reproduced as under:- “67. Cognizance of offences.-(1) No Magistrate shall take cognizance of an offence punishable- .(a) under Section 54 or Section 57 or Section 59 or Section 63 except on his own knowledge or suspicion or on a complaint or the report of an Excise Officer; .(b) under Section 55 or Section 56 or Section 58 or Section 60 or Section 61 or Section 62 except on a complaint or the report of an officer not below the rank of the Excise Commissioner or an Excise Officer duly empowered in that behalf . Explanation.-The report of an Excise Officer under this sub-section shall be treated for all purposes of trial to be a report made by a police officer within the meaning of Clause (b) of Sub-section (1) of Section 190 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974). (2) Except with the special sanction of the State Government no Magistrate shall take cognizance of any offence punishable under this Act, unless the prosecution is instituted within a year after the date on which the offence is alleged to have been committed.” 6. Thus, looking to the provision of Section 67(2) of the Rajasthan Excise Act, this special provision will also prevail over the provision of Section 469, CrPC, also. There is specific mention that the prosecution should be instituted within one year from the date of commission of offence. Thus, looking to the provision of Section 67(2) of the Rajasthan Excise Act, this special provision will also prevail over the provision of Section 469, CrPC, also. There is specific mention that the prosecution should be instituted within one year from the date of commission of offence. Learned Magistrate has also taken the shelter of Section 469, CrPC, and he has taken the cognizance, which is also not correct on the ground that under the provisions of Section 67 of the Excise Act, limitation commences from the date of commission of offence and not from the date of knowledge. Therefore, the special provision will prevail over the general provisions of Section 469, CrPC. Having gone through the Judgment passed by Division Bench of this Court in Gurcharan Singh vs. State of Rajasthan (Supra), as also the provision of Section 67 (2), it is clear that the limitation commenced from the date of the offence and no cognizance could have been taken after one year if sanction is not taken. In the present case, the cognizance has been taken after expiry of one year from the date of commission of the offence and no sanction was also taken, therefore, the cognizance taken in this case is clearly beyond the period of limitation. Therefore, in view of above, the order passed by learned Judicial Magistrate taking cognizance against the petitioner is not according to law and the same is liable to be quashed. 7. Accordingly, this misc. petition is allowed and the order dated 112.2004 passed by Judicial Magistrate, Jodhpur City, Jodhpur taking cognizance against the petitioner, is quashed and set aside.