{"id":249722,"date":"1993-05-05T00:00:00","date_gmt":"1993-05-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-west-bengal-vs-falguni-dutta-and-another-on-5-may-1993"},"modified":"2015-07-25T18:50:45","modified_gmt":"2015-07-25T13:20:45","slug":"state-of-west-bengal-vs-falguni-dutta-and-another-on-5-may-1993","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-west-bengal-vs-falguni-dutta-and-another-on-5-may-1993","title":{"rendered":"State Of West Bengal vs Falguni Dutta And Another on 5 May, 1993"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of West Bengal vs Falguni Dutta And Another on 5 May, 1993<\/div>\n
Equivalent citations: 1993 SCR (3) 570, 1993 SCC (3) 288<\/div>\n
Author: Ahmadi<\/div>\n
Bench: Ahmadi, A.M. (J)<\/div>\n
           PETITIONER:\nSTATE OF WEST BENGAL\n\n\tVs.\n\nRESPONDENT:\nFALGUNI DUTTA AND ANOTHER\n\nDATE OF JUDGMENT05\/05\/1993\n\nBENCH:\nAHMADI, A.M. (J)\nBENCH:\nAHMADI, A.M. (J)\nPUNCHHI, M.M.\n\nCITATION:\n 1993 SCR  (3) 570\t  1993 SCC  (3) 288\n JT 1993 (3)   288\t  1993 SCALE  (2)743\n\n\nACT:\nEssential Commodities Act<\/a> 1955--Sections 12A<\/a>. 12AA, 7(1) (a)\n(ii)  read  with  Sections  167<\/a> (5), 262  to  265,  Code  of\nCriminal  Procedure.  1973--Offences   under--Trial--Summary\nway--Legislative intention.\nEssential Commodities Act<\/a>, 1955--Section 12A<\/a>--Special  Court\nwhether\t empowered to exercise powers u\/s. 167 (5), Code  of\nCriminal Procedure. 1973.\nEssential Commodities Act<\/a>, 1955--Sections 7<\/a> (1) (a) (ii), 2A\nread with Section 167(5)<\/a>, Code of Criminal Procedure--Charge\nSheet  filed  after expiry of six months from  the  date  of\narrest of accused--Special Court's power to take cognizance,\ntry and punish--Scope of\n\n\n\nHEADNOTE:\nOn  16.3.1984,\tthe police raided the business\tpremise\t and\ngodown\tof  the\t respondents  and  sized  certain  essential\ncommodities  which  were stored there  in  contravention  of\ncertain orders issued under section 3<\/a> read with section 5<\/a> of\nthe  Essential Commodities Act, 1955.  On the same  day\t the\nrespondents  were arrested for the commission of an  offence\npunishable  under  section 7(1)<\/a> (a) (ii) of  the  Act.\t But\nchargesheet  was  submitted  under  section  173<\/a>,  Code\t  of\nCriminal Procedure on 30.9.1986, after expiry of the  period\nof six months.\tThe Special Court constituted under  section\n12A<\/a> took cognizance of the offence on 13.3.1987 on the basis\nof the charge-sheet.\nThe respondent No. 1 moved an application before the Special\nCourt to quash the proceeding since the case was triable  as\na  summon  case\t in  view of section 12AA<\/a>  (1)\t(f)  of\t the\nEssential Commodities Act<\/a>, sub-section (5) of Section 167<\/a> of\nCode of Criminal Procedure was attracted.\nRelying\t on the decision in Kanta Dey v. The State  of\tWest\nBengal\t(1986)\tCalcutta  Criminal  Law\t Reporter  158,\t the\nSpecial\t Court\trejected the application  holding  that\t the\nprovision of section 167<\/a> (5) of the Code<\/a> had no\t application\nto  a  case  initiated\tfor the\t commission  of\t an  offence\npunishable under section 7(1)<\/a> (a) (ii) of the Act.\n571\nRespondents'  revision\tapplication  against  the  order  of\nSpecial Court was allowed by single judge of the high Court.\nThe High Court relying on the decision in public Prosecutor,\nHigh  Court of Hyderabad v. Anjaneyulu<\/a>, (1986) Criminal\t Law\nJournal\t 1456, held that sub-section (5) of section  167<\/a>  of\nthe  Code stood attracted.  On the High court  quashing\t the\nprosecution,  the respondents were discharged.\tThe  present\nappeal\tby special leave was filed by the State against\t the\norder of the High Court.\nOn  the\t questions, 1 whether a\t Special  Court\t constituted\nunder \"Section 12A<\/a> of the Essential Commodities Act, 1955 is\nempowered  to exercise powers under section 167<\/a> (5)  of\t the\nCode<\/a>  of Criminal Procedure, 1973 in relation to an  accused\nperson forwarded to it under section 12AA<\/a> (1) (b) of the Act\nand (ii) whether a Special Court can take cognizance of\t the\noffence\t and proceed to try and punish the  accused  person,\nnotwithstanding\t the  fact that the  charge-sheet  is  filed\nafter  expiry of the period of six months from the  date  of\narrest of the accused person?\", partly allowing the  appeal,\nthis Court,\nHELD:  1.1.  From  the plain  language\tof  the\t provisions,\nintroduced  by\tAct 18 of 1981 the  legislature\t desired  to\nensure\tthat  all offences under the Act were tried  by\t the\nSpecial\t Court\tconstituted under section 12A<\/a> in  a  summary\nmanner applying the provisions of sections 262<\/a> to 265<\/a> of the\nCode  and  further provided that in case of  conviction\t the\nsentence  shall not exceed two years, bringing\tthe  offence\nwithin the definition of a summons-case under the Code<\/a>.\t But\nfor  the  insertion of section 12A<\/a> in its present  form\t and\nsection\t 12AA<\/a>, the offence under section 7<\/a> (1) (a)  (ii)  of\nthe  Act would have attracted the definition of\t a  warrant-\ncase. (578-D)\n1.2.  The  avowed object of these  legislative\tchanges\t was\nexpeditious  disposal of offences under the Act\t by  Special\nCourts\t employing  summary  procedure\tand   applying\t the\nprovisions  of\tthe Code<\/a> to such trials\t save  as  otherwise\nprovided.    This  enabled  the\t special  Courts   to\ttake\ncognizance  of the offences under the Act without  a  formal\norder of commitment. (578-C)\n1.3.  After the constitution of Special Courts all  offences\nunder  the Act have to he tried by that court in  a  summary\nways  by applying the provision,% of section.-. 262  to\t 265\n(both  inclusive) of the Code<\/a>.\tThe proviso places a  fetter\non  the\t power\tof  the Court in the  matter  of  passing  a\nsentence  on  conviction, namely, notwithstanding  the\tfact\nthat  section  7(1)<\/a>  (a\t )  (ii)  prescribes  a\t  punishment\nextending upto seven years and fine, Special Court shall not\npass  a\t sentence of imprisonment for a term  exceeding\t two\nyears-.\t It is this proviso which attracts the definition of\na summon case, the trial whereof must he\n572\nundertaken  in\taccordance with the  procedure\toutlined  in\nChapter XX of the Code. (579-A-B)\n1.4.Section  167<\/a>  (5)says that if in any case triable  as  a\nsummons-case,the  investigation\t is wit concluded  within  a\nperiod\tof  six months from the date on which  tile  accused\ncame  to  he arrested, the Magistrate shall  make  an  order\nstopping  further investigation into the offence unless\t the\nMagistrate  for\t special  reasons and  in  the\tinterest  of\njustice\t considers it necessary. to permit  continuation  of\nthe investigation. (579-C)\n1.5. The object of sub-section clearly (5) of Section 167<\/a> is\nto  ensure prompt investigation into all offence triable  as\nsummons-case to avoid hardship and harassment to the accused\nperson. (646-C)\n1.6.  The  prosecution\tin  question  being  a\tsummons-case\ntriable\t in  a summary manner as per procedure\toutlined  in\nsections 262<\/a> to 265<\/a> of the Code which in turn attracts\ttile\nprocedure  meant  for summons-case, it is obvious  that\t the\npower  conferred  by sub-section (5) of section 167<\/a>  can  be\ninvoked\t by  the Special Court by virtue or  clause  (c)  of\nsection\t 12AA<\/a> (1) of the Act which in terms states that\t the\nSpecial\t  Court\t may  exercise\tthe  same  powers  which   a\nMagistrate may exercise under section 167<\/a> of the Code.\tThus\na  special  Court is expressly empowered by  clause  (c)  of\nsection\t 12AA<\/a>  (1)  to\texercise the  same  powers  which  a\nMegistrate  having jurisdiction to try a cast- may  exercise\nunder  section\t167<\/a> of the Code in relation  to\t an  accused\nperson\twho has been forwarded to him under that  provision.\n(579-1))\n1.7.  The  High Court was right in concluding  that  section\n167(5)<\/a> of the Code was attracted in the present case and the\nSpecial\t Court was entitled to exercise the power  conferred\nby that sub-section. (579-F)\n1.8. In the case of an offence punishable under section 7(i)<\/a>\n(a)  (ii)  of  the Act which is tried  by  a  Special  Court\nconstituted under section 12A<\/a>, the provision (of sub-section\n(5)  of\t section  167<\/a>  of the Code  get\t attracted  if\ttile\ninvestigation  has  not\t been completed\t within\t the  period\nallowed by that sub.section. (582-F)\n1.9. The Special Court was competent to entertain the police\nreport\trestricted  to\tsix months  investigation  and\ttake\ncognizance on the basis thereof Therefore the Special  Court\nis  directed  to proceed with the trial from that  stage  on\nwards  and  complete  the  same\t as  early  as\tpossible  in\naccordance\n573\nwith law. (582-G)\nKanta  Dev  v.\tThe State of west  Bengal,  (1986)  Calcutta\nCriminal  Law  Reporter 158--(1986) 1 CHN  267\tand  Babulal\nAgarwal v. State<\/a>, (1987) 1 CHN 218, overruled. (639-B-C)\nJnan Prakesh Agarwala v. State of West Bengal, (1992)-1\t CHN\n218 and Public Prosecution High Court of Hyderabad & etc. v.\nAjnaneyulu  and\t etc.,\t(1986) Criminal\t Law  Journal  1456,\napproved.\nHussainara Khantoon & Ors. v. Home Secretary State of Bihar,\nPatna<\/a>, (1979) 3 SCR 760, referred to. (639-H, 647-F)\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.397  of
\n1993.\n<\/p>\n
From  the Judgment and Order dated 11.7.90 of  the  Calcutta
\nHigh Court in Crl.  Revision No. 1453 of 1987.
\nD.N. Mukherjee, D. Sinha and J.R. Das for the Appellant.
\nSukumar Guha and A.K. Sengupta for the Respondents.
\nThe Judgment of the Court was delivered by
\nAHMADI, J.  Special leave granted.\n<\/p>\n
In this appeal by special leave two questions arise for\t our
\nconsideration,\t namely,   (i)\twhether\t a   Special   Court
\nconstituted  under Section 12A<\/a> of the Essential\t Commodities
\nAct,  1955  (hereinafter called ‘the Act’) is  empowered  to
\nexercise powers under sub-section (5) of Section 167<\/a> of Code
\nof  Criminal  Procedure,  1973 (‘the  Code’  for  short)  in
\nrelation  to an accused person forwarded to it under  clause\n<\/p>\n
(b) of sub-section (1) of section 12AA<\/a> of the Act? and\t(ii)
\nwhether\t a Special Court can, notwithstanding the fact\tthat
\nthe  charge-sheet  has been filed after the  expiry  of\t the
\nperiod of six months from the date of arrest of the  accused
\nperson\tor  the\t extended period,  take\t cognizance  of\t the
\noffence\t and proceed to try and punish the  accused  person?
\nThese  two questions arise in the backdrop of the  following
\nfacts.\n<\/p>\n
A  police party headed by an Inspector of Police raided\t the
\nbusiness premise
\n574<\/span>
\nand  godown of the respondents on March 16, 1984 and in\t the
\npresence of respondent Faguni Dutta seized certain essential
\ncommodities stored in contravention of certain orders issued
\nunder section 3<\/a> read with section 5<\/a> of the Act.\t The accused
\nFalguni\t Dutta\twas  arrested  on  the\tsame  day  for\t the
\ncommission  of an offence punishable under section 7(1)<\/a>\t (a)\n<\/p>\n
(ii) of the Act but the charge-sheet was submitted after the
\nexpiry\tof the period of six months from the date of  arrest
\non September 30, 1986.\tThe learned Judge presiding over the
\nSpecial\t Court\tConstitute of under section 12A<\/a> of  the\t Act
\ntook  cognizance  of the offence on March 13,  1987  on\t the
\nbasis of the charge-sheet submitted under section 173<\/a> of the
\nCode.\tThereupon the accused persons moved  an\t application
\nbefore\t the   learned\tSpecial\t Judge\tfor   quashing\t the
\nproceedings on the ground that since the case was triable as
\na  summons-case in view of section 12AA(1)<\/a> (f) of  the\tAct,
\nclause\t(5) of section 167<\/a> of the Code was  attracted  which
\nenjoined  that\tthe  proceedings be  dropped.\tThe  learned
\nSpecial\t Judge\trelying on a decision of  a  learned  Single
\nJudge  of the High Court in Kanta Dev v. The State  of\tWest
\nBengal (1986) Calcutta Criminal Law Reporter 158 = (1986)  1
\nCHN  267 rejected the application on July 24,  1987  holding
\nthat  the  provision of section 167<\/a> (5) of the Code<\/a>  had  no
\napplication  to\t a case initiated for the commission  of  an
\noffence punishable under section 7<\/a> (1) (a) (ii) of the\tAct.
\nWe  may\t incidentally  point  out that\tthe  same  view\t was
\nexpressed  in  Babulal Agarwal v. State<\/a> (1987)\t1  CHN\t218.
\nBeing  aggrieved  by the rejection of  the  application\t the
\naccused\t preferred a Revision Application to the High  Court
\nchallenging  the  legality  of the said\t order.\t  A  learned
\nsingle\tJudge  of  the\tHigh Court  placing  reliance  on  a
\nDivision Bench decision of the High Court of Andhra  Pradesh
\nin the case of Public Prosecutor, High Court of Hyderabad  &
\netc.  v.  Anjaneyulu and etc. (1986)  Criminal\tLaw  Journal
\n1456]  held that sub-section (5) of section 167<\/a> of the\tCode
\nstood attracted and the learned Special Judge ought to\thave
\nstopped\t the  further  investigation on the  expiry  of\t six
\nmonths\tand  ought  to have  discharged\t the  accused.\t He,
\ntherefore, set aside the order of the learned Special  Judge
\nand also quashed the prosecution and discharged the accused.
\nIt is against this order of the High Court that the  present
\nappeal is preferred.\n<\/p>\n
We may incidently mention that when the learned Single Judge
\nwas disinclined to follow the earlier two decisions of other
\nlearned\t single Judges of the High Court the  proper  course
\nwas  to refer the matter to a Division Bench  for  decision.
\nThat.  however,\t has now lost significance in  view  of\t the
\nsubsequent  decision of the Division Bench in  Jnan  Prakash
\nAgarwala  v. State of WestBengal (1992) 1 CHN 213  taking  a
\ncontrary  view.\t  In the said case the\tDivision  Bench\t has
\ntaken  the view which the learned Single Judge has taken  in
\nthe present case.  We will deal with these decisions in some
\ndetail hereafter.\n<\/p>\n
At the outset we deem it appropriate to notice the  relevant
\nprovisions of the
\n575<\/span>
\nconcerned statutes.  The Act<\/a> was enacted to provide, in\t the
\ninterest   of  the  general  public  for  the\tcontrol\t  of
\nproduction,  supply  and  distribution\tof,  and  trade\t and
\ncommerce  in, certain commodities.  Section 3<\/a>,\tinter  alia,
\nlays down that if the Central Government is of opinion\tthat
\nit  is\tnecessary or expedient so to do for  maintaining  or
\nincreasing  supplies  of  any  essential  commodity  or\t for
\nsecuring  their equitable distribution and  availability  at
\nfair  prices, it may, by order, provide for  regulating\t and
\nprohibiting the production, supply and distribution  thereof
\nand trade and commerce therein.\t By section 4<\/a> it is provided
\nthat  an order made under section 3<\/a>, may, confer powers\t and
\nimpose\tduties\tupon  the Central Government  or  the  State
\nGovernment  or\tofficers  and  authorities  of\tthe  Central
\nGovernment  or State Government and may\t contain  directions
\nany State Government or to officers and authorities  thereof
\nas  to the exercise of any such powers or the  discharge  of
\nany  such  duties.  The Central Government is  empowered  by
\nsection\t 5<\/a> to direct that the power to make orders or  issue
\nnotifications  under section 3<\/a>, shall, in relation  to\tsuch
\nmatters\t and subject to such conditions, if any, as  may  be
\nspecified  in the direction, be exercisable, inter alia,  by
\nsuch State Government, as may be specified in the direction.
\nIn  exercise of the power so conferred certain\torders\twere
\nissued\tby  the\t State\tGovernment  in\tregard\tto   certain
\nessential   commodities\t from  time  to\t time.\t Section   7<\/a>
\nprescribes the penalties for the contravention of any  order
\nmade under section 3<\/a>. The relevant portion of section 7<\/a> with
\nwhich we are concerned reads as under:\n<\/p>\n
\t      “7  (1)  If any person contravenes  any  order
\n\t      made under section 3<\/a>,-\n<\/p><\/blockquote>\n
\t      (a) he shall be punishable,-\n<\/p><\/blockquote>\n
\t      (i)  in  the  case  of  an  order\t made\twith
\n\t      reference\t to clause (i) of subsection (2)  of
\n\t      that  section,  with imprisonment for  a\tterm
\n\t      which may extend to one year and shall also be
\n\t      liable to fine, and\n<\/p><\/blockquote>\n
\t      (ii)in  the  case\t of any\t other\torder,\twith
\n\t      imprisonment  for\t a term which shall  not  be
\n\t      less than three months but which may extend to
\n\t      seven years and shall also be liable to fine.\n<\/p><\/blockquote>\n
In  the\t present case the accused came to be  charged  under
\nsection\t 7<\/a>  (1) (a) (ii) of the Act.  Having regard  to\t the
\nfact  that  the punishment prescribed for the  said  offence
\nextends to seven years and fine, the case would fall  within
\nthe  definition\t of warrant-case under section 2(x)<\/a>  of\t the
\nCode.\tThis becomes evident if we read the  definitions  of
\n‘summons-case’\tand’  warrant-case’ together.  They  are  as
\nunder:\n<\/p>\n
576<\/span><\/p>\n
\t      2\t (w)  Summons-case means a case relating  to
\n\t      an offence, and not being a warrant-case.
\n\t      2(x)- Warrant-case means a case relating to an
\n\t      offence,\tpunishable with death,\timprisonment
\n\t      for life or imprisonment for a term  exceeding
\n\t      two years.”\n<\/p><\/blockquote>\n
However,  by  Amending Act<\/a> 18 of 1981 the  Legislature,\t for
\ndealing\t  more\t effectively  with  persons   indulging\t  in
\nantisocial  activities like hoarding and blackmarketing\t and
\nfor combating the evil of inflationary prices, considered it
\nnecessary to make special provisions for a temporary  period
\nof  five years (extended by another five  years),namely,  to
\nprovide:\n<\/p>\n
(i) for the control, in a summary way of all offences  under
\nthe Act; and\n<\/p>\n
(ii)for the constitution. for the purposes of such trial, of
\nSpecial Courts, consisting of a Single Judge.
\nTo  achieve  this objective section 12A<\/a> was amended  with  a
\nview  to empowering the State Government for the purpose  of
\nproviding  speedy  trial of the offences under\tthe  Act  to
\nconstitute  as many Special Courts as may be  necessary\t for
\nsuch   area  or\t areas\tto  be\tto  be\tspecified   in\t the
\nnotification.\tSection 12AA<\/a> which too was inserted  by\t the
\nsaid  Amending\tAct<\/a> begins with a  non-obstance\t clause\t and
\nprovides  that all offences under the Act shall\t be  triable
\nonly by the Special Court constituted for the area in  which
\nthe  offence was committed or where there are  more  Special
\nCourts\tthan  one  in such area by one of  them\t as  may  be
\nspecified  in this behalf by the High Court.  Clause (b)  of
\nsub-section  (1) of section 12AA<\/a> next provides that where  a
\nperson\taccused\t of  or suspected of the  commission  of  an
\noffence\t under this Act is forwarded to a  Magistrate  under
\nsub-section  (2)  or subsection (2A) of Section 167<\/a>  of\t the
\nCode,  such Magistrate may authorise the detention  of\tsuch
\nperson\tsuch  custody  as he thinks fit for  a\tperiod.\t not
\nexceeding  15 days in the whole where such Magistrate  is  a
\nJudicial  Magistrate  and  7 days in the  whole\t where\tsuch
\nMagistrate  is an Executive Magistrate unless his  detention
\nfor  such  period is unnecessary.  Clause (c) of  that\tsub-
\nsection is relevant for our purpose and may be extracted:\n<\/p>\n
\t      “(c)  The Special Court, may, subject  to\t the
\n\t      provisions  of  clause (d)  of  this  Section,
\n\t      exercise,\t in relation to person forwarded  to
\n\t      it   under clause (b), the said power which  a
\n\t      Magistrate having jurisdic-\n<\/p><\/blockquote>\n
577<\/span><\/p>\n
\t      tion to try a case may exercise under  section
\n\t      167<\/a>  of  the Code in relation  to\t an  accused
\n\t      person in such case who has been forwarded  to
\n\t      him under this section.”\n<\/p><\/blockquote>\n
Sub-clause (d)provides that no court other than the  Special
\nCourt  or the High Court shall release an accused  on  bail.
\nSub-clause  (f)\t of this sub-section is\t also  relevant\t and
\nreads as under:\n<\/p>\n
\t      “(f)  All\t offences under this  Act  shall  be
\n\t      tried  in a summary way and the provisions  of
\n\t      sections\t262<\/a> to 265<\/a> (both inclusive)  of\t the
\n\t      Code<\/a>  shall. as far as may be. apply  to\tsuch
\n\t      trioal;\n<\/p><\/blockquote>\n
\t      Provided that in the case of any conviction in
\n\t      a summary trial under this section it shall be
\n\t      lawful  for  the Special Court  to  pass\tsuch
\n\t      sentence\tof  imprisonment  for  a  term\t not
\n\t      exceeding two years.”\n<\/p><\/blockquote>\n
It will thus be seen that while the penalty provided for  an
\noffence\t under section 7(1)<\/a> (a) (ii) extends to seven  years
\nand  fine,  by\tvirtue of clause (f) of\t subsection  (1)  of
\nsection\t 12AA<\/a>  if  the offence is tried\t in  a\tsummary\t way
\napplying  the provisions of sections 262<\/a> to 265<\/a> of the\tCode
\nthe penalty would be restricted by the proviso to a  maximum
\nof  two\t years, which would, it is argued,  bring  the\tcase
\nwithin the meaning of a ‘summons-case’ as defined in section
\n2(w)<\/a>  of  the Code, thereby attracting\tsub-section  (5)  of
\nsection\t 167<\/a>  of  the Code.  It\t would\tbe  advantageous  to
\nreproduce  sub-section (5) of section 167<\/a> of the  Code.\t  It
\nreads as under:\n<\/p>\n
\t      “If  in any case triable by a Magistrate as  a
\n\t      summons-case,   the   investigation   is\t not
\n\t      concluded\t within a period of six months\tfrom
\n\t      the  date on which the accused  was  arrested,
\n\t      the  Magistrate shall make an  order  stopping
\n\t      further investigation into the offence  unless
\n\t      the officer making the investigation satisfies
\n\t      the Magistrate that for special reasons and in
\n\t      the  interest of justice the  continuation  of
\n\t      the  investigation  beyond the period  of\t six
\n\t      months is necessary.”\n<\/p><\/blockquote>\n
To  complete reference to the provisions of the Act  we\t may
\nalso  state  that section 10A<\/a>  posits  that  notwithstanding
\nanything  contained  in the Code<\/a>, every\t offence  punishable
\nunder the Act shall be cognizable and non-bailable.  Section
\n11<\/a>  provides  that cognizance of an offence  under  the\t Act
\nshall be taken only on a written report.  Section 12AC<\/a> makes
\nthe provisions of the Code<\/a> applicable to proceedings be fore
\na  Special Court unless otherwise provided.These,  in  brief
\nare
\n578<\/span>
\nthe  relevant provisions of the Act and the Code<\/a> with  which
\nwe are concerned.\n<\/p>\n
It may here be mentioned that section 12A<\/a> was first inserted
\nby  Amendment  Act<\/a> of 1964.  It then empowered\tthe  Central
\nGovernment  to\tspecify any order under section 3<\/a>  to  be  a
\nspecial\t order\tthe  contravention  whereof  may  be   tried
\nsummarily to which the provisions of sections 262<\/a> to 265<\/a>  of
\nthe Code were made applicable.\tThe proviso stipulated\tthat
\nin  the\t case of conviction in a summary trial it  shall  be
\nlawful for the Magistrate to pass a sentence of imprisonment
\nnot exceeding one year, Subsequently by Amendment Act<\/a> 18  of
\n198 1. section 12A<\/a> was substituted by the present provisions
\nand  new  sections 12AA<\/a> to 12AC<\/a> were inserted.\t The  avowed
\nobject of these legislative changes was expeditious disposal
\nof  offences  under  the Act  by  Special  Courts  employing
\nsummary procedure and applying the provisions of the Code<\/a> to
\nsuch  trials save as otherwise provided.  This\tenabled\t the
\nSpecial Courts to take cognizance of the offences under\t the
\nAct  without a formal order of commitment.  It thus  becomes
\nclear  from the plain language of the provisions  introduced
\nby  Act\t 18 of 1981 that the legislature desired  to  ensure
\nthat  all offences under the Act were tried by\tthe  Special
\nCourt  Constituted  under Section 12A<\/a> in  a  summary  manner
\napplying  the provisions of sections 262<\/a> to 265<\/a> of the\tCode
\nand further provided that in case of conviction the sentence
\nshall not exceed two years, bringing the offence within\t the
\ndefinition  of a summons-case under the Code<\/a>.  But  for\t the
\ninsertion  of  section 12A<\/a> in its present form\tand  section
\n12AA<\/a>,  the offence under section 7<\/a> (1) (a) (ii) of  the\t Act
\nwould  have attracted the definition of a warrant-case.\t  It
\nis, therefore, obvious that the Amending Act<\/a> 18 of 1981\t has
\nbrought about a substantial change.\n<\/p>\n
The  position in law as emerging after the amendment of\t the
\nAct by Act 18 of 1981 is crystal clear, namely, that on\t the
\nconstitution  of special Courts all offences under  the\t Act
\nare triable only by the Special Court for the Area in  which
\nthe  offence  has  been committed.   Section  12AA<\/a>  (1)\t (b)
\nprovides that where a person accused of an offence under the
\nAct  is\t forwarded to a Magistrate under subsection  (2)  or
\nsub-section (2A) of section 167<\/a> of the Code, such Magistrate
\nis  empowered to authorise the detention of such  person  in
\nsuch custody as he thinks fit for a period not exceeding  15
\ndays  in  the  whole where such\t Magistrate  is\t a  Judicial
\nMagistrate  and\t 7 days in the whole where he  is  Executive
\nMagistrate.   Clause (c) of that sub-section  provides\tthat
\nthe  Special  Court may exercise in relation to\t the  person
\nforwarded  to  it under clause (b), the same power  which  a
\nMagistrate  having jurisdiction to try a case  may  exercise
\nunder  section\t167<\/a> of the Code in relation  to\t an  accused
\nperson in such case who has been forwarded to him under that
\nsection.  Section 12AC<\/a> says that the provisions of the\tCode<\/a>
\nshall  apply to proceedings before a Special Court  save  as
\notherwise provided in the Act.\tA  conjoint reading of these
\nprovisions makes it clear, that after the constitution of
\n579<\/span>
\nSpecial\t Courts all offences under the Act have to be  tried
\nby that court in a summary way by applying the provisions of
\nsections  262<\/a>  to  265<\/a> (both inclusive) of  the\t Code<\/a>.\t The
\nproviso\t places\t a fetter on the power of the Court  in\t the
\nmatter\tof  passing a sentence on conviction,  namely,\tthat
\nnotwithstanding\t the  fact  that  section  7<\/a>  (1)  (a)\t(ii)
\nprescribes a punishment extending upto seven years and fine,
\nSpecial Court shall not pass a sentence of imprisonment\t for
\na  term\t exceeding  two years.\tIt  is\tthis  proviso  which
\nattracts the definition of a summons-case, the trial whereof
\nmust  be  undertaken in accordance with\t the  procedure\t out
\nlined  in Chapter XX of the Code.  Chapter XXI of  the\tCode
\ndeals  with Summary Trials.  Section 262<\/a> of the\t Code  which
\noutlines  the procedure for summary trials in  terms  states
\nthat  the procedure specified in the Code<\/a> for the  trial  of
\nsummons-case  shall be followed, except otherwise  provided.
\nSection\t 16<\/a>.7  (5)  says that if in any case  triable  as  a
\nsummons-case,  the investigation is not concluded  within  a
\nperiod of six months from the date on which the accused came
\nto be arrested. the Magistrate shall make an order  stopping
\nfurther\t  investigation\t  into\tthe   offence\tunless\t the
\nMagistrate,  for  special reasons and in  the  interests  of
\njustice considers it necessary to permit continuation of the
\ninvestigation.\tThe prosecution in question being a summons-
\ncase  triable in a summary manner as per procedure  outlined
\nin  sections 262<\/a> to 265<\/a> of the Code, which in turn  attracts
\nthe procedure meant for summons case, it is obvious that the
\npower  conferred  by sub-section (5) of section 167<\/a>  can  be
\ninvoked\t by  the Special Court by virtue of  clause  (c)  of
\nsection\t 12AA<\/a> (1) of the Act which in terms states that\t the
\nSpecial\t  Court\t may  exercise\tthe  same  powers  which   a
\nMagistrate may exercise under section 167<\/a> of the Code.\tThus
\na  special  Court is expressly empowered by  clause  (c)  of
\nsection\t 12AA<\/a>  (1)  to\texercise the  same  powers  which  a
\nMagistrate  having jurisdiction to try a case  may  exercise
\nunder  section\t167<\/a> of the Code in relation  to\t an  accused
\nperson\twho has been forwarded to him under that  provision.
\nWe  have, therefore, no manner of doubt that the High  Court
\nwas right in concluding that section 167<\/a> (5) of the Code<\/a> was
\nattracted  in  the present case and the\t Special  Court\t was
\nentitled  to  exercise\tthe power  conferred  by  that\tsub-
\nsection.  That being so the view taken by the Division Bench
\nof  the\t Calcutta  High Court in the case  of  Jnan  Prakash
\n(supra) insofar as it relates to the application of  section
\n167<\/a>  (5) to an offence under section 7<\/a> (1) (a) (ii)  of\t the
\nAct  triable by the Special Court constituted under  section
\n12A<\/a> of the Act cannot be doubted.  That is also the view  of
\nthe  High  Court  of Andhra Pradesh in the  case  of  Public
\nProsecutor, High Court of Hyderabad (supra).  Therefore, the
\nSpecial\t Court\tcan  stop  further  investigation  into\t the
\noffence\t if  the  investigation is not\tconcluded  within  a
\nperiod\tof six month from the day of arrest of\tthe  accused
\nperson\tunless\tfor special reasons and in the\tinterest  of
\njustice\t the continuation of the investigation\tbeyond\tthat
\nperiod is necessary.  In the present case the officer making
\nthe  investigation  had\t not sought the\t permission  of\t the
\nSpecial Court to continue with the investigation even  after
\nthe expiry of six months.The object of
\n580<\/span>
\nthis  sub-section clearly is to ensure prompt  investigation
\ninto  an offence triable as summons-case to  avoid  hardship
\nand harassment to the accused person.  Both the High  Courts
\nof  Calcutta  and Andhra Pradesh have taken  the  view\tthat
\nafter  the  amendment of the Act by Act 18 of 1981  and\t the
\nintroduction  of  section 12AA<\/a> the power  conferred  on\t the
\nMagistrate under section 167<\/a> (5) of the code is exercisable
\nby  the Special Court constituted under section 12A<\/a>  of\t the
\nAct.   We also concur with the High Court of  Calcutta\tthat
\nthe  two decisions rendered by the learned Single Judges  of
\nthat  Court  earlier in point of time did not lay  down\t the
\ncorrect law.  Similarly the Division Bench of the High Court
\nof Andhra Pradesh was also right in holding that sub-section
\n(5)  of\t section  167<\/a> of the Code  would  be  applicable  to
\nprosecutions under the Act triable by the Special Court.
\nThe  taxes  us\tto the question whether\t the  Special  Court
\ncan,beside  directing stoppage of  investigation,  entertain
\nand act on a charge-sheet or a police report submitted under
\nsection 173<\/a> (2) of the Code<\/a> in such cases.  The expression 1
\npolice\treport’\t has been defined under the Code<\/a> to  mean  a
\nreport\tforwarded by a police officer to a Magistrate  under
\nsub-section (2) of section 173<\/a> [section 21<\/a>. Section 173<\/a> lays
\ndown  that  every investigation under Chapter XII  shall  be
\ncompleted  without  unnecessary delay and as soon as  it  is
\ncompleted, the officer incharge of the police station  shall
\nforward to a Magistrate empowered to take cognizance of\t the
\noffence on a police report, a report in the form  prescribed
\nby  the\t State Government.  It will thus be  seen  that\t the
\npolice\treport under section 173(2)<\/a> has to be  submitted  as
\nsoon  as  the  investigation  is  completed.   Now,  if\t the
\ninvestigation  has been stopped on the expiry of six  months
\nor the extended period, if any by the Magistrate in exercise
\nof power conferred by sub-section (5) of section 167<\/a> of\t the
\nCode,  the investigation comes to an end and, therefore,  on
\nthe  completion of the investigation section 173(2)<\/a>  enjoins
\nupon the officer-in-charge of the police station to  forward
\na  report in the prescribed form.  There is nothing in\tsub-
\nsection\t  (5)  of  section  167<\/a>\t to  suggest  that  if\t the
\ninvestigation  has  not\t been completed\t within\t the  period
\nallowed\t by that sub-section, the officer-in-charge  of\t the
\npolice\tstation will be absolved from the responsibility  of
\nfiling the police report under section 173(2)<\/a> of the Code on
\nthe stoppage of the investigation, The High Court of  Andhra
\nPradesh rightly observed in paragraph 13 of the Judgment  as
\nunder:\n<\/p>\n
\t      “Under the new Code in addition to  definition
\n\t      for investigation’ in section 2(h)<\/a>, a separate
\n\t      definition  for  ‘police report’ is  given  by
\n\t      section  2(r)<\/a>.   This coupled with  the  newly
\n\t      introduced  sub-section  (5)  of\tsection\t 167<\/a>
\n\t      brings\tout    the    distinction    between
\n\t      investigation  by\t the police and\t the  police
\n\t      report on which a court is to take cognizance.
\n\t      The  report  cannot  now\tbe  said  to  be  an
\n\t      integral part of
\n581<\/span>
\n\t      investigation.   The introduction\t of  section
\n\t      167<\/a> (5) in the Code<\/a>, cannot have the effect of
\n\t      invalidating the investigation done within the
\n\t      period of six months or enabling the court  to
\n\t      stopping\tthe  filing of police  report  under
\n\t      section  173<\/a> (2).\t If the\t investigation\tdone
\n\t      during  the period of six months discloses  an
\n\t      offence, a police report may be founded on  it
\n\t      and  the\tcourt  can take\t cognizance  of\t the
\n\t      same.”\n<\/p><\/blockquote>\n
in  Hussainara\tKhantoon & Ors. v. Home Secretary  State  of
\nBihar,\tPatna<\/a>  1  9791 3 SCR 760 this Court  held  that\t the
\ninvestigation  done within the period of six months  is\t not
\nrendered  invalid  merely because the investigation  is\t not
\ncompleted  and further investigation is stopped.  The  exact
\nwords used are:\n<\/p>\n
\t      “…….\tin  such a case\t the  Magistrate  is
\n\t\t\t    bound   to\tmake  an  order\t stopping   furthe
\nr
\n\t      investigation in that event, only two  courses
\n\t      would   be  open:\t either\t the   police\tmust
\n\t      immediately proceed to file a chargesheet,  if
\n\t      the   in\tvestigation  conducted\t till\tthen
\n\t      warrants\tsuch  a course, or if  no  case\t for
\n\t      proceeding against the under trial prisoner is
\n\t      disclosed by the investigation, the undertrial
\n\t      must be released forthwith from detention.”
\nWe,  therefore\t,concur with the view taken  by\t the  Andhra
\nPradesh High Court in this regard.\n<\/p>\n
In  the result we partly allow this appeal.  While we  agree
\nwith  the view taken by the High Court of Calcutta  that  in
\nthe  case  of an offence punishable under section  7(1)<\/a>\t (a)\n<\/p>\n
(ii)  of  the  Act  which  is  tried  by  a  Special   Court
\nconstituted under section 12A<\/a>, the provision of\t sub-section
\n(5)  of\t section  167<\/a>  of the Code  gets  attracted  if\t the
\ninvestigation  has  not\t been completed\t within\t the  period
\nallowed\t by  that sub-section but we find  it  difficult  to
\nsustain\t that part of the order of the High Court  by  which
\nthe  order  of the Special Court taking\t cognizance  of\t the
\noffence\t on the police report, i.e., charge-sheet  submitted
\nunder  section 173<\/a> (2) of the Code<\/a> came to be  quashed.\t  We
\nset  aside that latter part of the order and hold  that\t the
\nSpecial\t Court was competent to entertain the police  report
\nrestricted  to six months investigation and take  cognizance
\non  the\t basis\tthereof.  We,  therefore,  direct  that\t the
\nSpecial\t Court will proceed with the trial from\t that  stage
\nonwards\t and  complete\tthe same as  early  as\tpossible  in
\naccordance with law.\n<\/p>\n
VPR.\n<\/p>\n
\t\t      Appeal partly allowed.\n<\/p>\n
583<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of West Bengal vs Falguni Dutta And Another on 5 May, 1993 Equivalent citations: 1993 SCR (3) 570, 1993 SCC (3) 288 Author: Ahmadi Bench: Ahmadi, A.M. (J) PETITIONER: STATE OF WEST BENGAL Vs. RESPONDENT: FALGUNI DUTTA AND ANOTHER DATE OF JUDGMENT05\/05\/1993 BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) […]<\/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":[30],"tags":[],"class_list":["post-249722","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of West Bengal vs Falguni Dutta And Another on 5 May, 1993 - 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-west-bengal-vs-falguni-dutta-and-another-on-5-may-1993\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of West Bengal vs Falguni Dutta And Another on 5 May, 1993 - 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