15 September 1964
Supreme Court


Case number: Appeal (crl.) 49 of 1964






DATE OF JUDGMENT: 15/09/1964


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