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2006 DIGILAW 646 (PNJ)

Sohan Lal v. State Of Punjab

2006-02-22

NIRMAL YADAV

body2006
Judgment Nirmal Yadav, J. 1. Vide this petition, the petitioners have basically challenged the power of the trial Court to take cognizance of the offences alleged against the petitioners on the basis of investigation carried out after expiry of six months as provided under Section 167(5) of the Code of Criminal Procedure (in short the Code). 2. The allegation against the petitioners firstly, was that they were found in possession of 2000 litres high diesel oil without any permit or licence and thereby contravened the provisions of Punjab Light Diesel Oil and Kerosene Dealers Licences Order, 1970 and secondly, that petitioners had not displayed the stock position of the high diesel oil. Alleging the aforesaid offences, FIR No. 32 dated 11.3.1988, under Section 7 of the Essential Commodities Act, 1955 (in short the Act) was registered against the petitioners at Police Station Jagraon, District Ludhiana. It is pleaded that police was not able to put challan in Court for almost 3 years and challan was presented on 6.2.1991. It is further pleaded that charges framed against the accused on the basis of the investigation conducted beyond six months, are contrary to the provisions of Section 167(5) of the Code and, therefore, the same cannot be entertained. Thus, the entire trial is vitiated. 3. In the reply by way of affidavit of Jaswant Singh, Inspector, SHO, Police Station City Jagraon, filed on behalf of State, it has been stated that delay in filing challan in the Court was on account of extra-ordinary circumstances viz. prevalence of terrorism in the State at that time. It is further stated that no limitation for filing challan has been prescribed. There is no provision of discharge in such a case. 4. I have heard the learned counsel for the parties and perused the material on record. 5. Learned counsel for the petitioners argued that the Special Court cannot entertain and act on a charge-sheet or a police report submitted under Section 173(2) of the Code on the basis of investigation conducted after expiry of six months as provided under Section 167(5) of the Code. He further argued that the cases under the Act being triable in summary manner should be tried according to the procedure prescribed for summons-cases in the Code. He further argued that the cases under the Act being triable in summary manner should be tried according to the procedure prescribed for summons-cases in the Code. Thus, a Special Court is empowered by Clause (c) of Section 2AA(1) of the Act to exercise same powers which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code and, therefore, the provisions of Section 167(5) of the Code are fully attracted in the present case. He argued that Special Court can stop further investigation into an offence if investigation is not concluded within a period of six months from the date of arrest of the accused unless for special reasons and in the interest of justice the continuation of investigation beyond that period is necessary. It is argued that prosecution has nowhere stated that any permission of the Special Court was sought to continue with the investigation after expiry of six months. In support of his arguments, learned counsel referred to a decision of the Apex Court in State of West Bengal v. Falguni Dutta and another, 1993(2) Recent Criminal Reports 431 (SC). It was further argued that every citizen has a right to speedy trial of the case pending against him, which is also in public interest. The FIR was registered in the year 1988 and challan was presented on 6.2.1991 and charges were framed on 6.4.1991. Even upto 6.4.1993 when passing of final order was stayed by this Court, no effective proceedings had been undertaken. The sword of trial to-be-conducted has been hanging over the petitioner for the last 17-18 years. Thus, the delay in completion of proceedings has caused a grave prejudice to the petitioners. 6. On the other hand, learned State counsel argued that the provisions of Section 167(5) of the Code of Criminal Procedure are not attracted to the present case as alleged offences are to be tried under the special Act. It is further submitted that the investigation conducted beyond six months without prior permission of Magistrate does not automatically disentitle the police from filing the charge-sheet. Any irregularity in the investigation does not vitiate the cognizance of offence taken by the Court. 7. It is further submitted that the investigation conducted beyond six months without prior permission of Magistrate does not automatically disentitle the police from filing the charge-sheet. Any irregularity in the investigation does not vitiate the cognizance of offence taken by the Court. 7. On a careful consideration of the submissions and the material on record, I am of the view that proceedings in the instant case need to be quashed as permitting further prosecution of the petitioners in the facts and circumstances of the case, would amount to travesty of justice and a ritual formality. Undisputedly, the FIR was registered on 11.3.1988 and challan was presented on 6.2.1991 i.e. almost after three years. The argument of learned State counsel that provisions of Section 167(5) of the Code are not attracted in the case in hand, cannot be accepted, as Section 12AA(1)(a) of Act clearly lays down that all offences under this Act shall be triable only by the Special Court constituted for the area in which offence has been committed and that all the offences under this Act shall be triable in a summary way. Since the case is triable as summons-case, the provisions of Section 167(5) of the Code are fully attracted. The Apex Court in Falguni Duttas case (supra), has held as under :- "...... Therefore, the Special Court can stop further investigation into the offence if the investigation is not concluded within a period of six months from the date of arrest of the accused person unless for special reasons and in the interest of justice the continuation of the investigation beyond that period is necessary. In the present case the officer making the investigation had not sought the permission of the Special Court to continue with the investigation even after the expiry of six months. 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 the Act 18 of 1981 and the introduction of Section 12AA the power conferred on the Magistrate under Section 167(5) of the Code is exercisable by the Special Court constituted under Section 12A of the Act". 8. Both the High Courts of Calcutta and Andhra Pradesh have taken the view that after the amendment of the Act by the Act 18 of 1981 and the introduction of Section 12AA the power conferred on the Magistrate under Section 167(5) of the Code is exercisable by the Special Court constituted under Section 12A of the Act". 8. I am of the view that instant case is squarely covered by the decision of the Apex Court in Falguni Duttas case (supra). In the reply on behalf of the State it has nowhere been mentioned that investigation has been completed within six months and charges framed are based on that investigation. 9. In view of the above, the petition in allowed and impugned proceedings undertaken on the basis of FIR No. 32 dated 11.3.1988, under Section 7 of the Essential Commodities Act, 1955 , are hereby quashed.