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Allahabad High Court · body

2008 DIGILAW 1778 (ALL)

AZAD @ AZAD KHAN v. STATE OF UTTAR PRADESH

2008-08-26

IMTIYAZ MURTAZA, S.N.H.ZAIDI

body2008
JUDGMENT By the Court.—Impugned herein is the proceeding launched against the petitioner pursuant to F.I.R. dated 12.8.2008 registered at case crime No. 525 of 2008 under Sections 57 and 70 of the U.P. Minor, Minerals (Concession) Rules, 1963 and Section 379/411 of the I.P.C. P.C. Dildarnagar, District Ghazipur. 2. Heard learned Counsel for the petitioner and also learned A.G.A. appearing for the State authorities. 3. It would appear that the F.I.R. lodged refers to letter received from Deputy Collector Zamania Ghazipur that the accused named in the F.I.R. was indulging in illegal activities of excavations of sands and its sale and pursuant thereto, the police of P.S. Dildarnagar District Ghazipur raided the place and found the sands stored to the extent mentioned in the F.I.R. on the land belonging to Rustam which according to further allegation had been collected there for sale and the accused was indulging in illegal sale of the sands. It is mentioned that the accused had no valid licence for excavation or sale of the sands. Thereafter, F.I.R. was lodged in the case as stated supra at case crime No. 525 of 2008 under Rules 57 and 70 of the Minor, Minerals (Concession) Rules, and Section 379/411, I.P.C. 4. To begin with the learned Counsel for the petitioner referring to Section 22 of the Mines, Minerals (Regulation and Development) Act, 1957 canvassed that the Magistrate is not vested with the power to take cognizance on the basis of charge-sheet submitted by the Police. The learned Counsel further referred to Section 23-A and canvassed that the offences under the Act can be taken cognizance of on the basis of complaint by person authorized under Section 22 of the Act attended with further submissions that the offences for which the petitioner has been indicted is compoundable as would be apparent from Section 23-A of the Act and also the Rules framed thereunder. It is further canvassed that Rule 57 and Rule 70 of the Rules 1963 being non-cognizable offences, it is not permissible for the police to investigate the non-cognizable offence. Lastly, he argued that the F.I.R. lodged in the case be quashed in exercise of power under Article 226 of the Constitution of India. 5. Since learned Counsel for the petitioner has laid great stress on Sections 22 and 23-A of the Act, we feel called to quote the same as under : “22. Lastly, he argued that the F.I.R. lodged in the case be quashed in exercise of power under Article 226 of the Constitution of India. 5. Since learned Counsel for the petitioner has laid great stress on Sections 22 and 23-A of the Act, we feel called to quote the same as under : “22. Cognizance of offences.—No Court shall take cognizance of any offence punishable under this actor any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or State Government.” “23-A. Compound of offences-(1) Any offence punishable under this Act, or any rule made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorized under Section 22 to make a complaint, to the Court with respect to that offence, on payment to that person for credit to the Government of such sum as that person may specify : Provided that in the case of an offence punishable with fine only no such sum shall exceed the maximum amount of fine which may be imposed for that offence. (2) Where an offence is compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded, and the offender, in custody, shall be released forthwith.” 6. We have also glanced through Section 190 attended with section 155 of the Cr.P.C. alongwith Section 20 of the Mines, Minerals (Regulation and Development) Act, 1957. We have also glanced through Section 190 attended with section 155 of the Cr.P.C. alongwith Section 20 of the Mines, Minerals (Regulation and Development) Act, 1957. Section 155 of the Cr.P.C. as amended envisages (1) when information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer, the information to the Magistrate, (2) No police office shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial, (3) any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case, and (4) where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. 7. Before proceeding further, we would like to quip here as a prologue that the issue involved in this petition has suffered too much theorising and therefore it would be supererogatory on our part to go the whole hog discussing the various provisions on the point. It would suffice to say that the legal position on the point has since been streamlined by legion of decisions. Few of the decisions which are illuminating and apply on the basis of the ratio flowing therefrom to the facts of the present case may be dwelt upon. 8. Having examined the matter, it would appear from a perusal of the Rules 57 and 70 of the Rules, 1963 that the action contemplated in the Rules is in fact intended to eliminate private individuals or general public from initiating the prosecution (though the contention of the learned Counsel was on the lines that the provisions of the Minor, Minerals (Concession) Rules, 1963 purport to eliminate role of police from initiating the prosecution) and to insist that before cognizance is taken the complaint must emanate from a public servant. In this connection, we may refer to a decision of the Apex Court in Bhagwati Saran v. State of U.P., (1961) 3 SCR 563 , in which the Apex Court explained the nature of a report under Section 11 of the Essential Supplies (Temporary Powers) Act, 1946 which was a provision in the same words as in the case in hand. The Apex Court held that the purpose of Section 11 of the Essential Supplies Act, 1946 is to eliminate private individuals such as rival traders of general public from initiating the prosecution and to insist that before cognizance is taken, the complaint must emanate from a public servant. It was contended in that case that since the report in writing which the police officer makes under Section 11 of the E.C. Act, 1955 is not a charge-sheet under Section 173 of the Code, it must be equated to a complaint of facts under Section 190 (1)(a) of the Cr.P.C. It was further contended that while the offence under Section 420 of the IPC was triable under the procedure laid down in Sec. 251-A, Cr.P.C., the offence under Section 7 of the E.C. Act was triable under Section 252, Cr.P.C. The question substantially was who should launch the criminal prosecution. The Apex Court observed that where the law requires a report in writing by a public servant the requirements of the law are satisfied when a report is filed by a public servant who is also a police officer. The Apex Court further observed that where the police officer cannot investigate a non-cognizable offence without the permission of a Magistrate, he is not prevented by anything in the Code from investigating a non-cognizable offence alongwith a cognizable offence when the two arise from the same facts. The Apex Court also observed that police officer is a public servant. The aforesaid view was countenance in approval in Pravin Chandra Mody v. State of A.P., AIR 1965 SC 1185 and in para 6 of the said decision, the Apex Court held as under : “Section 156 (2) provides that where a police officer enquires into an offence under Section 156 (1) his action cannot be called into question on the ground that he was not empowered to investigate the offence. The enquiry was an integrated one, being based on the same set of facts. The enquiry was an integrated one, being based on the same set of facts. Even if the offence under the Essential Commodities Act may not be cognizable though it is not alleged by the appellant, it is non-cognizable, the police officer would be competent to include it in the charge-sheet under Section 173 with respect to a cognizable offence.” 9. The Apex Court also relied upon a decision with approval in Ram Krishna Dalmia v. State, AIR 1958 Pun 172. The crux of what has been held in the said decision is excerpted below : “The provisions of Section 155 (1), Criminal Procedure Code, must be regarded as applicable only in those cases where the information given to the police relates solely to a non-cognizable offence. Where information is given to the police of a cognizable offence and the case is registered regarding that offence, the investigating officer, while investigating the cognizable offence cannot possibly be debarred from investigating any subsidiary and non-cognizable offence which may arise out of the facts and can also include those latter cases in his main report under Section 173.” 10. Ultimately, the Apex Court in Pravin Chand Mody’s case (supra) held that “we entirely agree that both the offences if cognizable could be investigated together under Chapter XIV of the Code and also if one of them was a non-cognizable offence.” 11. In State of Orissa v. Sharat Chandra Sahu, AIR 1997 SC 1 , the Apex Court held the view that under Section 155 (4) of the Cr.P.C., the police can in case of complaint of cognizable and non-cognizable offences, investigate cognizable as well as non-cognizable offences irrespective of the fact as to who filed it. In para 12 of the said decision, the Apex Court held as under : “12. Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code of 1973. This was done to overcome the controversy about investigation of non-cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in sub-section (4). Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code of 1973. This was done to overcome the controversy about investigation of non-cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in sub-section (4). It is apparent that if the facts reported to the police disclose both cognizable and non-cognizable offences the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in sub-section (4) provides that even non-cognizable case shall, in that situation, be treated as cognizable.” 12. In the above decision, there was bar of Section 198, Cr.P.C. which deals with the prosecution for offences against marriage. Section 198 envisages that (1) no Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence. The above provisions set out the prohibition for the Court from taking cognizance of an offence punishable under Chapter XX of the I.P.C. The cognizance however can be taken only if the complaint is made by the person aggrieved by the offence. Clause (c) appended to the proviso to sub-section (1) provides that where a person aggrieved is the wife, a complaint may be made on her behalf by her father, mother, brother, sister son or daughter or other relations who are related to her by blood, marriage or adoption. In the said case, it would appear, complaint was made to Women’s Commission which in turn directed registration of the case, the High Court relying upon the provisions contained in clause (c) held that since the wife herself had not filed the complaint the Magistrate could not legally take cognizance of the offence. The Apex Court set aside the verdict holding that the High Court was clearly in error in quashing the charge under Section 494, IPC on the ground that the trial Court could not take cognizance of that offence unless complaint was filed personally by the wife or any other near relation contemplated by clause (c) of the proviso to Section 198 (1). It was further observed that the High Court forgot that the other offence namely offence under Section 498-A of the IPC was a cognizable offence and the police was entitled to take cognizance of the offence irrespective of the person who gave the first information to them. Then the Apex Court proceeded to refer to Section 155, Cr.P.C. particularly clause 4 of the said section. In para 11 of the said decision, the Apex Court observed that sub-section (4) of Section 155 creates a legal fiction and provides that although a case may comprise of several offences of which some are cognizable and others are not, it would not be open to the police to investigate the cognizable offences only and omit the non-cognizable offences. Since the whole case (comprising of cognizable and non-cognizable offences) is to be treated as cognizable, the police had no option but to investigate the whole of the case and to submit a charge-sheet in respect of all the offences, cognizable or non-cognizable both, provided it is found by the police during investigation that the offences appear, prima facie, to have been committed. In the facts and circumstances of the case, it would suffice to say that the above case bears close similarly to the facts of the present case. 13. The other case on the point is State of Punjab v. Raj Singh, AIR 1998 SC 768 . The observations of the Apex Court in the above decisions are excerpted below : “We are unable to sustain the impugned order of the High Court quashing the F.I.R. lodged against the respondents alleging commission of offences under Sections 419, 420, 467 and 468, I.P.C. by them in course of the proceeding of a civil suit, on the ground that Section 195 (1)(b)(ii), Cr.P.C. prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195, Cr.P.C. It is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence under Section 190 (1), Cr.P.C. and it has nothing to do with the statutory power of the police to investigate into an F.I.R. which discloses a cognizable offence in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in or in relation to, any proceeding in Court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195, Cr.P.C. It is of course true that upon the charge sheet if any filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 195 (1)(b), Cr.P.C. but nothing therein deters the Court from filing a complaint for the offence on the basis of the F.I.R. (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340, Cr.P.C..................” 14. Having discussed the above decisions in all its ramifications, we revert to the facts of the present case. It would appear that the petitioner has been indicted, besides the offences under Sections 57 and 70 of the Mines, Minerals (Concession) Rules which are non-cognizable, under Section 379/411, IPC which are cognizable and regard being had to the fact that at the relevant time, when recovery of sand was made from the possession of the petitioner, he was not possessed of valid licence, we are not inclined to subscribe to the submissions that the police was prevented from investigating the offences under Rules 57 and 70 of the Rules 1963 by reason of the same being non-cognizable offences together with offences under Section 379/411, IPC which on the other hand are cognizable offences notwithstanding the fact that both the offences both cognizable and non-cognizable offences are based on the same facts. No doubt, Rule 74 of the Rules 1963 envisages that no Court shall take cognizance of any offence punishable under these rules except on a complaint in writing of the facts constituting such offences by the District Officer or by any officer authorised by him in this behalf and further the offences under Rules 57 and 70 are non-cognizable offences, but at the same time since the petitioner has also been challaned under Section 379/411, IPC, alongwith the offences under Rules 57 and 70 of the Rules 1963 and since the offences of both the categories emanate from the integrated facts, the police is not prevented from investigating the non-cognizable offences alongwith cognizable offences as cognizable offences. In this connection we feel called to revert to the contents of the F.I.R. lodged by the police constable on the basis of the written report submitted by the S.D.M. Zamania. In the F.I.R., the police constable explicitly stated that the accused person was engaged in illegal excavation of sands and its sale without there being any valid licence and acting upon the report of the S.D.M. Zamania, the police swung into action and initiated criminal action of raiding the place and lodging the F.I.R. Since the accused person has been charged with offence under Section 379/411, IPC which are cognizable offences, in the circumstances we have no reason to take a view different from the view taken by the Apex Court in State of Orissa (supra) that the police was authorised to investigate the cognizable offence alongwith non-cognizable offence irrespective of the fact who was the author of the report lodged at the police station regard being had to the provisions of Rule 76 which envisages that the officer referred to in Rule 66 may request for the help of the local police for lawful exercise of his powers under these rules and the local police shall render all possible assistance as may be necessary to enable the officer to exercise the powers under these rules. The view we are taking in this matter, also finds reinforcement from the decisions cited above. 15. The learned Counsel for the petitioner has not brought forth anything cogent or convincing to manifest that no cognizable offence is disclosed prima facie on the allegations contained in the F.I.R. or that there was any statutory restriction operating on the police to investigate the case. 16. Having scanned the allegations contained in the F.I.R. the Court is of the view that the allegations in the F.I.R. do disclose commission of cognizable offence and therefore no ground is made out warranting interference by this Court. The petition is accordingly dismissed. ————