State of Orissa vs Manguli Sahu

S. Acharya, J.—This is an appeal u/s 417(1), Criminal Procedure'' Code against the order of acquittal passed by the Sub-Divisional Magistrate, Athagarh in G.R. Case No. 146/69.

The prosecution case, in short, is that while PWs. 1, 2 and 4 and some other constables attached to the Tigiria police station were on patrol duty in the night of 13-9-1969, at about 2.30 A.M. in the night they saw two persons going towards Nuapatna on cycles carrying something in gunny bags. The constables chased them, and they could catch hold of only one of them, i.e., the accused in this case, and they found that the gunny bag in his possession contained five bundles of telegraph wire. P. ws. 3 and 5, who happened to pass on the way at that time, also saw that the accused then was in possession of the said telegraph wire. The accused was taken to the police station, the copper wire in his possession weighing Kg. 25.100 grams was seized by P.W. 7, the Officer-in-charge of the Tigiria Police station and investigation started on the F.I.R. lodged by P.W. 1. These telegraph wires were sent to P.W. 6, the local E.S.T. for examination, and he after examination reported, as per ext. 2, that the said copper wires come within the definition of the words "telegraph wire" contained in Section 2 of the Telegraph Wires (Unlawful Possession) Act, 1950 (hereinafter referred to as the'' Act'') and that those wires were being used by the Posts and Telegraphs Department. Thereafter the charge sheet was submitted by the police and on the said charge sheet the accused was prosecuted only for offence u/s 5 of the Act.

The accused pleaded that the telegraph wires in question were not recovered from his possession and that he was falsely implicated in this case by the local police.

The Court below on the evidence on record arrived at the findings that the copper wires seized in this case were "telegraph wire" as defined u/s 2 of the Act; and that the accused was illegally in possession of the same. But it acquitted the accused on the finding that no ''complaint'' by the proper person, as contemplated u/s 7 of the Act, was filed in this case, and so the Court was not at all competent to take cognizance of the offence u/s 5 of the Act of which the accused was charged, and so the trial of the case was vitiated. Against the said order of acquittal the State has preferred this appeal.

At the outset it must be stated that on the charge sheet filed by the police the Court framed only one charge against the accused and that was u/s 5 of the Act, and in the trial of that case it followed the warrant procedure prescribed for cases instituted on police report. Section 7 of the Act makes a mandatory provision that no Court shall take cognizance of any offence punishable under this Act, save on a ''complaint'' made by or under the authority of the Central Government or by an officer specially empowered in this behalf by that Government. In this case no complaint, as contemplated u/s 7 of the Act, was filed. Rather, as stated above, the case proceeded on the filing of a charge sheet by the police. Over and above that defect, there is nothing on record to show that the police officer, who submitted the charge sheet, was specially empowered by the Government to file a ''complaint'' in respect of any offence punishable under -the Act.

Mr. Mohanty, the Additional Government Advocate appearing for the State, fairly concedes that a ''complaint'', as contemplated u/s 7 of the Act, was not filed in this case and so the Court was not competent to take cognizance of the offence u/s 5 of the Act, and it fell into an error by framing a charge against the accused u/s 5 of the Act and in trying him only for the said offence. Mr. Mohanty submits that on the charge sheet submitted in this case the Court, instead of framing a charge u/s 5 of the Act, should have framed a charge u/s 379 and/or 411, Indian Penal Code and should have tried the accused for that offence. It is submitted by him that since the offence is on an anti-social nature, even at this stage the case should be remanded to the trial Court for framing a charge against the accused u/s 379 and/or 411 Indian Penal Code and to, try him for the said offence. True it is that on the charge sheet filed in this case the Magistrate was not competent to take cognizance of an offence under the Act and so the trial of the accused for an offence u/s 5 of the Act was without jurisdiction of the Court. But on the said charge sheet the Magistrate was certainly competent to take cognizance of any offence under the Indian Penal Code and he could have charged and tried him for any such offences. Where facts mentioned in the charge sheet constitute one or more offences, the Magistrate initially may take cognizance of only certain offences but may'' try the accused for some other offences of which he had not taken cognizance, if he finds evidence and materials to support charges for such other offences. Moreover, if a Magistrate finds that he is not competent to take ''cognizance of the offence indicated in the charge sheet he should not take cognizance of the offence indicated in the charge sheet he should not take cognizance of the said offence, but on the same charge sheet he is free to take cognizance of any other offence not indicated in the charge sheet but, constituted on the facts stated in the charge sheet. When a Magistrate takes cognizance of an offence u/s 190(1)(b), he takes cognizance of all offences constituted on the facts reported in the charge sheet and not only of some such offences as specifically stated herein. In this respect the decision reported in Pramatha Nath Mukherjee v. State of West Bengal AIR 1060 S.C. 810, may be seen.

In the present case though the Magistrate was not competent to take cognizance of or try the accused for the offence u/s 5 of the Act, indicated in the charge sheet, he, on the selfsame charge sheet, could have taken cognizance of and framed charge against the accused for offences u/s 379 and/or 411, Indian Penal Code and tried the accused in accordance with law for the said offences.

Mr. Mohanty''s submission for remanding this case for fresh trial for the aforesaid offences under the Penal Code on setting aside the order of acquittal does not appeal to me as a sound proposition in the facts and circumstances of this case. The order of acquittal for the charge framed against the accused is perfectly correct. The accused was arrested in September, 1969; the charge sheet in the case was submitted in February, 1970; and the trial of the case ended on 3-7-1972. During the trial of the case for more than two years the prosecution did not bring it to the notice of the Court that on the charge sheet filed in this case the accused could not be tried for an offence u/s 5 of the Act of which alone the accused was charged. Neither the prosecution for the Court ever thought of amending the charge for an offence triable by the Court on the said charge sheet. This appeal was filed in February, 1973, and no attempt was made on behalf of the State for the early hearing of the case so that a submission for remand, as now made could possibly have appealed to this Court in view of the pernicious effect of the alleged act and such prompt action on the part of the State even at this level to set things a right. At this late stage after five years of the occurrence if the case is remanded for fresh trial as prayed for the prosecution witnesses have to be examined afresh on the new charge to be framed against the accused, for the entire trial from its inception was without jurisdiction as the Court was not competent to take cognizance of an offence under the Act. There is no certainty that the prosecution witness will at all be available for examination, and even if they are produced for examination whether they would be able to correctly state facts about affairs which took place five years age. The accused also may not be able to properly defend himself at this distance of time. While it is the duty of the Court to see that a guilty man is properly punished, it must also see that persons accused of crime are not indefinitely harassed in criminal proceeding for no fault of theirs.

As the prosecution did never take any steps to repair the defects in this case I do not seem it proper to allow the prosecution to repair the defects at this distance of time and at this stage and to try the accused afresh on a new charge about a matter which took place in the year 1969. As the prosecution is guilty of laches in not pointing out such an obvious error, and the Court was also negligent in framing charge against the accused, which it did not have jurisdiction to try, and neither the prosecution nor the Court, at any point of time, tried in any manner to eradicate the said mistake, I do not deem it proper at this point of time to order for the retrial of the accused, acquired in the year 1972. On above considerations the suggestion for the remand of the case is rejected.

For reasons stated above, the order of acquittal is well founded. The appeal accordingly is dismissed.