Karnataka High Court
Gadag Co-Operative Textile Mills Ltd. vs State Of Karnataka on 15 February, 1988
Equivalent citations: ILR1988KAR1489, 1989(3)KARLJ212
ORDER Kulkarni, J.
1. Cr.P.214/85 by the three accused persons is directed against the order dated 7-2-1985 passed by the Special Judge, Belgaum, in S.C.38/85 rejecting the application filed by the accused under Section 167(5).
Cr.R.P. 623/87 by the State is directed against the order dated 11-8-87 passed by the Special Judge, Gulbarga, in S.C. 13/87, discharging the accused.
Cr.R.P. 624/87 by the State is directed against the order dated 20-8-87 passed by the Special Judge, Gulbarga, in S.C. 19/87 discharging the accused.
Cr.R.P. 625/87 by the State is directed against the order dated 27-8-87 passed by the Special Judge, Gulbarga, in S.C. 18/87, discharging the accused.
Cr.R.P. 626/87 by the State is directed against the order dated 27-7-87 passed by the Special Judge, Gulbarga, in S.C.17/87, discharging the accused.
Cr.R.P.627/87 by the State is directed against the order dated 28-7-87 passed by the Special Judge, Gulbarga, in S.C. 15/87, discharging the accused.
Cr.R.P.628/87 by the State is directed against the order dated 11-8-87 passed by the Special Judge, Gulbarga, in S.C, 6/87, discharging the accused.
Cr.R.P.629/87 by the State is directed against the order dated 22-7-87 passed by the Special Judge, Gulbarga, in S.C.3/87, discharging the accused.
Cr.R.P.630/87 by the State is directed against the order dated 22-7-87 passed by the Special Judge, Gulbarga, in S.C.19/87, discharging the accused.
Cr.R.P.631/87 by the State is directed against the order dated 11-8-87 passed by the Special Judge, Gulbarga, in S.C. 28/86, discharging the accused.
Cr.R.P.632/87 by the State is directed against the order dated 17-8-87 passed by the Special Judge, Gulbarga, in S.C.23/87, discharging the accused.
2. In Crl. Petition No. 214/85, the accused persons were arrested on 3-5-83 for an offence under Section 3 read with Section 7 of the Essential Commodities Act, read with the violation of the Karnataka Cattle Fodder (Regulation of Export) Order, 1981. The charge-sheet was placed by the police on 30-12-83 i.e. beyond a period of six months from the date of the arrest of the accused persons.
In Crl. R.P. 623/87, the accused person was arrested on 13-8-86 for contravention of Sections 4 and 7 of the Karnataka Cement Control Order, 1983 read along with Sections 3 and 7 of the Essential Commodities Act. The charge-sheet was placed by the police on 12-3-87 i.e., beyond a period of six months from the date of the arrest of the accused.
In Cr.R.P.624/87, the accused person was arrested on 1-4-86 for contravention of Clause 3 of the Karnataka Oil Dealers Licensing Order, 1969, read with Sections 3 and 7 of the Essential Commodities Act. The charge-sheet was placed by the police on 26-6-87 i.e., beyond a period of six months from the date of the arrest of the accused.
In Cr.R.P.625/87, the accused persons were arrested on 30-10-85 for contravention of Clause 3(i) of the Karnataka Edible Oil Licensing Order 1977 read with Sections 3 and 7 of the Essential Commodities Act, The charge-sheet was placed by the police on 15-6-87 i.e. beyond a period of six months from the date of the arrest of the accused.
In Cr.R.P.626/87, the accused persons were arrested on 17-9-85 for contravention of Clause 3 of the Karnataka Edible Oil Dealer's Licensing Order, 1977, read with Sections 3 and 7 of the Essential Commodities Act. The charge-sheet was placed by the police on 15-6-87 i.e. beyond a period of six months from the date of the arrest of the accused.
In Cr.R.P.627/87, the accused persons were arrested on 13-1-84 for contravention of Section 9(1) of the Karnataka Rice and Paddy Procurement (Levy) Order, 1983, read with Sections 3 and 7 of the Essential commodities Act. The charge-sheet was placed by the police on 15-6-87 i.e. beyond a period of six months from the date of the arrest of the accused.
In Cr.R.P.628/87, the accused persons were arrested on 12-2-86 for contravention of the provisions of the Karnataka Pulses Dealer's Licensing Order, read with Sections 3 and 7 of the Essential Commodities Act. The charge-sheet was placed by the police on 25-2-87 i.e. beyond a period of six months from the date of the arrest of the accused.
In Cr.R.P.629/87, the accused person was arrested on 1-1-84 for contravention of Clause 3(b) of Sugar Dealer's Licensing Order, 1962, read with Sections 3 and 7 of the Essential Commodities Act. The charge-sheet was placed by the police on 21-1-87 i.e. beyond a period of six months from the date of the arrest of the accused.
In Cr.R.P.630/87, the accused persons were arrested on 3-1 -86 for contravention of Section 9 of the Karnataka Kerosene Dealer's Licensing Order, 1969 and contravention of Clause 3(1) of the Kerosene (Fixation of Ceiling Price), 1970 read with Sections 3 and 7 of the Essential Commodities Act. The charge-sheet was placed by the police on 20-8-86, i.e. beyond a period of six months from the date of the arrest of the accused.
In Cr.R.P.631/87, the accused person was arrested on 27-11-85 for contravention of Clause 9 of the Karnataka Kerosene Dealer's Licensing Order, 1969 read with Sections 3 and 7 of the Essential Commodities Act. The charge-sheet was placed by the police on 12-12-86, i.e. beyond a period of six months from the date of the arrest of the accused.
In Cr.R.P.632/87, the accused persons were arrested on 22-10-86 for contravention of the Karnataka Wheat and Wheat Producers (Wholesale) Dealers Licensing Order, 1977 read with Sections 3 and 7 of the Essential Commodities Act. The charge-sheet was placed by the police on 25-6-87 i.e. beyond a period of six months from the date of the arrest of the accused.
3. Thus in all the aforesaid cases, it is undisputed that the charge-sheets have been filed by the police after the expiry of six months from the date of arrest of the accused for contravention of the various acts and orders issued by the Government under the Essential Commodities Act.
4. In Crl. Petition No. 214/85 the Sessions Judge Belgaum took the view that the charge-sheet submitted beyond six months after the arrest of the accused is maintainable. Hence he declined to drop the proceedings holding that Section 167(5) Cr.P.C. did not apply to the facts of the case.
5. In all the other Revision Petitions, the Sessions Judge, Gulbarga took the view that all the cases were summons cases and as the charge-sheets were filed against the accused after the expiry of six months from the date of arrest, the accused had to be discharged. Accordingly, he discharged the accused in the said cases.
6. Section 167(5) of the Code reads as:
"If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for the special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary."
Therefore, a plain reading of Section 167(5) Cr.P.C. requires that the case should be one triable by the Magistrate as a summons case, and (ii) the investigation should not have been concluded for a period of six months. If these two requirements are satisfied then the Magistrate can proceed to stop the further investigiation into the offence. The Magistrate may also permit the further investigation if the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary. Stopping further investigation is different from discharging the accused persons. At worst, if the Magistrate orders stoppage of further investigation, he can only order the release of the accused persons. The term, 'discharge' in Cr.P.C. has got a particular significance. We find the term, 'discharge in Sections 251A and 258 and other similar provisions which come into play only after the final submission of the report by the police. There can be no discharge of the accused before the submission of the final report by the police. Therefore, the order passed in all these cases except Crl. Petition 214/85, discharging the accused persons, is opposed to Section 167(5) Cr.P.C. The only order that the Magistrate can make under Section 167(5) Cr.P.C. is the stopping of further investigation.
7. The next ingredient to attract the provisions of Section 167(5) is that the case should be triable by the Magistrate as a summons case. The summons case as defined by Section 2(w) of the code as :
" 'summons case' means a case relating to an offence, and not being a warrant case."
Section 2(x) Cr.P.C. defines warrant case as :
" 'Warrant case' means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years."
A reading of the above said two definitions would make it clear that every offence punishable with imprisonment for a term not exceeding two years would be a summons case and the rest of the offences would be warrant cases.
8. The I Schedule in Cr.P.C. only relates to the classification of offences under the Indian Penal Code. But, in order to find out the nature of the offences falling within the purview of other Acts and Orders, as framed by the Government, we still have to turn to Section 2(w) and 2(x) Cr.P.C. Therefore, if an offence under a particular Act or Order is punishable with imprisonment, not exceeding 2 years, it would be a summons case and if it is punishable with imprisonment exceeding two years it would be a warrant case. In all these cases, the offences are in relation to the contravention of the Rules, Orders and Acts promulgated by the Government read with the Sections 3 and 7 of Essential Commodities Act. The imprisonment prescribed by Section 7 may extend to 7 years. Therefore, all the offences which are the result of the breach of various Orders passed by the State Government under Section 3 of the Essential Commodities Act and which are punishable under Section 7 of the Essential Commodities Act, are punishable with imprisonment which may extend to 7 years. Therefore, the cases involved in all these revisions are warrant cases within the meaning of Section 2(x) of the Code of Criminal Procedure.
9. Chapter XVIII of the Cr.P.C. prescribes the procedure for the trial of the cases by the Sessions Court. Which are the cases triable by the Sessions Court can be easily found out with reference to the Schedule of Cr.P.C. Therefore, the procedure prescribed by Chapter XVIII applies to all the cases, which are exclusively triable by the Court of Sessions. Chapter XIX prescribes the procedure for the trial of warrant cases by the Magistrate. Chapter XX prescribes the procedure for trial of summons-cases by Magistrates. Merely because there is a difference between the procedures to be followed by the Sessions Judge, and the Magistrate in relation to the summons and warrant cases, it does not mean that the character of the offence being a summons case or warrant case would change with reference to the procedure prescribed by the Code for the trial of those cases. The procedure to be followed is one thing and the nature of the offence i.e. summons case or warrant case, is altogether a different thing.
10. Learned Counsel appearing for the accused persons contended that Section 12A of the Essential Commodities Act speaks about the constitution of the Special Courts. Section 12A of the Essential Commodities Act lays down as to which Officers can be appointed as Special Judges for the purposes of trying cases under the Essential Commodities Act. Section 12AA of the Essential Commodities Act (hereinafter referred to as 'the Act') reads as :
Offences triable by Special Courts :
(1) Notwithstanding anything contained in the Code.
(a)............
(b) Where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under Sub-section (2) or Sub-section (2A) of Section 167 of the Code, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate :
Provided that where such Magistrate considers --
(i) when such person is forwarded to him as aforesaid ; or
(ii) upon or at any time before the expiry of the period of detention authorised by him; that the detention of such person is unnecessary, he may, if he is satisfied that the case falls under the proviso to Section 8, order the release of such person on bail and if he is not so satisfied, he shall order such person to be forwarded to the Special Court having jurisdiction;
(c) the Special Court may, subject to the provisions of Clause (d) of this sub-section, exercise, in relation to the person forwarded to it under Clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code in relation to an accused person in such case who has been forwarded to him under that section ;
(d) save as aforesaid no person accused or suspected of the commission of an offence under this Act shall be released on bail by any Court other than a Special Court or the High Court :
Provided that a Special Court shall not release any such person oh bail --
(i) without giving the prosecution an opportunity to oppose the application for such release unless the Special Court, for reasons to be recorded in writing, is of opinion that it is not practicable to give such opportunity; and
(ii) Where the prosecution opposes the application, if the Special Court is satisfied that there appear reasonable grounds for believing that he has been guilty of the offence concerned :
Provided further that the Special Court may direct that any such person may be released on bait if he is under the age of sixteen years or is a woman or is a sick or infirm person, or if the Special Court is satisfied that it is just and proper so to do for any other special reason to be recorded in writing;
(e) a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act take cognizance of that offence without the accused being committed to it for trial;
(f) all offences under this Act shall be tried in a summary way and the provision of Sections 262 to 265 (both inclusive) of the Code shall, as far as may be, apply to such trial :
Provided that in the case of any conviction in a summary trial under this Section, it shall be lawful for the Special Court to pass a sentence of imprisonment for a term not exceeding two years, (2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the code be charged at the same trial :
Provided that such other offence is, under any other law for the time being in force, triable in a summary way:
Provided further that in the case of any conviction for such other offence in such trial, it shall not be lawful for the Special Court to pass a sentence of imprisonment for a term exceeding the term provided for conviction in a summary trial under such other law.
(3) A Special Court may, with a view to obtaining the evidence of any person suspected to have been directly or indirectly concerned in, or privy to, an offence under this Act, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof and any pardon so tendered shall, for the purposes of Section 308 of the Code be deemed to have been tendered under Section 307 thereof.
(4) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code and the High Court may exercise such powers including the power under Clause (b) of Sub-section (1) of that Section as if the reference to "Magistrate" in that section included also a reference to a "Special Court " constituted under Section 12A."
Thus, the perusal of this Section would go to show that if the Special Judge thinks at any stage of the trial that the punishment that might be necessary to meet the ends of justice in a particular case is required to be more than 2 years then he has to follow the regular procedure and once he follows the regular procedure i.e. the procedure prescribed for a trial other than a summary trial, the trial will have to be held as per the procedure prescribed for the warrant cases. When this is the basic idea underlying Section 12A and Section 12AA, then the offence punishable under Section 3 read with Section 7 of the Act does not cease to be a warrant case, merely because for the purpose of speedy disposal of the cases, Sub-section (f) prescribes that the procedure to be followed for the trial of such cases should be normally the one prescribed by Sections 262 to 265 Cr.P.C.
11. Now let me examine Sections 262 to 265 of the Code. Section 262 reads :-
"(1) In trials under this Chapter, the procedure specified in this Code for the trial of summons case shall be followed except as hereinafter mentioned.
(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter."
Section 263 relates to the maintenance of records in the case of summary trials. Section 264 speaks of the judgments in cases tried summarily. Section 265 speaks about the language of the record and judgment. Therefore, Sections 262 to 265 of the Code only lay down the procedure which should be followed by the Court in a summary trial. Merely because a particular short-cut procedure is laid down by Sections 262 to 265 Cr.P.C. it does not mean that the nature of the offence changes, be it a summons case or a warrant case. As already stated above, the procedure prescribed for the trial of the cases has got nothing to do with the nature of the case, whether summons or warrant case. Section 262 requires that the procedure specified in the Code for the trial of summons-case should be followed. It does not take away the character of the offence, which might be a warrant case. A large number of warrant cases can be tried summarily even under the Code. Therefore, what Section 262 of the Code prescribes is the procedure to be adopted in the trial and it does not make any reference to the nature of the offence.
12. A similiar question arose in SATHYA N. DEV v. STATE, 1987(2) CRIMES 129. The offence involved in that case also was one punishable under Section 7 of the Act. The question as to whether the benefit of Section 167(5) could or could not be extended to the accused, was also raised there. Manoranjan Mullick, J observed in para 6 as:
"I have carefully considered the submissions made by Learned Advocate appearing for the petitioner. 1 am of the view that Sub-section (5) of Section 167 of the Code is attracted when the case is triable under the summons procedure under the Code of Criminal Procedure. The offence under Section 7(1)(a)(ii) of the E.C. Act merits maximum penalty of 7 years and that offence is not triable as a summons case under the Code of Criminal Procedure. The Essential Commodities Act under Section 12A, stood at the material time enacted that the Magistrate holding the trial of offence under Section 7 of the Essential Commodities Act was to conduct the trial under summary procedure. There is no doubt that the Magistrate holding the summary trial has to adopt the procedure of summons case. But only because the trial of the offence under Section 7(1)(a)(ii) of the Essential Commodities Act has to be held under summary procedure it cannot be a trial of summons case. Such an offence is not triable as a summons case under the Code of Criminal Procedure. If under a Special statute special provision is made by which a warrant triable case is ordered to be tried as a summary trial as provided in Section 260 of the Code of Criminal Procedure, then only because such trial is to be under summons procedure such offence cannot be treated as one triable as a summons case. Only because of the Special provisions made in the Essential Commodities Act, the Magistrate has to adopt the summary procedure."
What all Section 12AA (f) lays down is that all offences under the Act shall be tried in a summary way and the provisions of Sections 262 to 265 (both inclusive) shall apply to such trial. The said Section does not tend to change the nature of the offence. The Counsel appearing for the accused drew my attention to Clause (c) of Section 12AA of the Act which reads, 'the Special Court may, subject to the provisions of Clause (d) of this sub-section, exercise, in relation to the person forwarded to it under Clause (b), the same power which the Magistrate having jurisdiction to try a case may exercise under Section 167 of the code in relation to an accused person in such case who has been forwarded to him under that Section and contended that the Magistrate can stop further proceedings under Section 167(5) of the Code. But, this submission ignores the fact that the Special Judge can exercise that power only if the case is triable as a summons case, if it is not triable as a summons case, then he cannot exercise the powers under Section 167(5) at all. Therefore, Section 167(5) would not come to the aid of the accused in these cases, 'incidentally, I may also state here, for the benefit of the Magistrates and Special Judges, that whenever the prosecution opposes the application for bail, the Special Judge will have to be satisfied as to whether there appear to be reasonable or bonafide grounds to believe that the offence had been committed. The Special Judge should not mechanically release the accused on bail in such cases. If the request for bail is opposed by the State, it is incumbent upon the Special Judge or Magistrate to consider whether there are reasonable or bonafide grounds to believe that the offence was committed by the accused.
13. Section 12AC of the Act reads :
"Save as otherwise provided in this Act, the provisions of the Code (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor."
Therefore Section 12AC makes the provisions of the Code applicable to the trial of offences created by the Act and the various Orders and Rules passed thereunder However, merely because the provisions of the Code are made applicable to the cases under the Act, it does not mean that the Sessions Judge would have unbridled powers to stop further proceedings as laid down by Section 167(5) irrespective of the fact whether the offence is a summons case or a warrant case. As already stated above. Section 167(5) of the Code is limited only to a summons case.
14. Another important factor to be noted is that Section 173 of the Code which deals with the report of Police Officer on completion of the investigation, lays down as:
"(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2)(i) As soon as it is completed the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government....."
The words used in Section 173(2) of the Code are, "as soon as it is completed." Therefore, unless the investigation is completed and unless the investigation has reached the stage of finality and unless nothing more is required to be done by way of investigation, then only the 1.0. is required to submit the report in the form prescribed. There-fore the placing of the final report by the police i.e. the charge-sheet would come into play only after the investigation is over. The placing of the charge-sheet is only a formal act required to be done by the police officer after completing the investigation into the offence. Thus, placing of the charge-sheet, looking to the wordings used in Section 173 of the Code, is not a part of the investigation contemplated by Chapter XII of the Code. The provisions contained in Sections 154 to 172 of the Code lay-down the procedure as to how the investigation should be completed. Section 173 comes into picture only after the investigation is completed. Section 164(1) of the Code would also throw some light on the question. It reads :
"Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial."
Therefore, it cannot be said that what is contained in Chapter XII is the be all and the end all of the entire investigation. The loose ends of the provisions relating to the investigation of offences are contained in some other Chapters like Chapter XXII. Sri Nayak very fairly brought to my notice Section 173(8) Cr.P.C. which reads :
"Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of Sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-section (2)."
Thus, Section 173(8) of the Code even enables the police to carry on the investigation even after the submission of the final report contemplated by Section 173(2) and it would stilt be a part of the case. I find that Section 173(8) if read with Section 167(5) of the Code makes the provision contained in Section 167(5) of the Code highly redundant and opposed to the principle laid down in Section 173(8) of the Code. It is for the authorities concerned to see that such inconsistencies are remedied as early as possible. Section 173 does not exclude a summons case. If it is so, there appears to be some contradiction in Sections 173 and 167(5). I trust this incongruity will be remedied as early as possible.
15. My learned colleague Desai.J has laid down in greater clarity in D. KUMAR v. STATE OF KARNATAKA, 1985(2) Crl. LJ 1347 as :
"The bar under Section 167(5) is for the investigation and not for the Court taking cognizance of the case. Therefore, at best, it can be said that the filing of the charge-sheet by the I.0 beyond the period of six months from the date of arrest of the accused was illegal and the evidence collected by the I.O after the period of six months has to be excluded from consideration. But it is well settled that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating cognizance or trial."
Even assuming that any investigation done beyond the period of six months is illegal, it does not take away the power of the Court to take cognizance of the offence and to proceed with the trial.
16. Learned Author B.B. Mitra in his book on Code of Criminal Procedure, Sixteenth Edition, at page 887 has observed as :
"However, according to the Madras High Court once cognizance is taken mere antecedent illegality in investigation on which final report has been submitted will not vitiate the trial if no prejudice is caused to the accused thereby."
Similar is the view taken by the Bombay High Court in JAGANNATHAN v. STATE, 1983 Crl. L.J. 1748 and STATE OF MAHARASHTRA v. P.C. TATYAJI, 1986 Crl. LJ. 332
17. A similiar question arose in BHASKARAN NAIR v. STATE OF KERALA & OTHERS, 1987 Crl. LJ. 170. Therein also the effect of not placing the charge-sheet within six months from the date of arrest was considered. The Division Bench of the Kerala High Court has laid down in paras 9, 10 & 12 as:
"Section 167(5) has not fixed any time limit beyond which investigation cannot continue. The main purpose of the provision is to avoid the serious abuse of an arrested person being kept in custody indefinitely while the investigation goes on le surely."
It has been further laid down as:
"Investigation conducted after six months without an order from the Magistrate, at any rate, will not vitiate that part of the investigation, in the absence of prejudice or miscarriage of justice being shown."
It has been further laid down at para 17 as:
"Where investigation was complete within six months from the date of surrender of accused but charge sheet was filed thereafter the cognizance taken by the Magistrate on the basis of the charge sheet is not illegal in the absence of prejudice to the accused."
It has been clearly laid down in Sathya N. Dev v. State, 1987(2) CRIMES 129 that the investigation concluded and charge-sheet submitted beyond six months from the date of arrest without getting extension of time from the Magistrate does not vitiate the trial or the Court taking cognizance of the offence. The principle laid down in Sathya N. Dev's case, 1987(2) CRIMES 129 is based on the view that the offences made out under Sections 3 and 7 are not summons cases but they are all warrant cases as defined by Section 2(x) of the Code.
18. Learned Government Advocate Kuranga referred me to ISHWARAPPA MAGUNDAPPA ARIBENCHI v. STATE, . What has been laid down in the said case is that the Code of Criminal Procedure is made applicable to cases tried by the Special Judge and that the provisions of Section 167 had not been excluded. In the said Ishwarappa's case, , the effect of a case being a summons case or warrant case and the effect of Section 12A, 12AA, and 12AA(f) of the Act have not been considered at all. The principle laid down by D. Kumar v. State of Karnataka, 1985(2) Crl. LJ 1347 (ii) Satya N. Dev v. State, 1987(2) CRIMES 129 (iii) Bhaskaran Nair v. State of Kerala, 1987 Crl. LJ. 170 (iv) Jagannathan v. State, 1983 Crl. L.J. 1748 (v) State of Maharashtra v. P.C. Tatyaji, 1986 Crl. LJ. 332 does not appear to have been brought to the notice of the Court that decided the said Ishwarappa's case, . Therefore, the decision in the said Ishwarappa's case, must be limited only to the peculiar facts available in the said case.
19. As already stated above, the provisions of the Code are applicable to the trial of the cases covered by the Act also. Section 468(2) Cr.P.C. prescribes different periods of limitation in cases punishable with imprisonment not exceeding three years. It does not lay down any period of limitation for the offences punishable with imprisonment exceeding three years. In all the offences punishable under Sections 3 and 7 of the Act, the imprisonment may extend to 7 years. Therefore, the period of limitation laid down by Section 468 will not be applicable to offences where imprisonment prescribed exceeds 3 years. Therefore the limitation laid down by Section 468 of the Code would not be applicable to the cases governed by Sections 3 and 7. If the view taken by the Sessions Judge that if the charge-sheet is not placed within six months from the date of arrest the accused has to be discharged, has to be accepted, then Section 468 of the Code would be rendered nugatory. When the law itself does not make Section 468 of the code applicable to offences punishable with more than 3 years imprisonment, applying Section 468(2)(c) to the present cases would be illegal.
20. The Sections have to be read together to bring about a harmonious result. Therefore, the trial Court ought to have considered the effect of Section 468 and Section 167(5) of the Code and ought to have held that in view of Section 468 the prescription of six months laid down by Section 167(5) of the Code would not be applicable to the cases on hand.
21. As already stated above, if the Special Judge thinks that a particular act committed by the accused requires the imposition of imprisonment of more than 3 years, he can stop the summary procedure followed by him and he can resort to a regular procedure. This is an indication to show that Section 12AA makes Sections 262 to 265 Cr.P.C. applicable only for the purpose of quicker disposal. Hence, it could go to show that the offences falling under Sections 3 and 7 of the Act would not be summons cases within the meaning of Section 167(5) Cr.P.C.
22. Another argument that needs to be considered is the one advanced with reference to Section 258 of the Code. It reads:
"In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class, or with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of the discharge."
Section 258 only goes to show that the question of discharge would come into play only after the submission of the final report. The question of discharge before the submission of the final report would not arise at all. Therefore, the expression 'discharge' used by the Special Judge in the said cases except in Cr.P.214/85 is opposed to the very basic concept of the Code. Learned Counsel Shri Gunaki very fairly brought to my notice Section 167(6) of the Code which reads :
"Where any order stopping further investigation into an offence has been made under Sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under Sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify."
In view of the fact that an order passed under Section 167(5) of the Code can be set a side by the Sessions Judge, it would rather be unreasonable and improper to hold that the Special Judge who is a Sessions Judge under the Act can exercise the power under Section 167(5) of the Code.
23. The question of limitation as in the cases under Economic Offences Act also does not arise in these cases because the imprisonment prescribed under the Act is 7 years. Therefore, the Legislature in its wisdom has not brought the offences under the Act within the purview of the Economic Offences Act.
24. Therefore under these circumstances, the orders passed by the Special Judge, Gulbarga in Crl. Revision Petition Nos.623 to 632 are set aside and the revisions are allowed and the cases are remanded to the Special Judge Gulbarga with a direction to proceed with them in accordance with law.
25. So far as Crl. Petition 214/85 is concerned, the Special Judge, Belgaum, has rightly come to the conclusion that Section 167(5) of the Code would not be applicable. He has rightly rejected the application of the accused filed under Section 167(5). Therefore, Criminal - Petition 214/85 is dismissed. However, learned Counsel Sri Desai, appearing for the petitioner in Cr.P.214/85 submitted that he had filed a Writ Petition No. 16914/85 challenging the validity of the Karnataka Cattle Fodder (Regulation of Export) Order 1981 and that it is pending. As it is pending, the Special Judge concerned should await the result of the decision in the said Writ Petition. The Sessions Judge should make a reference to the Registry of this Court once in two months in order to find out as to whether the said Writ Petition is pending or disposed.