Calcutta High Court
Phalguni Datta vs State Of West Bengal on 11 July, 1990
Equivalent citations: 1991CRILJ565
ORDER Sunil Kumar Guin, J.
1. This revision is directed against the order passed by the learned Judge Special Court, Midnapore (E.C. Act), hereinafter referred to as the Judge, Special Court, on 24-7-87 in D.E.B.G.R. Case No. 8 of 1984 whereby he rejected the petitioner's prayer for quashing the proceeding.
2. On 16-3-84 at about 10.25 hrs. one M.M. Chakraborty, Inspector, D.E.B., Midnapore being accompanied by other police officers and witnesses inspected the business place and godown of Gangadhar Dutta and anothers situated at Ghatal, Alamganj when Gangadhar Dutta was not present at the shop, but his son-cum-partner, Phalguni Dutta, the present petitioner was conducting the business. On demand he produced the licence for pulses and edible oil etc. in the name of Gangadhar Dutta and others having endorsed godown at holding No. 31, Ward No. 4 under Ghatal Municipality. The present petitioner also produced the stock books, cash memo books, stock cum rate board etc. of the said shop but there was no licence for sugar and the godown was also unauthorised one without having any licence. The petitioner was arrested on the same day i.e. on 16-3-84 and on a written complaint lodged by the said M. M. Chakraborty, Ghatal P.S. case No. 6 dated 16-3-84 was started under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) for violation of para 12(a) of the West Bengal Pulses, Edible Oil Seeds and Edible Oils (Dealers Licensing) Order 1978 and para 3(2) of the West Bengal Declaration of Stock and Prices of Essential Commodities Order, 1977 and para 3(a) of the West Bengal Sugar Dealers Licensing Order, 1980 read with para 2 (c) of the said Order. Though the accused Phalguni Dutta i.e. the present petitioner was arrested in connection with the aforesaid case on 16-3-84 but the charge-sheet in the case was submitted on 30-9-86 i.e. long after expiry of 6 months from the date of his arrest. The learned Judge, Special Court appears to have taken cognizance of the offence on 13-3-87 on the basis of the said police report i.e. charge-sheet submitted in the case. The present petitioner filed a petition before the learned Judge, Special Court for quashing the proceeding on the ground that the case being triable under summons procedure as provided under Section 12AA (1)(f) of the Act, 1955 read with Section 262 of the Code of Criminal Procedure (hereinafter referred to as the Code), the investigation that was carried on after expiry of 6 months from the date of arrest of the accused Phalguni Dutta was without jurisdiction and that cognizance taken on police report based on such investigation was illegal and without jurisdiction. The learned Judge, Special Court relying upon the decision in the case of Lakshmi Kanta Dey v. State of West Bengal, reported in 1986 Calcutta Criminal Law Reporter 158, has held that the provisions of Section 167(5) of the Code do not apply to the cases which are initiated for an offence punishable under Section 7(1)(a)(ii) of the Act. In this view of the matter, the learned Judge, Special Court, by his order dated 24-7-87 rejected the petition filed by the accused petitioner.
3. Being aggrieved by such order of rejection, the present petitioner has preferred the instant revision challenging the legality and propriety of the said order. Mr. Guha, learned Advocate for the petitioner referring to the provisions of Section 12AA(1)(f) of the Act and laying stress upon the words "case triable by a Magistrate as a summons-case," as appearing in Sub-section (5) of Section 167 of the Code has argued that though a case relating to an offence punishable under Section 7(1)(a)(ii) of the Act is a warrant case still in view of the provisions of Section 12AA (1)(f) of the Act, such case pending before the learned Judge, Special Court has turned to be a case triable by him as a summons-case within the meaning of said sub-section of Section 167 of the Code and that as such the learned Judge, Special Court is also competent to make an order under the said sub-section in a case under Section 7(1)(a)(ii) of the Act pending before him awaiting completion of investigation. He has further argued that this aspect of the case was not considered by Shamsuddin Ahmed, J. while arriving at his decision in the case Lakshmi Kanta Dey v. State of West Bengal, 1987 Cri LJ 104 (supra), and in support of his argument he has relied upon the decision of the Division Bench of the Andhra Pradesh High Court in the case reported in 1986 Cri LJ 1456. In this connection he has also referred to a decision of the Supreme Court reported in 1979 Cri LJ 1052 : AIR 1979 SC 1369.
4. Mr. Sengupta, learned Advocate appearing for the State has on the other hand argued that provisions of Sub-section (5) of Section 167 of the Code do not apply to a case punishable under Section 7(1)(a)(ii) of the Act, which is a warrant case, that Shamsuddin Ahmed, J. has rightly decided in the case of Lakshmi Kanta Dey v. State of West Bengal, 1987 Cri LJ 104, that the provisions of Sub-section (5) of Section 167 of the Code do not apply to the cases which are initiated for an offence punishable under Section 7(1)(a)(ii) of the Act. He has also argued that it has not been decided by the Division Bench of the Andhra Pradesh High Court that the provision of Sub-section (5) of Section 167 of the Code is also applicable to the case punishable under Section 7(1)(a)(ii) of the Act and that the decision of the Supreme Court as referred to by Mr. Guha is of no help inasmuch as it does not deal with any case punishable under the Essential Commodities Act.
5. The short question that arises for decision in this revision is whether or not the provisions of Sub-section (5) of Section 167 of the Code are applicable to the case punishable under Section 7(1)(a)(ii) of the Act. Undoubtedly, the case relating to an offence punishable under Section 7(1)(a)(ii) of the Act is a warrant case within the meaning of Section 2(x) of the Code inasmuch as the said offence is punishable with an imprisonment for a term which may extend to seven years. It is not disputed before me that the learned Judge, Special Court is competent to pass an order under Sub-section (5) of Section 167 of the Code in a case relating to offence punishable under Section 7(1)(a)(ii) of the Act. According to Mr. Sengupta, learned Advocate appearing for the State the learned Judge, Special Court is not competent to make any such order in a case relating to offences punishable under Section 7(1)(a)(ii) of the said Act, whereas according to Mr. Guha, learned Advocate for the petitioner the learned Judge, Special Court is also competent to make such an order. Mr. Guha in developing his argument has laid stress upon the words "case triable by a Magistrate as a summons-case" as appearing in Sub-section (5) of Section 167 of the Code and referred to the provisions of Section 12AA(1)(f) of the Act. It would be convenient if the provisions of Sub-section (5) of Section 167 of the Code and Section 12AA(1)(f) of the Act are reproduced here.
"167(5). If in any case triable by a Magistrate as summons case, the investigation is not concluded within a period of 6 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 special reasons and in the interest of justice the continuation of the investigation beyond the period of 6 months is necessary.
Section 12AA(1)(f) of the Essential Commodities Act, 1955 runs as follows :
"Notwithstanding anything contained in the Code all offences under this Act shall be tried in a summary way and the provisions 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".
6. Section 12AA(1)(f) makes it abundantly clear that all offences under the Act whether punishable under Section 7(1)(a)(i) or under Section 7(1)(a)(ii), shall be tried in a summary way and that in such summary trial provisions of Sections 262 to 265 of the Code shall apply. Section 262 of the Code enjoins that in such summary trial the procedure specified in the Code for trial or summons case shall be followed except as mentioned therein. Thus it is further clear that though the case relating to an offence punishable under Section 7(1)(a)(ii) of the Act is a warrant case but the learned Judge, Special Court has got no alternative but to try it in summary way and to follow the provisions of Section 262 of the Code in such trial. Section 262 provides that even in the trial of warrant case in a summary way the procedure prescribed for the trial of the summons case shall have to be followed. So the combined effect of Section 12AA(1)(f) of the Act and the Section 262 of the Code is that though the case relating to an offence punishable under Section 7(1)(a)(ii) of the Act is a warrant case but when it is being tried before the learned Judge, Special Court in a summary way it turns to be a case triable by him as a summons case within the meaning of Sub-section (5) of Section 167 of the Code. As the case relating to an offence under Section of the Act triable by the learned Judge, Special Court in a summary way becomes a case triable by him as a summons case within the meaning of Sub-section (5) of Section 167 of the Code, the learned Judge, Special Court would have jurisdiction to exercise powers under the said sub-section and would be competent to make an order stopping further investigation. This aspect of the case, as has been pointed out by Mr. Guha, learned Advocate for the petitioner, does not appear to have been taken into consideration in arriving at the decision in the case of Lakshmi Kanta Dey v. State of West Bengal also reported in 1987 Cri LJ 104 : 1986(11) CHN 267. So having regard to the aforesaid combined effect of Section 12AA (1)(f) of the Act and Section 262 of the Code I am of the opinion that in a case relating to offence under Section 7(1)(a)(ii) of the Act triable in a summary way, the learned Judge, Special Court is also competent to make an order as contemplated in Sub-section (5) of Section 167 of the Code.
7. This question also came up for consideration before the Division Bench of the Andhra Pradesh High Court in the case reported in 1986 Cri LJ 1456. The learned single Judge of the said Court referred to the Division Bench the following questions for decision :--
1) Whether a Special Court, constituted under Section 12A of the Essential Commodities Act, as amended in the year 1981, is empowered to exercise powers under Section 167 of the Code of Criminal Procedure in relation to the person forwarded to it under Clause (b) of Section 12AA of the Act ? In other words, what is the effect of Clause (c) read with Clause (f) of Section 12AA of the Act ?
2) Whether a Special Court can take cognizance of a case instituted before it where investigation into the said case is not completed within six months from the date of arrest of the accused involved in the case and charge-sheet is filed beyond 6 months from the date of arrest of the accused ?
8. Mr. Sengupta learned Advocate for the State has argued that the question whether the provisions of Sub-section (5) of Section 167 of the Code are applicable to a case punishable under Section 7(1)(a)(ii) of the Act was not raised before the said Division Bench for decision and that such question was not also decided by it. But on perusal of the judgment it appears that the submission of Mr. Sengupta is not correct. In this connection paragraph 3 of the judgment may be referred to. It runs as follows :
"Section 7 of the Act provides the various penalties that may be imposed for offence under the Act. Sub-section (1)(a)(i) of Section 7 provides for imprisonment up to one year and also fine; while Sub-section (1)(a)(ii) and Sub-section (2) and (2-A) provide for a sentence of a minimum term of imprisonment of 3 months but the imprisonment may extend up to 7 years and also fine. The applicability of the procedure including the provisions of Section 167(5) of the code to cases involving offences under Section 7(1)(a)(ii) etc. where punishment may extend to a sentence of over 2 years i.e. warrant case-according to Section 2(x) of the Code is controversy."
9. Thus it is very much clear that the question whether the learned Judge, Special Court is competent to pass any order under Sub-section 5 of Section 167 of the Code in the cases involving the offences under Section 7(1)(a)(ii) of the Act was also under consideration of the Division Bench in that reported case. The Division Bench gave its answer as follows :
1) A Special Court constituted under Section 12-A of the Essential Commodities Act (as amended in 1981) is empowered to exercise powers under Section 167(5) of the Criminal Procedure Code in relation to the person forwarded to it under Clause (b) under Clause (b) of Sub-section (1) of Section 12AA of the Act as contemplated by Clause (c) of that sub-section. Clause (f) makes it obligatory for the Special Court to try cases summarily and hence by virtue of Section 262 of the Code of Criminal Procedure, the procedure for summons cases will apply for the trial of the offences under the Act by it.
2) The Special Court can take cognizance of a police report under Section 173(2) of the Code based on the investigation done within the period permitted by Section 167(5) of the Code even if the report is made beyond 6 months. However, in view of Section 167(5) of the Code the Court shall give a direction to stop further investigation after the expiry of 6 months of the arrest of the accused, unless the period for investigation is extended by it, as contemplated by that sub-section.
10. Thus from the questions as raised before the Division Bench and from the answer given by the said Division Bench to those questions it is very much clear that the said Division Bench held that the learned Judge, Special Court is competent to exercise powers under Sub-section (5) of Section 167 of the Code also in a case relating to offence punishable under Section 7(1)(a)(ii) of the Act. With due respect I am inclined to follow and rely upon the decision as given by the Division Bench of the Andhra Pradesh High Court.
11. Mr. Guha has also referred to decision of the Supreme Court reported in the case of Hussainara Khatoon v. Home Secretary, State of Bihar reported in AIR 1979 SC 1369 : 1979 Cri LJ 1052. This decision is not actually on the point under consideration in the instant case. While dealing with the provision of Sub-section (5) of Section 167 of the Code, the Supreme Court has emphasised that if in any case triable by a Magistrate as a summons case the investigation is not concluded within a period of 6 months from the date on which the accused was arrested the Magistrate must make an order stopping further investigation into the offence, unless the officer making the investigation satisfies the Magistrate for Special reasons and in the interest of justice, the continuation of the investigation beyond the period of 6 months is necessary. It was emphasised therein that the provision of said Sub-section (5) of Section 167 of the Code should be strictly complied with.
12. Thus having regard to the aforesaid combined effect of Section 12AA(1)(f) of the Act and Section 262 of the Code and also relying upon the decision of the Division Bench of the Andhra Pradesh High Court reported in 1986 Cri LJ 1456. I answer this question as raised in this revision in the affirmative and hold that the learned Judge, Special Court is also competent to pass orders under Sub-section (5) of Section 167 of the Code in the case under Section 7(1)(a)(ii) of the Act which is triable by him in a summary way. He has committed an error in not exercising his powers under Sub-section (5) of Section 167 of the Code of Criminal Procedure and in the facts and circumstances of the case he was not at all justified in rejecting the petition of the accused-petitioner. Undisputedly, the accused-petitioner, Phalguni Datta was arrested on 16-3-84 and the charge sheet was submitted by the police officer on 30-9-86 i.e. after lapse of about 2 1/2 years from the date of his arrest. There is nothing to indicate that the investigation in the instant case was completed within a period of 6 months from the date of his arrest. Nor is there anything to show that the Investigating Officer made any prayer before the learned Judge, Special Court for permission to continue the investigation beyond the period of 6 months. In these circumstances the learned Judge, Special Court should have passed the order stopping further investigation as contemplated in Sub-section (5) of Section 167 and should have discharged the accused from the case. The impugned order, therefore, must be set aside and the proceeding so far as it relates to the petitioner-accused Phalguni Dutta must be quashed.
13. Revision is allowed. The order complained of is set aside. The proceeding being D.E.B. G.R. Case No. 8 of 1984 pending before the learned Judge, Special Court, Midnapore so far as it relates to accused-petitioner Phalguni Dutta is quashed and the accused-petitioner is discharged from the case.
14. Let a copy of this order be sent to the Court concerned as expeditiously as possible.