PETITIONER: PRAVIN CHANDRA MODY Vs. RESPONDENT: STATE OF ANDHRA PRADESH DATE OF JUDGMENT: 15/09/1964 BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SUBBARAO, K. MUDHOLKAR, J.R. CITATION: 1965 AIR 1185 1965 SCR (1) 269 CITATOR INFO : R 1969 SC 355 (10) R 1979 SC 339 (9) R 1980 SC 506 (7) F 1987 SC1167 (9) ACT: Essential Commodities Act (10 of 1955), s. 7--Offence under- Report under s. 11.-Whether amounts to Police Report requisite under s. 251-A and s. 190(l) (b) of Code of Criminal Procedure (5 of 1898)-Whether triable under s. 251- A or s. 252 of the Code. HEADNOTE: The appellant was being tried before a Magistrate for offences under s. 420 of the Indian Penal Code and s. 7 of the Essential Commodities Act, 1955. The offences arose out of the same set of parts and were investigated together under Chapter XIV of the Code of Criminal Procedure. At the end of the investigation the police officer filed in respect of the offence of cheating a charge-sheet against the appellant under s. 173 of the Code which was intended to serve also as a report in writing of a public servant as required by s. 11 of the Essential Commodities Act. At the trial the appellant objected that as the police had filed a report under s. 11 of the Essential Commodities Act, the trial of the offence under s. 7 could not be under s. 251-A but should be under s. 252 of the Code of Criminal Procedure. The Magistrate overruled his objection, and in revision the Sessions Judge and the High Court upheld the Magistrate's order. Thereupon, the appellant came to the Supreme Court. The appellant's contention in the appeal was that under s. 251-A as well as under el. (b) of s. 190(1) the report must be a report of a police officer under s. 173 after investigation under Chapter XIV of the Code of Criminal Procedure, that the report in the appellant's case being under s. 11 of the Essential Commodities Act, and not a report under s. 173 it could only be treated as a complaint under s. 190(1)(a), and that the procedure applicable was that under s. 252. HELD : (i) Cases falling under cls. (a) and (c) of s. 190(l) are triable according to the procedure in s. 252 while those falling under el. (b) of that section are triable under s. 251-A of the Code of Criminal Procedure. As the report in the present case was made by a police officer it could not be taken cognizance of under cls. (a) and (c) which expressly exclude report or information given by a police officer. The offences mentioned in such a report could therefore not be tried under s. 252. [272H; 273C-D] (ii) A report under s. I 1 is not a charge-sheet, but a report made under s. 173 satisfies the provisions of s. I I as the police officer who makes it is also a public servant. The report regarding the offence under s. 7 was rightly included in the charge-sheet under s. 173 because both the offences were investigated under Chapter XIV. The case therefore was one instituted on a police report under s. 173 and s. 251-A was applicable. [273G; 274D-E; 275C-E] Bhagwati Saran V. State of U.P. [1961] 3 S.C.R. 563, Rain Krishna Dalmia V. State A.I.R. 1958 Punj. 172 and Premchand Khetry v. State A.I.R. 1958 Cal. 213, referred to. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 49
of 1964.
270
Appeal by special leave from the judgment and order dated
September 3, 1963 of the Andhra Pradesh High Court in
Criminal Revision Case No, 132 of 1963 and Cr. R. Petition
No. 118 of 1963.
J.L. Jain, K. Jayaram, for J. R. Gagrat, for the
appellant.
K. R. Chaudhry and B. R. G. K. Achar, for the
respondent.
The Judgment of the Court was delivered by
Hidayatullah J. The appellant is being prosecuted under s.
420, Indian Penal Code and under S. 7 of the Essential Com-
modities Act, 1955 for contravention of cls. (4) and (5) of
the Iron an-,I Steel Control Order. The prosecution was
commenced by the Inspector of Police, Crime Branch, C.I.D.,
Hyderabad by filing against him a charge-sheet tinder S. 173
of the Code of Criminal Procedure in respect of the offence
of cheating which was intended to serve also as a report in
writing of a public servant as required by S. 11 of the
Essential Commodities Act, 1955. Learned City Magistrate of
Secunderabad framed a charge against him under s. 251A(3) of
the Code of Criminal Procedure in respect of both the
offences. The appellant then raised two preliminary
objections : the first was that as the commodity was
obtained and disposed of at Bombay, the Court at
Secunderabad had no jurisdiction to try him. This
objection, which would have necessitated the recital of
facts, has not been raised before us and it is not necessary
to mention it again. The second objection was that as the
police had filed a report under s. I 1 of the Essential
Commodities Act, a trial of the offence under s. 7 could not
be under s. 251A but under s. 252 of the Code of Criminal
Procedure. He, therefore, asked that the charge framed
against him should be quashed. This objection was rejected.
The appellant thereupon moved the Sessions Judge in revision
who declined to interfere. He filed a second revision in
the High Court of Andhra Pradesh but it was dismissed by the
order which is now underappeal.
In so far as the trial of the alleged offence under s.
420, Indian Penal Code is concerned there is no objection to
its trial under S. 251A, Code of Criminal Procedure. That
provision is made for the procedure to be adopted in cases
“instituted on a police report”. Under that procedure the
Magistrate has to satisfy himself, at the commencement of
the trial, that the documents referred to in s. 173 have
been furnished to the accused and if they have not been
furnished to cause them to be so furnished.
271
The Magistrate must then consider all the documents and
after making such examination, if any, of the accused, as
the Magistrate thinks necessary and after giving the
prosecution and the accused’ in opportunity of being heard,
the Magistrate must consider whether a charge should be
framed against the accused or not. If he comes to the
conclusion that the charge is groundless he must discharge
him. On the other hand, if he is of the opinion that there
is ground for presuming that the accused has committed an
offence triable under this Chapter, which he is competent to
try and which, in his opinion, could be adequately punished
by him, he must frame a charge in writing against the
accused and after explaining it to him record his plea and
proceed according to it. Under s. 252, Criminal Procedure
Code, it is provided as follows :-
“252(1) In any case instituted otherwise than
on a police report,, when the accused appears
or is brought before a, Magistrate, such
Magistrate shall proceed to hear the
complainant (if any) and take all such
evidence as may be produced in support of the
prosecution
Provided that the Magistrate shall not be
bound to, hear any person as complainant in
any case in which the complaint. has been made
by a Court.
(2) The Magistrate shall ascertain, from the
complaint or otherwise, the names of any
persons likely to be acquainted with the facts
of the case and to be able to give evidence,
for the .prosecution, and shall summon to give
evidence before himself such of them as he
think necessary.”
Under s. 253, Criminal Procedure Code, if, upon taking all
the evidence referred to in the section just quoted and
making such examination, if any, of the accused as the
Magistrate thinks necessary, he finds that no case against
the accused has been made out which, if unrebutted, would
warrant his conviction, the Magistrate can discharge him.
On the other hand, if it appears to the Magistrate that
there are grounds for presuming that the accused has
committed an offence which the Magistrate is competent to
try and which, in his opinion, could be adequately punished
by him, he frames a charge against him and records a plea.
If the accused does not plead guilty the Magistrate gives
him time to state which of the prosecution witnesses be
wishes to cross-examine, if any, and if he says that he does
so, the witnesses are recalled and are allowed to be cross-
examined.
272
Contention of the appellant. is that by the words ‘police
report’ in s. 25 1A of the Code of Criminal Procedure, is
meant the report mentioned in S. 173 which the police
officer makes to a Magistrate in respect of offences
investigated by him under Chapter XIV. The investigation is
in respect of cognizable offences because noncognizable
offences may only be investigated by police officers after
being authorised in that behalf by a competent Magistrate.
-It is pointed out that under S. 190, cognizance of an
offence is taken in different ways : (a) upon receiving a
complaint of facts which constitute an offence; (b) upon a
report in writing of such facts made by any police officer;
and (c) upon information received from any person other than
a police officer, or upon the Magistrate’s own knowledge or
suspicion that such offence has been committed. It is
argued on the basis of this threefold distinction that by
the ‘police report’ in s. 190 (1 ) (b) is meant the charge-
sheet of the police officer under S. 173 of the Code, and
since the report in writing which the police officer makes
under s. I I of the Essential Commodities Act, 1955 is not a
chargesheet under S. 173 of the Code it must be equated to a
complaint of facts under s. 190(l) (a). In view of this
distinction it is contended that while the offence under S.
420, Indian Penal Code is triable under the procedure laid
down in S. 251A, Criminal Procedure Code, the offence under
S. 7 of the Essential Commodities Act is triable under the
procedure laid down under S. 252, ‘Criminal Procedure Code.
The appellant submits that either the two charges should be
split up or the two offences should be tried under the
procedure laid down by S. 252 of the Code of Criminal
Procedure as the procedure under S. 251A, Criminal Procedure
‘Code, does not afford the accused the chance of a second
crossexamination which S. 252 of the Code gives, and there
is prejudice ‘to him in the trial of the offence under S. 7
of the Essential Commodities Act.
In our judgment the meaning which is sought to be given
to a police report’ is not correct. In S. 190, a
distinction is made between the classes of persons who can
start a criminal prosecution. Under the three clauses of S.
190(l), to which we have already referred, criminal
prosecution can be initiated (i) by a police officer by a
report in writing, (ii) upon information received from any
person other than a police officer or upon the Magistrate’s
own knowledge or suspicion, and (iii) upon receiving a
complaint of facts. If the report in this case falls within
(i) above, then the procedure under S. 251A, Criminal
Procedure ‘Code, must be followed. If it falls in (ii) or
(iii) then the pro-
273
cedure under s. 252, Criminal Procedure Code, must-be
followed. We are thus concerned to find out whether the
report of the police officer in writing in this case can be
described as a “complaint of facts” or as “information
received from any person other than a police officer”. That
it cannot be the latter is obvious enough because the
information is from a police officer. The term “complaint”
in this connection has been defined by the Code of Criminal
Procedure and it “means the allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or unknown,
has committed an offence, but it does not include the report
of a police officer”. [See s. 4 (1) (h) ].
It, therefore, follows that s. 252, Criminal Procedure
Code, can only apply to those cases which are instituted
otherwise than on a police report, that is to say, upon
complaints which are not reports of a police officer or upon
information received from persons other than a police
officer. The initiation of the prosecution in this case
was upon a report in writing by the police officer. Section
1 1 of the Essential Commodities Act, 1955 reads as follows
” 11. Cognizance of offences.–No Court shall
take cognizance of any offence punishable
under this Act except on a report in writing
of the facts constituting such offence made by
a person who is a public servant as defined in
section 21 of the Indian Penal Code.”
In Bhagwati Saran v. State of U.P.(1) this Court explained
the nature of a report under S. 11 of the Essential Supplies
(Temporary Powers) Act, 1946 which was a provision in the
same words. This Court has held that the function of the
report under s. 1 1 is not to serve as a charge-sbeet
against the accused, and that the purpose of s. 11 is to
eliminate private individuals such as rival traders or
general public from initiating the prosecution and to insist
that before cognizance is taken the complaint must emanate
from a public servant. The police officer is a public
servant and this was not denied before us. The requirements
of s. 11 are, therefore, satisfied, though s. I 1 does not
make the report, if filed by a police officer, into a
charge-sheet. It is then contended that the report under s.
II cannot be treated as a report under s. 173 but only as a
complaint under s. 190(l) (a). The police officer was
investigating under S. 156(1) of the Code of Criminal Proce-
dure an offence under s. 420, Indian Penal Code which was
based on the same facts as the offence under s. 7 of the
Essential Commodities Act. He investigated the latter
offence along with the
(1) [1961] 3 S.C.R. 563.
274
former and joined it with the former in the charge-sheet
which presented.
Section 156(2) provides that where a police officer enquire
into an offence under S. 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. Even if the offence
under the Essential Commodities Act may not be cognizablo-
though it is not alleged by the appellant that it is non-
cognizable-the police officer would be competent to include
it in the charge-sheet under S. 173 with respect to a
cognizable offence. In Ram Krishna Dalmia v. State(1),
Falshaw J. (as he then was) observed that the provisions of
s. 155(1), Criminal Procedure Code, must be regarded as
applicable to those cases where the information given to the
police is solely about a non-cognizable offence. Where the
information discloses a cognizable as well as a non-
cognizable offence the police officer is not debarred from
investigating any non-cogniz,able offence which may arise
out of the same facts. He can include that non-cognizable
offence in the charge-sheet which he presents for a
cognizable offence. We entirely agree. 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.
It was contended before us on the authority of Premchand
Khetry v. The State (2) that a prosecution under S. 25 1 A,
Criminal Procedure Code can only commence on a report under
S. 173 of the Code of Criminal Procedure. It is submitted
that the report of the police officer cannot be regarded as
a charge-sheet for purposes of S. 173, Criminal Procedure
Code. In that case the learned Judges of the Calcutta High
Court went elaborately into the meaning of the expression
‘police report’ in S. 190(1)(b) and held that those words
were confined to a charge-sheet under S. 173 of the Code.
We have pointed out above that in all those cases 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. We have
also pointed out that even in cases where the police office
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
along with a cognizable offence when the two arise from the
same facts. In the Calcutta
(1) A.T.R. 1958 Punj. 172.
(2) A.I.R. 1958 Cal. 213.
275
case to which we have last referred, there was a provision
(s. 20G) in the Opium Act, as amended in Bengal, which
provided that a report in writing by an officer of the
Excise, Police or the Customs Department shall be enquired
into and tried as if such report was a report in writing
made by police officer under cl. (b) of s. 190 (1) of the
Code of Criminal Procedure, 1898. The Divisional Bench in
the Calcutta High Court held that the section created a
fiction by which the report of an Excise or Customs officer
was to be regarded as the report of a police officer but
only for the purpose of s. 190(l) (b), that it did not make
the report a charge-sheet under s. 173 of the Code, and that
s. 251,A, Criminal Procedure Code, was not applicable
because it contemplated a report under s. 173 of the Code.
We invited counsel to tell us that if the effect of the
fiction did not make it a report under s. 173, Criminal Pro-
cedure Code, what other purpose could the Legislature have
had in mind in saying that it was a police officer’s report
? He could suggest none, and we cannot also see what other
purpose was intended. In our opinion, the position is clear
that such reports, if they are regarded as made under s.
190(1) (b), must attract the provisions of s. 251A of the
Code, because if the fiction is given full effect they
cannot be regarded as falling within ‘complaints’ under s.
190(1) (a) or within s. 190(1)(c). In any case, the
Divisional Bench also said that s. 251A is applicable to the
trial of a case which is initiated on a police report under
s. 173 if the investigation is one to which s. 173, Criminal
Procedure Code may be applied, and both the conditions are
fulfilled in this case
The High Court was right in not interfering in revision
with the trial of the case. We dismiss the appeal. The
appellant has succeeded in delaying this trial for a
considerable time. We direct that the trial shall take
place from day to day till the case is disposed of according
to law.
Appeal dismissed.
276