Jharkhand High Court
Dinesh Rai vs State Of Jharkhand on 30 March, 2007
Equivalent citations: 2007(2)BLJR1352, [2007(2)JCR295(JHR)]
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
Page 1353
1. Petitioner has prayed for quashing of the entire criminal proceedings pending against him in Excise Case No. 65 of 2005 including the order dated 14.11.2006 passed by the learned Chief Judicial Magistrate, Ranchi whereby the learned court below has taken cognizance against the petitioner for the offence under Section 47(A) of the Excise Act. The basic ground on which the instant application has been filed, is that the impugned order of cognizance is against the provision of Section 96 of the (Bihar) Excise Act, 1915, since the prosecution report has been filed beyond the period of six months from the date of the alleged offence.
2. Facts of the case briefly stated is that in the night of 30.6.2005 a raid was conducted at the house of the petitioner by the officials of the Excise Department and in course of search, certain quantities of packets of illicit liquor were found and the same were seized. The petitioner had allegedly managed to escape from the back door of his house. The prosecution report in respect of the aforesaid offence, though dated 5.12.2005, was placed before the learned Chief Judicial Magistrate on 14.11.2006 and on the same day, the leaned court below proceeded to take cognizance of the offence under Section 47(A) of the Excise Act against the petitioner, issuing summons against him and directing him to face trial.
3. Learned Counsel for the petitioner, while referring to the prosecution's report (annexure-2) and also to the seizure list (annexure-1), submits that as per admitted case of the prosecution, the date of the alleged offence is 30.6.2005, however the prosecution report was submitted before the learned court below on 14.11.2006 after lapse of more than one and half years and yet, the learned court below has proceeded to take cognizance ignoring the fact that Section 96 of the (Bihar) Excise Act, 1915 imposes a strict embargo upon taking cognizance on the basis of a belated prosecution report submitted beyond the period of six months. Learned Counsel refers in this context to the judgment of the Division Bench of the Patna High Court in the case of R.P. Sharma and Ors. v. State of Bihar and Anr. reported in 1999 (1) East Cr. C 140 (Pat).
4. Learned Counsel appearing for the State concedes that the prosecution report was submitted much beyond the period of six months from the date of offence, but argues that Section 96 of the Act does not prohibit taking of cognizance beyond the period of six months and, therefore, even if the prosecution report was filed beyond the period of six months from the date of offence, the order of cognizance cannot be challenged on the ground that the order was not passed Within the period of six months from the date of offence.
5. Section 96 of the (Bihar) Excise Act, 1915 refers to limitation for filing suits and prosecutions, which reads as follows:
96. Limitation of Suits and Prosecutions.- No Civil Court shall try any suit against the Government in respect of anything done, or alleged to have been done, in pursuance of this Act, and, except with the previous sanction of the State Government, no Magistrate shall take cognizance of any charge made against any Excise Officer against this Act or any other law relating to the excise-revenue or made against any other person under this Act, unless the suit or prosecution is instituted within six months after the date of the act complained of Page 1354
6. It is apparent from the above provision that the Magistrate is empowered to take cognizance with regard to offences punishable under Section 47 of the Act on the basis of the complaint or report of an Excise Officer empowered in this behalf by the State Government. However, as regards the institution of the prosecution, section provides that no Magistrate shall take cognizance of any charge made against any Excise Officer or any other person under this Act or any other law, unless the prosecution is instituted within six months after the date of the act complained of. Section 78(4) of the Bihar Excise Act, 1915 contains powers and duties of the Excise Officer investigating offences. Sub-section 4 of Section 78 of the Act reads as under:
Powers and duties of Excise Officer investigating offences.- (4) As soon as investigation by a Collector or by an Excise Officer empowered under Section 77, Sub-section (2), has been completed, if it appears that there is sufficient evidence to justify the forwarding of the accused to a Magistrate, the investigating officer, unless he proceeds under Sub-section (2) of this section or under Section 68 of this Act, shall submit a report which shall, for the purposes of Section 190 of the Code of Criminal Procedure, 1973 be deemed to be a police report to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offences on Police-reports.
It is manifest from the above that on receiving the report under Section 78(4) of the Act, the Magistrate is empowered to take cognizance with regard to the offence punishable under Sections 47, 49, 55 and 56 of the Act. With regard to initiation of the prosecution, it provides that no Magistrate shall take cognizance of any charge made against any Excise Officer or any other person under this Act or any other law unless prosecution is instituted within six months from the date of the act complained of.
7. As rightly pointed out by the learned Counsel for the State, Section 96 of the Act does not emphasis that cognizance of the offence is to be taken within six months of the act complained of. Nevertheless, it provides that the prosecution has to be instituted within the aforesaid period.
As has been explained by the Division Bench in the case of R.P. Sharma (Supra), the word 'prosecution' means criminal proceedings in general as it includes institution, continuance and culmination of proceedings in final judgment. In Section 96 of the Act, the word 'prosecution' is followed by the word 'instituted' and as such, this word has been used in the context of institution of the criminal prosecution and the word 'institute' means laying of information or complaint before the court. In other words, the word 'institute' means commencement of the judicial proceeding.
8. Section 96 of the Bihar Excise Act, specifically provides for institution of prosecution within a particular period for the purposes of taking cognizance of the offences. It certainly does not support the view that unless cognizance is taken within six months from the date of the act complained of, prosecution is barred by limitation. Requirement of the said section is that the prosecution is to be instituted, meaning thereby, that the report or the complaint is to be filed in terms of Section 78(4) of the Act within six months of the act complained of. Cognizance of the offence may be taken even beyond the period of six months.
9. In the present case, admittedly the date of the act complained of is 30.6.2005, whereas prosecution report was filed in the court of Chief Judicial Magistrate Page 1355 on 14.11.2006, indicating thereby that the prosecution report was filed beyond the period of six months and as such, cognizance taken on the basis of such a report being a breach of provision of Section 96 of the Act, is vitiated in law.
10. In the result, this application is allowed and the entire criminal proceeding pending against the petitioner vide Excise Case No. 65 of 2005 pending in the court of Chief judicial Magistrate, Ranchi is hereby quashed.