Patna High Court - Orders
Chotelal Singh vs The State Of Bihar Through Director ... on 27 June, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.887 of 2013
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BABLU @ RAJESH KUMAR, S/O TULSILAL, RESIDENT OF B/14,
MOHALLA VIJAY NAGAR, SCH NO. 78, P.S. VIJAY NAGAR,
DISTRICT INDORE (M.P.).
.... .... PETITIONER/S
VERSUS
1. THE STATE OF BIHAR.
2. THE SUPERINTENDENT OF POLICE, PATNA.
3. THE OFFICER-IN-CHARGE OF RAJENDRA NAGAR POLICE
STATION, PATNA.
4. THE OFFICER-IN-CHARGE, PATNA JUNCTION RAIL POLICE
STATION, PATNA.
5. THE DRUG CONTROLLER, BIHAR, PATNA.
6. THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, PATNA.
7. THE DRUG INSPECTOR, URBAN AREA (WHOLESALE), PATNA.
.... .... RESPONDENT/S
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with
Criminal Writ Jurisdiction Case No.899 of 2013
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CHOTELAL SINGH SON OF MASUDAN SINGH RESIDENT OF
VILLAGE - BALIA, P.S.- SHAHKUND, DISTRICT - BHAGALPUR
.... .... PETITIONER/S
VERSUS
1. THE STATE OF BIHAR THROUGH DIRECTOR GENERAL OF
POLICE, PATNA
2. DIRECTOR GENERAL OF POLICE, PATNA
3. DISTRICT MAGISTRATE, BHAGALPUR
4. THE CIVIL SURGEON - CUM -CHIEF MEDICAL OFFICER,
BHAGALPUR
5. SENIOR DEPUTY COLLECTOR, BHAGALPUR
6. THE S.H.O., SHAHKUND P.S., DISTRICT - BHAGALPUR
7. SRI AMOD KUMAR PRASAD, DRUG INSPECTOR, BHAGALPUR
2.
- 04, SADAR HOSPITAL, BHAGALPUR.
8. SUPERINTENDENT OF POLICE, LAW AND ORDER,
BHAGALPUR
.... .... RESPONDENT/S
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Appearance:
(In Cr. WJC No.887 of 2013)
For the Petitioner/s : Mr. Surendra Kishore Thakur, Adv.
For the Respondent/s : Mr. Vijay Kumar Verma, AC to G.A.-3.
(In Cr. WJC No.899 of 2013)
For the Petitioner/s : Mr. Amiya Kunal, Adv.
For the Respondent/s : Mr. Neeraj Raj, AC to SC-19.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
5. 27-06-20141. Because of the fact that common question is involved in both these two appeals on account thereof, after hearing both the petitions, order has been reserved and accordingly, are disposed of by the instant common order.
2. In Cr.W.J.C. No.887 of 2013 petitioner, Bablu @ Rajesh Kumar who stood as an accused in connection with Rajendra Nagar (Pat na Junction) G.R. P.S. Case No.98 of 2010 registered under Sections 467, 468 of the IPC and 27(d)(b)(ii), 28 of Drug Control Act, 2008 has asked for quashing of the same.
3. The facts of the case as is evident from written report submitted by Sweta Rani, D rug Inspector 3. is that as per direction of the Drug Controller she along with other officers of the Department conducted raid at Rajendra Nagar Terminal and found two tempo parked outside platform no.1. During search 53x50 bottle, 64x50 bottle of 100 ml Phensadry cough, linctus 100 ml, Batch No.PHB0037 date of manufacture Feb.2010, Exp. Date Jan, 2012 manufactured by Piramal Health Care Ltd. Bhatauli was found loaded. Drivers of both the tempos were present who did not disclose name of owner. No permit, chalan, cash memo was produced and on account thereof, were seized under Form No.16 and under Appendix No.17 the samples were prepared and sent to expert for examination. Cartoons of medicines contains Atul Agency, Chinch. Wead and on the basis thereof, the informant inferred that it has been transported illegally from Chinchwad. Drivers of both the tempo have disclosed that they were to carry the medicine to G.M. Road. Further she came to know the owner of the aforesaid consignment to be Sri Bablu, son of not known bearing mobile no.9301417242 and Sri Farej, son of not known, mobile no.9304898348.
4. In Cr.W.J.C. No.899 of 2013 Chote Lal Singh 4. happens to be the petitioner who has asked for quashing of Shahkund P.S. Case No. 175 of 2012 registered under Section 420 IPC, 18(c), 27(b)(ii) of the Drugs and Cosmetics Act.
5. The prosecution case as per wri tten report submitted by Amod Kumar Prasad, Drug Inspector, Bhagalpur, disclosing the fact that as per direction of District Magistrate, Bhagalpur he in presence of Magistrate deputed by the District Magistrate had conducted raid at the shop belonging to C hote Lal Singh (petitioner) running in the house of Musafir Das on rent without license. At the time of raid the shop was locked and as Chote Lal Singh failed to appear, after breaking the lock shop was searched and seizure list was prepared for the medicines which has been seized therefrom.
6. It has been submitted on behalf of petitioners of both the petition that registration of FIR under the Drugs and Cosmetics Act is impermissible because of the fact that low does not provided the same. It has further been submitted that in terms of Section 32 of the Drugs and Cosmetics Act complaint was to be filed that too at the instance of Drug Inspector because of the fact 5. that search and seizure in accordance with Section 22 of the Drugs and Cosmetics Act is to b e carried out by the Drug Inspector and as per Section 32 of the Drugs and Cosmetics Act, prosecution has to be launched at the instance of Drug Inspector as well as by the person aggrieved or by recognized association. Therefore, registration and investigation of the case by the police at the instance of Drug Inspector or anybody else is not at all permissible in the background of the fact that under Drugs and Cosmetics Act neither the investigation nor submission of police report in terms of Section 173 of the Cr.P.C. is recognizable.
7. It has further been submitted that on account of prohibition in sub-section 3 of Section 22 as well as Section 32 of the Drugs and Cosmetics Act, institution of police case is forbidden and on account thereof, the institution of the case followed with investigation as well as submission of police report became no -nest in the eye of law and being the position aforesaid, the court is precluded from taking cognizance on the basis of police report.
8. It has also been submitted that the aforesaid 6. matter have taken into consideration in the Hindustan Liver Ltd. Vs. State of Bihar & Ors. reported in 1997(1) BLJ 899. The propriety of aforesaid judgment has been considered under Cr. Misc. No.50246 of 2006 Om Prakash Singh Vs. State of Bihar (DB) wherein it has been observed that the finding recorded in the case of Hindustan Liver Ltd. Vs. State of Bihar & Ors. is correct. The matter has again subsequently been considered by the Division Bench in Cr.W.J.C. No.719 of 1998, Shankar Kumar Ghosh Vs. State of Bihar & Anr. with Cr. Misc. No.808 of 1998, Om Prakash Sah Vs. State of Bihar vide judgment dated 21.01.2011 the same view has been reiterated. Also referred order dated 01.10.2013 passed in Cr.W.J.C. No.472 of 2013, order dated 18.07.2013 passed in Cr.W.J.C. No.120 of 2010, order dated 12.04.2013 passed in Cr.W.J.C. No.110 of 2013, 2005(3) PLJR 662 on this score and submitted that now the law is settled with regard to non - permissibility of police case under Drugs and Cosmetic Act.
9. On the other hand, the learned AC to GA -3 controverted the submission raised on behalf of 7. petitioners and submitted that legal position has been twisted while pleading. It has further been submitted that in terms of Section 22(3) as well as Section 32 of the Drugs and Cosmetics Act the law did not prescribe institution of prosecution by way of complaint rather prosecution has to be launched by the Drug Inspector or person aggrieved or by the association. Therefore, only competency of aggrieved has been ide ntified and not the manner of launching of prosecution.
10. It has further been submitted that two kinds of prosecution is identifiable under law. The first one by way of approaching the police and the second one by filing complaint petition. In likewise m anner there happens to be two categories of offences. The cognizable and non-cognizable. Certain limitations have been prescribed under the Criminal Procedure Code with regard to filing of cases falling under category of the non-cognizable offence but so f ar cognizable office is concerned, no such embargo is found permissible and in likewise manner the mode of prosecution and to support the same the learned AC to GA -3 has placed reliance upon an order dated 05.11.2012 passed in Cr. Misc. 8. No.20018 of 2010.
11. It is needless to say that Drugs and Cosmetics Act happens to be the Special Act. Although it did not define the procedure independently, away from Criminal Procedure Code but to some extent it has engrafted its independent mode of application.
12. As per Section 4 of the Cr.P.C. whenever there happens to be application of Special Law the investigation inquiry or trial should be guided by the Special Law itself if it so prescribes. For better appreciation Section 4 is quoted below: -
4. Trial of offences under the Indian Penal Code and other laws (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
In other words, it is apparent from the reading of Section 4 that provisions of the Code would be applicable where an offence under the IPC or under any other law is being investigated, inquired into, tried or otherwise dealt with. These offences under any other 9. law could also be investigated, inquired into or tried with according to the provisions of the code except in case of an offence where the procedure prescribed thereunder is different than the procedure prescribed under the code.
13. Now, in the background of exception so enumerated under Section 4 of Code of Criminal Procedure, the relevant provision of Drugs and Cosmetics Act have to be seen in a way to search out whether specific provision has been prescribed thereunder which could exclude applicability of Criminal Procedure Code.
Sec. 36-A.- Certain offences to be tried summarily. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences except the offences triable by the Special Court under Section 36-AB or Court of Sessions under this Act, punishable with imprisonment for a term not exceeding three years, other than an offence under clause (b) of sub-section (1) of section 33-I, shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said 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 Magistrate to pass a sentence of imprisonment for a term not exceeding one year:
Provided further that when at the commencement of, or in the course of, a summary trial under this section it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case 10. summarily, the Magistrate shall, after hearing the parties, record an order to that effect and thereafter recall any witness who has been examined and proceed to hear or rehear the case in the manner provided by the said Code.
Thus, from perusal of Section 36'A' it is crystal clear that only those cases whereunder sentence is less than three years is to be tried summarily by a court of Magistrate otherwise, will go out of its ambit.
Furthermore, relevant provisions of Criminal Procedure Code have been made applicable during course of conduction of trial.
36-AB. Special Courts. -The Central Government, or the State Government, in consultation with the Chief Justice of the High Court, shall, for trial of offences relating to adulterated drugs or spurious drugs punishable under clause (a) and (b) of Section 13, sub- section (3) of Section 22, clause (a) and (c) of Section 27, Section 28, Section 28-A, Section 28-B and clause (b) of sub-section (1) of Section 30 and other offences relating to adulterated drugs or spurious drugs, by notification, designate one or more Courts of Sessions as a Special Court or Special Courts for such area or for such case or class or group of cases as may be specified in the notification.
Explanation.- In this sub-section, "High Court"means the High Court of the State in which a Court of Sessions designated as Special Court was functioning immediately before such designation.
(2) While trying an offence under this Act, a Special Court shall also try an offence, other than an 11. offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.
All other offences coming out having punishment more than three years and upward is to be prosecuted before the court of Sessions and during trial, the prosecution under different laws are also permissible by the concerned designated court. At the present juncture one should not lost sight of Section 2 which reads as follows:-
Section-2 Application of other laws not bar can the provisions of this Act shall be addition to, and not in derogation of, the Dangerous Drugs Act, 1930 or, and other law for the time being inforce. 36-AC. Offences to be cognizable and non- bailable in certain cases. - (1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) every offence, relating to adulterated or spurious drug and punishable under clause (a) and (c) of sub-section (1) Section 13, clause (a) of sub-section (2) of Section 13, subsection (3) of Section 22, clause (a) and (c) of Section 27, Section 28, Section 28-A, Section 28-B and sub-section (1) and (2) of Section 30 and other offences relating to adulterated drugs or spurious drugs, shall be cognizable.
(b) no person accused, of an offence punishable under clause (a) and (c) of sub-section (1) of Section 13, clause (a) of sub-section (2) of Section 13, sub-section (3) 12. of Section 22, clause (a) and (c) of Section 27, Section 28, Section 28-A, Section 28-B and subsection (1) and (2) of Section 30 and other offences relating to adulterated drugs or spurious drugs, shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:
Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs.
(2) The limitation on granting of bail specified in clause (b) of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting bail.
(3) 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 of Criminal Procedure, 1973 (2 of 1974) 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 includes also a reference to "Special Court" designated under Section 36-AB.
36-AD. Application Code of Criminal Procedure, 1973 to proceedings before Special
Courts. - (1) Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bails and bonds), 13. shall apply to the proceedings before a Special Courts and for the purpose of said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor:
Provided that the Central Government or the State Government may also appoint, for any case or cases or group of cases, a Special Public Prosecutor.
(2) A person shall not be qualified to be appointed as Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an advocate for not less than seven years, under the Union or a State, requiring special knowledge of law.
(3) Every person appointed as a Public Prosecutor or a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of Section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and the provisions of that Code shall have effect accordingly.
36-AE. Appeal and revision. - The High Court may exercise, so far as may be applicable, all the powers conferred by Chapter XXIX or Chapter XXX of the Code of Criminal Procedure, 1973 (2 of 1974), on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court.]
14. After going through Section 35AC, it is evident that certain class of offences falling under specific categories so prescribed thereunder has been identified as cognizable offence and in likewise manner 14. as per Section 36AD, there happens to be application of Criminal Procedure Code right from inception of the prosecution. Drugs and Cosmetics Act, as it stands is silent with regard to its own procedure rather in terms of Section 36AD, it is to be guided in terms of Criminal Procedure Code and on account the reof, second schedule of Criminal Procedure Code has also to be borne in mind, apart from having own classification of offences having punishment three years and upward to be cognizable offence, and on account thereof, police is competent to entertain FIR and to roll with investigation.
15. As such, from plain reading of aforesaid sections, it has become crystal clear that apart from offences so prescribed therein to be cognizable, right from inception of case, it has to sail as per procedure prescribed under Criminal Procedure Code. At this crucial stage Section 32 of the Drugs and Cosmetic Act has to be seen which deals with cognizance. For better appreciation, same is quoted below: -
32. Cognizance of offences. - (1) No prosecution under this Chapter shall be instituted except by-
(a) an Inspector, or 15.
(b) any Gazetted Officer of the Central Government or a State Government authorized in writing in this behalf by the Central Government or a State Government by a general or special order made in this behal by that Government; or
(c) the person aggrieved; or
(d) a recognized consumer association whether such person is a member of that association or not. (2) Save as otherwise provided in this Act, no court inferior to that of a Court of Sessions shall try an offence punishable under this Chapter. (3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission, which constitutes an offence against this Chapter.
16. After going through Section 32, it is evident that Drug Inspector, Gazetted Officer of the Central or State Government having so duly authorized, person aggrieved or a recognized consumer association has been identified at whose behest prosecution will lie. Furthermore, from reading of Section 32, it is evident that aforesaid persons have been identified competent only to launch prosecution. It is also evident that court of session has been picked up to be the competent court for the purpose of trial. However, it did not denotes the mode of prosecution. If sub-section 3 of Section 32 is 16. read together with Section 2 of the Act, it is evident that apart from being prosecuted under Drugs and Cosmetic Act, the delinquent can be prosecuted under any other law and Section 32 cannot be a rider for such prosecution. That means to say, where there happens to be application of different provisions of IPC along with relevant sections of Drugs and Cosmetic Act, by no stretch of imagination it can b e said that only on account of registration of case under Drugs and Cosmetic Act, the whole prosecution is bad.
17. The mode of prosecution has not been prescribed under the Drugs and Cosmetics Act whether it should be by way of police case or by a compla int case. Only the competent person has been identified to draw the prosecution. Section 32 attracts that "no prosecution under this chapter shall " lie needs to be explained whether it segregates the ident ity of police case as well as complaint case along with the fact that institution of police case is found completely eclipsed in the aforesaid background. Prosecution also has not been defined under the Drugs and Cosmetics Act and is to be seen as per dictionary meaning. As per Blacks, it 17. happens to be a criminal action, a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charge with crime. It denotes bot h the activity that means to say institution of the case before the police as well as filing of complaint. Furthermore, there happens to be no residue clause available under Section 32 or any of the Section of Drugs and Cosmetics Act that prosecution on t he basis of police case is found barred.
18. The concept that police case is not maintainable had sprouted in Hindustan Liver Ltd. Vs. State of Bihar & Ors. reported in 1997(1) BLJ 899. However, during course of consideration of aforesaid case, the earlier decided case Raghunath Bhagat & Anr. v. State of Bihar & Anr. reported in 1991 Cr.L.J. 2054 has not been taken into consideration wherein petitioners have had prayed for quashing of order of cognizance based upon police report submitted after concluding investigation on the basis of FIR and in para-8 thereof, it has been held:-
Para-8 - On careful consideration of submission of 18. learned counsel for the parties and on going through Section 32(1) of the Drugs and Cosmetic Act that no illegality has been committed by the court below in taking cognizance against the petitioners. No case of quashing is made out.
19. Hindustan Lever case (Supra) was considered in Om Prakash Agrawal Vs. S. Kullu, Addl. Dy. Commissioner, Singhbhum, Chaibasa & Ors. reported in (1998) 3 BLJR 2148 wherein entire criminal prosecution based upon police report was prayed for quashing, and differentiating the proposition laid down in Hindustan Lever case (Supra) prayer of petitioner was rejected.
20. This issue be seen through another ang le. As per second part of first schedule of Criminal Procedure Code, any offence prescribing punishment three years and upward happens to be cognizable offence apart from specifically laying down under Section 36AC. In Assistant Electric Engineer Vs. Satye ndra Rai & Anr. reported in 2012 (1) PLJR 476, whereunder same question involved regarding maintainability of police case under old Electricity Act, the Hon'ble Apex Court dealt with the question by explaining.
"11. There is one more reason why the High Court's order can be faulted. The High 19. Court's order can be faulted. The High Court has clearly ignored the First Schedule of the Cr.P.C. and more particularly the second part thereof, which is under the head "Classification of offences against other laws."
The second entry reads as follows:-
"If punishable with imprisonment for three years, and upwards but not more than seven years, then such offences are held to be cognizable, non-bailable and triable by the Court of Magistrate of the first class."
12. Therefore, the High Court ought to have considered this provision which makes the first information report acceptable by the police in the sense that the police could investigate into the matter and if found guilty could have also filed a report under Section 173 Cr.P.C. before the Court on which the Court could have taken the cognizance of the office.
13. Be that as it may, since the High Court has not considered both these provisions, we set aside the impugned order of the High Court holding that the first information report filed in the present case was liable to be investigated and a police report on that basis can be entertained by the criminal court by taking cognizance of the same."
21. Similar issue has again come up before the Hon'ble Apex Court in Vishal Agrawal & Anr. Vs. 20. Chhattisgarh State Electricity Board & Ors. reported in AIR 2014 SC 1539 wherein police case was registered under old Electricity Act which was questioned.
"20. Here, the provisions of Section 4 of the Code become relevant which provide a complete answer to the submission of the appellant. It reads:
"4. Trial of offence under the Indian Penal Code and other laws. -
(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigation, inquiring into, trying or otherwise dealing with such offences."
21. It is apparent from the reading of Section 4 that provisions of the Code would be applicable where an offence under the IPC or under any other law is being investigated, inquired into, tried or otherwise dealt with. These offences under any other law could also be investigated, inquired into or tried with according to the provisions of the Code except in case of an offence where the procedure prescribed there under is different than the procedure prescribed under the Code. It is so
21. specifically provided under Section 155 of the Electricity Act also. Thus, it is not a case where any special or different procedure is prescribed. Rather, the procedure contained the Code is made applicable for the offences to be tried underthe Electricity Act as well.
22. We would like to discuss here the judgment in the case of In M. Narayandas v. State of Karnataka and Ors.2004 CriLJ 822, which has direct bearing on the issue at hand. The question arose as to whether Section 195 and Section 340 of the Code. affect the power of police to investigate into a cognizable offence. Section 195 provides for prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. It also states that no Court shall take cognizance of the offences specified therein except on a complaint in writing of that Court or of some other Court to which that Court is subordinate. Section 340 of the Code prescribes the procedure as to how the complaint may be preferred under Section 195 of the Cr.P.C. Alleging that the accused had committed an offence under Section 195, the complainant had made a complaint to the police and police had initiated investigation thereon. The accused/respondent had contended that since the case was filed under Section 195 of the Code it was provisions of Chapter XVI of the Code which would apply and not Chapter XII thereof (relating to investigation by the police). This contention
22. was rejected in the following manner:
"8. We are unable to accept the submissions made on behalf of the respondent. Firstly, it is to be seen that the High Court does not quash the complaint on the ground that Section 195 applied and that the procedure under Chapter XXVI had not been followed.
Thus such a ground could not be used to sustain the impugned judgment. Even otherwise, there is no substance in the
submission. The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a cognizable offence has already been considered by this Court in the case of State of Punjab v. Raj Singh ; 1998 Cri LJ 1104 . In this case it has been held as follows:
We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondent alleging commission of offences under Sections 419, 420, 467 and 468 IPC by them in course of the proceeding of a civil suit, on the ground that Section 195(1)(b)(ii) CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 CrPC it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) CrPC; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to
23. have been committed in, or in relation to, any proceeding under the Code is not in any way controlled or circumscribed by Section 195 CrPC. It is of course true that upon the charge- sheet (challan), if any, filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) CrPC, but nothing therein deters the court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC. The judgment of this Court in Gopalakrishna Menon v. D. Raja Reddy; 1983 (3) SCR 836 on which the high Court relied, has no manner of application to the facts of the instant case for there cognizance was taken on a private complaint even thoughthe offence of forgery was committed in respect of a money receipt produced in the civil court and hence it was held that the court could not take cognizance on such a complaint in view of Section 195 CrPC.
Not only are we bound by this judgment but we are also in complete agreement with the same. Section 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into place and the court would not be competent to take
24. cognizance. However, that court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340 of the Criminal Procedure Code is followed. Thus no right of the respondent much less the right to file an appeal under Section 341, is affected."
23. Thus, the clear principle which emerges from the aforesaid discussion is that even when a Magistrate is to take cognizance when a complaint is filed before it, that would not mean that no other avenue is opened and the complaint/FIR cannot be lodged with the police. It is stated at the cost of repetition that the offences under the Electricity Act are also to be tried by applying the procedure contained in the Code. Thus, it cannot be said that a complete machinery is provided under the Electricity Act as to how such offences are to be dealt with. In view thereof, we are of the opinion that the respondent's Counsel is right in his submission that if the offence under the Code is cognizable, provisions of Chapter XII containing Section 154 Cr.P.C. and onward would become applicable and it would be the duty of the police to register the FIR and investigate into the same. Sections 135 and 138 only prescribe that certain acts relating to theft of electricity etc. would also be offences. It also enables certain persons/parties, as mentioned in Section 151, to become complainant in such cases and file complaint before a Court in writing. When such a 25. complaint is filed, the Court would be competent to take cognizance straightway. However, that would not mean that other avenues for investigation into the offence which are available would be excluded. It is more so when no such special procedure for trying the offences under the Electricity Act is formulated and the cases under this Act are also to be governed by the Code of Criminal Procedure."
22. It is evident that while deciding Hindust an Lever Ltd. (Supra) the earlier decision Raghunath Bhagat & Anr. Vs. State of Bihar reported in 1991 Cr.L.J. 2054 has not been considered. In likewise manner, while testing correctness of Hindustan Lever Ltd. (Supra) the D.B. under Cr. Misc. No.50246 of 2006, Om Prakash Singh Vs. The State of Bihar & Ors. had not considered the relevant provisions of law on this score and in likewise manner, another DB in Cr.W.J.C. No.7191 of 1998 with Cr. Misc. No.308/1998 happens to be. Furthermore, the Om Prakash Agraw al case (Supra) also neither been referred nor considered. Moreover in light of relevant provisions visualizing under Drugs and Cosmetic Act along with the principle propagated by the Hon'ble Apex Court as referred above , the view needs 26. reconsideration. On account of which, the matter is referred to Division Bench.
23. As such, office is directed to have the matter placed before Division Bench for reconsideration after taking permission from Hon'ble the Chief Justice.
(Aditya Kumar Trivedi, J.) PN/-
U T