{"id":226797,"date":"1968-04-29T00:00:00","date_gmt":"1968-04-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-vs-dasrath-beldar-and-ors-on-29-april-1968"},"modified":"2017-02-06T03:11:17","modified_gmt":"2017-02-05T21:41:17","slug":"state-of-bihar-vs-dasrath-beldar-and-ors-on-29-april-1968","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-vs-dasrath-beldar-and-ors-on-29-april-1968","title":{"rendered":"State Of Bihar vs Dasrath Beldar And Ors. on 29 April, 1968"},"content":{"rendered":"
Patna High Court<\/div>\n
State Of Bihar vs Dasrath Beldar And Ors. on 29 April, 1968<\/div>\n
Author: K Dutta<\/div>\n
Bench: K Dutta<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  K.K. Dutta, J.   <\/p>\n
 1. These eight appeals which arise out of orders of acquittal purporting to be under Section 247 of the Code of Criminal Procedure (hereinafter referred to as the Code), were heard together as a common question of law is involved in all these appeals.\n<\/p>\n
 2. The cases out of which these appeals arise are all cases in which cognizance was taken on the basis of prosecution reports submitted by officers of the Excise Department regarding commission of offences under Section 47 of the Bihar and Orissa Excise Act by the respondents concerned. Cognizance of the cases was taken on different dates ranging from the 22nd January, 1965 (in the case out of which Government Appeal No. 74 of 1966 arises) to the 27-5-1966 (in the case out of which Government Appeal No. 73 of 1966 arises) and all the cases were transferred to Munsif Magistrate for disposal according to law after cognizance thereof were taken. Processes were issued on the different dates by the Magistrates concerned, but the attendance of the respon-\n<\/p>\n
dents could not be secured and thereafter in all the cases orders were passed acquitting the accused under Section 247 of the Code on different dates on which the Excise Officer, who had submitted the prosecution report, was also absent from the Court. Those orders of acquittal under Section 247 of the Code were passed by the same Munsif Magistrate, namely, Shree S. D. Sharma, on different dates ranging from the 2nd June, 1966, (in the case out of which Government Appeal No. 48 of 1966 has arisen) to the 25th June, 1966 (in the case out of which Government Appeal Nos. 71 and 72 of 1966 have arisen). The orders of acquittal under Section 247 of the Code appear to have been passed because of the absence of the Officer submitting the prosecution reports, namely, the Excise Officer concerned.\n<\/p>\n
 3.    The   main contention   on behalf of
\nthe appellant is that the provisions of Section 247 of the Code had no application to these cases as summons in these cases had not been issued on the basis of any complaint but on the basis of prosecution reports submitted by the Excise Sub-Inspector, which are deemed to be police Reports in view of the provisions of Section 78 of the Bihar and Orissa Excise Act. This particular matter had come up for consideration before me in Government Appeal No. 38 of 1966= (AIR 1968 Pat 392) State of Bihar v. Newal Mahto, which was disposed of on the 20th March, 1968, and the following observations were made in that connection.\n<\/p>\n
  “Under Sub-section (1) of Section 77 a Collector has been empowered to investigate any offences punishable under this Act within the limits of his jurisdiction without the orders of a Magistrate. Sub-section (2) of this Section provides that any other Excise Officer specially empowered in this behalf by the State Government in respect of all or any specified class of offences punishable under this Act may, without the order of a Magistrate, investigate any such offence which Court having jurisdiction over the local area to which such officer is appointed would have power to inquire into or try under the aforesaid provisions. Under Section 78 powers conferred upon police officers under different Sections of the Code of Civil Procedure have been vested in any Collector or any Excise Officer empowered under Sub-section (2) of Section 77 and Sub-section (3) of this section provides that for the purposes of Section 156 of the Code of Criminal Procedure the area to which an Excise Officer empowered under Sub-section (2) of Section 77 is appointed shall be deemed to be a Police Station, and such officer shall be deemed to be the officer in charge of such station. Sub-section (4) further provides for submission of reports by a<\/p>\n
Collector or  by  any Excise Officer empowered under Sub-section (2) of Section 77 after completion of investigation of the case to   a  Magistrate having jurisdiction to inquire into or try the case and  empowered to take cognizance of offences on police-reports and it   further lays down that for the purpose of Section 190 of the Code of   Criminal   Procedure     such a report shall be deemed to be a police report.   In view of these provisions there cannot be any doubt    that an Excise    Officer who has been empowered under Sub-section (2) of Section 77 of the Excise Act has various powers of investigation of offences under this Act similar to those vested in a police officer empowered to investigate a   case and the area  in which he exercises  his jurisdiction is     deemed   to be a    police station and he is deemed to be an officer in charge of such police station and the prosecution report which he submits after investigation of the case is to be deemed to be a police report    under Section 190 of the  Code  of  Criminal  Procedure.   It, therefore, follows that when the subdivisional Magistrate takes    cognizance of a case on the basis of  such  a  report the cognizance is  taken under Clause  (b)  of Sub-section (1) of Section 190 on the basis of a police report and not under clause (a) of Sub-section (1) of the same section on the    basis  of    a    complaint.    It follows, therefore, that when cognizance of a case under the Excise Act is taken by a Sub-divisional   Magistrate on   the basis of a prosecution report submitted by an Excise Officer, who has   been  duly authorised under Sub-section (2) of Section 77 of the Excise Act, such a case cannot be held to be a complaint case and processes which are issued  against  the accused in such a case cannot be held to be issued on a complaint.    Hence, provisions   of  Section 247 of the Code of Criminal Procedure cannot have any application in such a case as this section is applicable only in cases in which summons   is   issued   on   complaint.”\n<\/p>\n
 4. I may mention In this connection that a Division Bench decision of the Calcutta High Court in the case of Radhika Mohan Das v. Hamid Ali, AIR 1927 Cal 405 as well as two other decisions, one of the Travancore-Cochin High Court in the case of the State v. M. Meera Sahib, AIR 1957 Trav.-Co. 132, and the other of the Andhra Pradesh High Court in the case of Public Prosecutor v. Shaikh Dawood, AIR 1957 Andh Pra 977, were cited before me on behalf of the respondent in Government Appeal No. 74 of 1966 in support of the contention that the provisions of Section 247 of the Code were applicable to such cases. In the first of these cases it was held by the Calcutta High Court, after construing Section 74(4) of the Bengal Excise Act, that the report submitted by an Excise Officer under that<\/p>\n
sub-section would be deemed to be a Police Report for the purpose of Section 190 of the Code only and not for other purposes. It transpires, however, that in giving this decision, the Court took into consideration the provisions of Section 74(4) only of the Bengal Excise Act, which provides that the report of the Excise Officer shall be deemed to be a police report for the purpose of Section 190 of the Code. This provision corresponds to the provision embodied in Section 73 (4) of the Bihar and Orissa Excise Act. But there are various other provisions in the Bihar and Orissa Excise Act, which are also relevant on the point As mentioned in my judgment in Government Appeal No. 38 of 1966 = (AIR 1968 Pat 392), already referred to above, under Sub-section (2) of Section 77, an Excise Officer has been vested with various powers to investigate offences under this Act similar to those vested in the Police Officers under the Code and according to Sub-section (3) the area in which the Excise Officer exercises jurisdiction is to be deemed to be a Police Station and he is deemed to be an officer in charge of the Police Station. These provisions of the Bihar and Orissa Excise Act go far beyond the provision of the Bengal Excise Act incorporated in Section 74(4) of that Act, which alone has been referred to in the above Division Bench decision of the Calcutta High Court in holding that the report of an Excise Officer will be deemed to be a Police Report only for the purpose of Section 190 of the Code. This decision, therefore, does not help us in determining whether a prosecution report submitted by an Excise Officer in accordance with the provisions of the Bihar and Orissa Excise Act is to be deemed to be a Police Report for the purpose of Section 190 of the Code only or for the purposes of Section 247 of the Code also.\n<\/p>\n
 5. Similarly, the decision of the Tra-vancore-Cochin High Court in the case reported in AIR 1957 Trav.-Co. 132, appears to have no bearing whatsoever as would appear from the fact that in this case reliance was placed upon an observation in an earlier case in which a reference was made to the fact that a report filed by a Police Officer with respect to a non-cognizable case comes within the purview of the definition of the term ‘complaint’ as defined in Section 4(1)(d) of the Code, as applicable in Travancore-Cochin. Under the corresponding provision of the Code as applicable in our State, a report of a Police Officer with respect to any offence (i. e., whether the offence is cognizable or non-cognizable) is excluded from the term ‘complaint’ when such a report is submitted before a Magistrate for taking action under this Code against some person. The above decision of the<\/p>\n
Travancore-Cochin High Court, therefore, has no bearing whatsoever in determining the point under consideration.\n<\/p>\n
 6. The decision of the Andhra Pradesh High Court reported in AIR 1957 Andhra Pradesh 977, relates to a report of a Prohibition Officer under the Madras Prohibition Act and there is nothing to show that there is any provision in that Act corresponding to the provisions of the Bihar and Orissa Excise Act, already referred to above. This decision also, therefore, has no bearing whatsoever in determining the point.\n<\/p>\n
 7. On a consideration of all the above aspects, I am quite unable to accept the contention that the provisions of Section 247 of the Code are applicable in connection with cases of which cognizance has been taken on the basis of reports of an Excise Officer submitted in accordance with Section 74 of the Bihar and Orissa Excise Act. I accordingly hold that the orders of acquittal as passed, by the learned Magistrate are quite illegal and cannot be allowed to stand.\n<\/p>\n
 8. In the result, all these appeals are allowed and the orders of acquittal passed by the learned Magistrate in the cases out of which these appeals have arisen are hereby set aside, and it is directed that all those cases shall be disposed of afresh by the learned Magistrate in accordance with law. The attention of the Magistrate, however, is drawn to the provisions of Section 249 as also of Section 512 of the Code. He may consider the desirability of proceeding under these sections in appropriate cases.\n<\/p>\n
 9. In conclusion, I would like to mention that I find that in four of the cases, namely, those out of which Government Appeals Nos. 65, 71, 72 and 74 of 1968 have arisen, the execution reports of the warrants of arrest issued against the accused were not received by the Magistrate in spite of a number of adjournments and several reminders, including letters to the Superintendent of Police in some of the cases. This reveals a very unsatisfactory state of affairs and it is desirable and necessary that the Superintendent of Police of the District should make an enquiry as to why the execution reports were not sent to the Magistrate concerned in spite of so many adjournments and reminders and appropriate action should be taken against the persons who may be found responsible for the same. A copy of this judgment should be forwarded to the Superintendent of Police for taking necessary action as directed above.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court State Of Bihar vs Dasrath Beldar And Ors. on 29 April, 1968 Author: K Dutta Bench: K Dutta JUDGMENT K.K. Dutta, J. 1. These eight appeals which arise out of orders of acquittal purporting to be under Section 247 of the Code of Criminal Procedure (hereinafter referred to as the Code), were […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-226797","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nState Of Bihar vs Dasrath Beldar And Ors. on 29 April, 1968 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-vs-dasrath-beldar-and-ors-on-29-april-1968\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Bihar vs Dasrath Beldar And Ors. on 29 April, 1968 - 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