Sawai Singh and Rajkumar Sharma vs The State of Manipur and Others

A.K. Patnaik, J.—In these two Criminal Revisions, orders dated 25.7.1993 of the Judicial Magistrate 1st Class, Imphal in Criminal (P) Cases No. 47 and 48 of 1993 taking cognizance of offences under Sections 53(a) of the Eastern Bengal and Assam Excise Act 1910 against the two Petitioners u/s 190 of the Code of Criminal Procedure 1973 on the basis of the police reports are under challenge.

The ease of the Petitioner in Criminal Revision No. 16 of 1993 is that he was entrusted with some stock of the Indian made Foreign Liquor by the Commandant, 1st Battalion Manipur Rifles, Imphal and the case of the Petitioner in Criminal Revision case No. 18 of 1993 is that he was entrusted with some stock of Indian made Foreign Liquor by the Commandant 2nd Battalion Manipur Rifles, imphal. The further case of the Petitioners in both the cases is that the aforesaid entrustment of the Indian made Foreign Liquor was with the knowledge and consent of the Excise Authorities, But unfortunately the police seized the said stock of Indian made Foreign Liquor from the possession of the Petitioner and submitted a charge sheet before the Judicial Magistrate, 1st Class, Imphal alleging that the Petitioners have committed the offence of possessing and selling Indian made Foreign Liquor u/s 53(a) of the Eastern Bengal and Assam Excise Act 1910 and on the basis of the said charge sheet filed by the police, the learned Judicial Magistrate, 1st Class, Imphal by his impugned orders dated 25.7.93 look cognizance of the offence against both the Petitioners u/s 190 of the Code of Criminal Procedure.

On these facts Mr. T. Nandakumar Singh, learned Counsel for the Petitioners, submits that the cognizance by the Magistrate on the basis of investigation by police and report of the police was barred u/s 65 of the Eastern Bengal and Assam Excise Act 1910 which is in force in the State of Manipur. Mr. Singh submits that under the said Section 65 of the Act, the Magistrate could take cognizance of the offence punishable u/s 53 of the Act on the complaint or report of "Excise Officer" and the expression "Excise Officer" has been defined u/s 3(9) of the Act to mean Collector or any officer or other person appointed or invested with the power u/s 8. Mr. Singh further submits that the police has not been appointed u/s is of the Act nor has been vested with any powers under the said Section 8 of the Act and therefore a police officer is not an "Excise Officer" within the meaning of the said Act and a complaint or report made by the police officer is not a complaint or report of an Excise Officer on the basis of which the Magistrate could take cognizance of an offence u/s 53 of the Act as provided in Section 65 of the Act. Mr. Singh develops the aforesaid submission by referring to the provisions of Sections 42 and 43 of the Act to show that the power to investigate into the various offences under the Act has been vested not on t he police but on the Collector or any other Excise Officer and accordingly the investigation has to be done by either the Collector or the Excise Officer and the report has to be submitted to the Magistrate by such Collector or Excise Officer. Mr. Singh also brings to my notice the provisions of Section 41 and 45 of the Act to show that wherever the Legislature intended that the police should be vested with some specific powers, express provisions have been made in the Act empowering the police to do those specific Acts. In Section 41 of the Act the police have been vested with the power to search, seize and arrest without warrant in emergent cases. u/s 45 of the Act the police has been vested with the power to take into custody articles seized under the Act. Mr. Singh further submits that Section 4(2) of the Code of Criminal Procedure 1973 and Section 5 thereof would show that the Code of Criminal Procedure 1973 will have to give way to a special Act conferring special jurisdiction or prescribing any special form of procedure. Since the Eastern Bengal and Assam Act 1910 is a special Act conferring special jurisdiction with regard to investigation on the Collector and the Excise Officer, the powers of investigation conferred on the police under the Code of Criminal Procedure 1973 cannot be exercised by the police in respect of offences under the aforesaid special Act. Similarly, Mr. Singh submits that Section 65 of the aforesaid Special Act prescribes a special form of procedure for cognizance of offences under the Special Act and the Magistrate cannot disregard the provision contained therein that no cognizance pf an offence under the Act can be taken except on a report or complaint of an Excise Officer. Hence, the cognizance taken by the Magistrate on the basis of such report or a complaint by the police and not the Excise Officer is also without jurisdiction and is liable to be quashed.

Mr. Jagatchandra Singh learned Public Prosecutor, on the other hand, submits that under Sections 37, 38 and 41 of the Eastern Bengal and Assam Act 1910 a notification dated 15th June, 1976 has been issued prescribing that all Police Officers of Manipur not below the rank of Assistant Sub-inspector of Police are officers for the purpose of the said sections and accordingly police officers with the rank of the Assistant Sub Inspector of Police have the powers of investigation. The learned Public Prosecutor further submits that the charge sheet submitted by the police in the present case was a police report in terms of Section 190(1)(b) of the Code of Criminal Procedure 1973 and the Magistrate was competent to take cognizance on the basis of the said police report in exercise his powers u/s 190 Code of Criminal Procedure. The learned Public Prosecutor further submits that assuming for the sake of arguments that u/s 65 of the Eastern Bengal and Assam Excise Act 1910 the Magistrate could not take cognizance of an offence on a police report, the Magistrate had the power under the said Section 65 to take cognizance on his own knowledge or suspicion and hence the cognizance already taken by the Magistrate cannot be said to be incompetent. Learned Public Prosecutor also submits that assuming that the Magistrate had no power u/s 65 of the aforesaid Act to take cognizance of the offence except on a complaint or a report of an Excise Officer, now that the Magistrate has taken cognizance of the offence by the impugned order dated 25.7.93 u/s 190 Code of Criminal Procedure on the basis of the police report, irregularity, if any, committed by the Magistrate by taking the cognizance would not vitiate the proceeding in view clause (c) of Section 460 of the Code of Criminal Procedure 1973.

Mr. Singh counsel for the Petitioner cites before me the decisions of the Apex Court reported in Daulat Ram Vs. State of Punjab, and the decision of the Assam High Court reported in AIR 1952 Assam 68 and submits that in these two cases it has been held that Section 195 of the Code of Criminal Procedure which contains similar provision as Section 65 of the Eastern Bengal and Assam Excise Act 1910 was a complete bar on the Magistrate taking cognizance of an offence except on a complaint by the persons named in the said Section. Mr. Singh further submits that the decision of the Apex Court in Daulat Ram Vs. State of Punjab, would further show that a cognizance taken on the basis of a complaint made by a person other than those mentioned in Section 195 Code of Criminal Procedure has been held to be void ab initio and without jurisdiction. Mr. Singh also cites before me the decisions reported in Asha Das and Others Vs. The State, which are also in similar lines.

Mr. Jagatchandru Singh, learned Public Prosecutor cites before me the decision of the Apex Court in the cases reported in Bhajahari Mondal Vs. The State of West Bengal, in support of his contention that where a Magistrate not empowered to do an act does any of the acts mentioned in Section 529 of old Code of Criminal Procedure or Section 460 Code of Criminal Procedure 1973, the defects or irregularity in the act of the Magistrate stands cured by virtue of Section 529 of the Code of Criminal Procedure (old) and Section 460 of the Code of Criminal Procedure 1973.

Having perused all the aforesaid decisions cited by Mr. Singh, counsel for the Petitioner and Mr. Jagaichandra, learned Public Prosecutor, I find that none of the aforesaid decisions have dealt with the point raised in this case as to whether in view of what has been provided in Section 460 of Code of Criminal Procedure 1973 and what was provided in Section 529 of the old Code of Criminal Procedure, cognizance taken by the Magistrate on a report or a complaint otherwise than by a person authorised to make the report or a complaint is without jurisdiction and void ab initio or is a mere irregularity which stands cured by virtue of the afore said Section of the Code of Criminal Procedure The point therefore has to be decided independently of the aforesaid decisions and on the basis of the facts of the present case.

In the present case, admittedly the cognizance has been taken by the Magistrate on the basis of a charge sheet or a police report and not on the basis suspicioun or knowledge of the Magistrate. Accordingly, the submission of the learned Public Prosecutor that the cognizance can be said to have been taken by the Magistrate on his own knowledge or suspicion has no factual basis. The question therefore is as to whether the Magistrate could have taken cognizance on the basis of the charge sheet or police report Section 65 and Section 42 and 43 of the Eastern Bengal and Assam Excise Act 1910 which are relevant for this case are quoted herein below:

Section 65: Initiation of prosecutions (1) No Magistrate shall take cognizance of an offence punishable-

(a) under Sections 53, 54, 55, or 60 except on his own knowledge or suspicion, or on the complaint or report of an Excise Officer;

(b) u/s 56, 57, 58 or 62 except on complaint or report of a Collector or other officer empowered u/s 42, Sub-section (2) to investigate the case; or

(c) under clauses (d) and (e) of Section 61 except with the sanction of the District Collector.

(2) Except With the special sanction of the Provincial Government no Magistrate shall take cognizance of any offence punishable under this Act, unless the prosecution is instituted within six months after the commission of the offence.

Section 42: Power to investigate- (1) A Collector may, without the order of a Magistrate investigate any offence punishable under this Act which a Court having jurisdiction over the local area within the limits of such Collector''s jurisdiction would have power to inquire into or try under the provisions of Chapter XV of the code of Criminal Procedure, 1898, relating to the place of inquiry or trial.

(2) Any other Excise Officer when specially empowered in this behalf by the provincial 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 a 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.

Section 43: Powers of investigating officers (1) Any Collector or other officer empowered under the provisions of Section 42, Sub-section (2), having recorded in writing his reason for suspecting the commission of an offence which he is empowered to investigate may exercise the powers conferred upon a Police officer making an investigation or upon an officer in charge of a police station by Section 160 to 171 of the Code of Criminal Procedure, 1898, and, as regards offence punishable under Sections 53, 54, 55, 56, 57 and 60 of this Act, the powers conferred upon such Police Officers, in respect of cognizable offences by the first clause of Sub-section (1) of Section 54 and by Section 56 of the said Code.

(2) Subject to such restriction as the Provincial Government may prescribe, a Collector or, with the previous permission of the Collector but not otherwise, any other officer specially empowered u/s 42 may, without reference to a Magistrate and for reasons to be recorded by him in writing, stop further proceedings against any person concerned or supposed to be concerned in any offence which he has investigated.

(3) For the purposes of the provisions of Section 166 of Code of Criminal Procedure, 1898, the area to which an officer specially empowered u/s 42 Sub-section (2), is appointed shall be deemed to be a Police Stat ion, and such officer, the officer in charge of such station.

(4) As soon as an investigation u/s 42 has been completed, if it appears that there is sufficient evidence to justify the forwarding of the accused to a Magistrate the investigating officer, when he does not proceed under Sub-section (2) or u/s 70 shall submit a report, which for the purposes of Section 190 of the Code of Criminal Procedure, 1898, shall be deemed to be a police report, in such form as the Provincial Government may prescribe to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offence on police report.

A plain reading of the aforesaid Section 65(1)(a) of the Act would show that where the Magistrate does not take cognizance of an offence on his own knowledge or suspicion, he can do so only on the complaint or report of an Excise Officer. No notification has been brought to my notice by the learned Public Prosecutor to show that a Police Officer has been appointed u/s 8 of the Act to carry out the duties under the Act as an Excise Officer, The only notification that has been filed before me is the notification dated 15.6.1976 which is extracted herein below:

In exercise of the powers conferred by Section 37, Sub-section (1) of Section 38 and Section 41 of the Eastern Bengal and Assam Excise Act 1910 as extended to Manipur the Governor of Manipur is pleased to prescribe all Police Officers of Manipur not below the rank of the Assistant Sub-Inspector of Police as the officers for the purpose of the said Sections.

A plain reading of the aforesaid notification would show that Police Officers have only been vested with the powers u/s 37 to enter and inspect any place etc. and powers u/s 38 and 41 to arrest without warrant, seize and detain etc. But by the said notification a Police Officer has not been vested with the power to investigate in respect of the any offence under the Act. On the contrary, Sections 42 and 43 of Act quoted above vest the power to investigate in respect of an offence under the Act on the Collector or an Excise Officer. Sub-section 4 of Section 43 of the Act further provides that as soon as the investigation is complete, and it appears that there is sufficient evidence justifying the forwarding of the accused to a Magistrate the Investigating Officer shall submit a report, which for the purpose of Section 190 of the. Code of Criminal Procedure 1898 shall be deem to be a police report, In view of the aforesaid clear provision, only a report submitted by the Investigating Officer, namely the Collector or any other Excise Officer is a police report for the purpose of Section 190(1)(b) of the Code of Criminal Procedure 1973 and a charge sheet or a report submitted by the police in respect of an offence under the aforesaid Eastern Bengal and Assam Excise Act 1910 will not be a police report for the purpose of Section 190(1)(b) of the Code of Criminal Procedure 1973. On the aforesaid analysis therefore the Magistrate could not have taken cognizance of the offence u/s 53 of the Act on the basis of an investigation report filed by the police because (1) such a cognizance was barred by Section 65 of the aforesaid special Act and (ii) the report or charge sheet submitted by police was not a police report for the purpose of Section 190(1)(b) of the Code of Criminal Procedure 1973.

The further question is whether the aforesaid irregularity committed by the Magistrate for taking a cognizance contrary to the provision of Section 65 of the Act or on the basis of a report which was not a police report for the purpose of 190(1)(b) of the Code of Criminal Procedure 1973 was saved by Section 460 of the Code of Criminal Procedure 1973. In my opinion the aforesaid irregularity was not saved by Section 460 of the Code of Criminal Procedure for two good reasons. (1) The language of Section 460 makes it very clear that the proceeding of the Magistrate shall not be set aside "merely on the ground of his not being so empowered." But this is not a case where the proceedings of the Magistrate taking cognizance of the offence are bad "merely on the ground of not of his not being so empowered". This is a case where the cognizance was bad because while taking the cognizance the Magistrate had ignored the provisions of the Special Act, namely Section 65 and Section 43(4) of the Eastern Bengal and Assam Excise Act, 1910. (ii) At any rate, the case would fall u/s 460(e), if the Magistrate takes cognizance of an offence under Clause-b of Sub-section 1 of Section 190 of the Code of Criminal Procedure 1973, i.e. on the basis of a police report. But as held by me above the report submitted by the police on the basis of which the Magistrate took cognizance was not a police report for the purpose of Clause-b of Sub-section 1 of Section 190 Code of Criminal Procedure, in view Section 43(4) of the Eastern Bengal and Assam Excise Act 1910 which provides that the report of the Investigating Officer i.e. the Collector or the Excise Officer, shall be deemed to be a police report for the purposes of Section 190 of the Code of Criminal Procedure.

On an overall analysis of the provisions of the Code of Criminal Procedure 1973 and the Eastern Bengal and Assam Act 1910, the net conclusion is that the Magistrate while taking the cognizance of the offences u/s 53 of the Assam Eastern Bengal Excise Act 1910 contravened the provisions of the aforesaid special Act which prevailed over the general provisions of the Code of Criminal Procedure 1973 by virtue of Sub-section 2 of Section 4 and Section 5 of the Code of Criminal Procedure 1973 and such a case of irregularity on the part of the Magistrate cm account of contravention of the special Act was not covered by Section 460 of the Code of Criminal Procedure 1973.

In the result, the impugned orders dated 25.7.93 in Criminal (P) Case No. 47/93 and in Criminal (P) Case No. 48/93 of the Judicial Magistrate 1st Class, Imphal taking cognizance of offence u/s 53 of the Eastern Bengal and Assam Excise Act 1910 against the two Petitioners on the basis of a Police Report u/s 190 Code of Criminal Procedure are vitiated and are hereby quashed.