ASSANAR Vs. STATE OF KERALA
LAWS(KER)-1968-10-6
HIGH COURT OF KERALA
Decided on October 07,1968

ASSANAR Appellant
VERSUS
STATE OF KERALA Respondents

JUDGEMENT

- (1.) THE petitioner is one of the three accused persons in a case under the Rubber Act before the Additional First Class Magistrate, ernakulam. He filed a petition for dropping the proceedings and the same has been dismissed by the Magistrate.
(2.) TO appreciate the contentions raised a few facts may be stated. The accused persons were found in possession of over 2257 kg. of rubber worth about Rs. 8,000/-without a valid permit by the police at mulanthuruthy; and the police submitted a first information report before the sub Magistrate and started investigation under S. 54 and 550 of the Code of Criminal procedure. The investigation revealed that no offence under the Penal Code was committed and the only offence committed was one under the Rubber Act. The rubber seized was also produced before the Sub Magistrate. The petitioner tried to get the rubber released to him; and ultimately, the matter came to this court in Crl. R. P. No. 46 of 1968. This Court directed that the rubber be released to the petitioner on his undertaking to produce it in court if so ordered by a competent magistrate within one month from the date of the order. The Sub Magistrate had no jurisdiction to try an offence under the Rubber Act, since S. 27a of the Act enacted that no court inferior to that of a Presidency magistrate or a Magistrate of the First Class should try any offence punishable under the Act. Subsequently, after the time mentioned by this Court in Crl. R p. No 46 of 1968, the case was transferred from the file of the Sub Magistrate to the file of the Additional First Class Magistrate. The police also produced sanction to prosecute under S. 27 of the Rubber Act. The lower court then directed the prosecution to furnish to the accused persons necessary papers under S. 173 of the Code of Criminal Procedure; and thereafter, the petitioner filed the petition which has given rise to the revision petition. The first argument of the counsel of the petitioner is that since the offences under the Rubber Act were non-cognizable, the lower court had no jurisdiction to take cognizance of the offence in this case on the report of a police officer, who had no power to investigate a non-cognizable offence. This argument has no force, because the jurisdiction of a criminal court to take cognizance of an offence brought to its notice does not depend upon the source from which it gets information regarding the commission of the offence. In other words, it is not the police report that confers jurisdiction on the magistrate. Under S. 190 of the Code of Criminal Procedure any Presidency magistrate, District Magistrate or Sub-divisional Magistrate and any other magistrate empowered in this behalf may take cognizance of any offence upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer or upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence has been committed. The jurisdiction of the magistrate under this section is quite wide: and he can take cognizance even upon his own knowledge or suspicion that an offence has been committed. I do not think any authority is required to support this: at any rate, I shall refer to a decision of the Supreme Court itself on the point. In H. N. Rishbud v. State of Delhi (AIR. 1955 SC. 196), Jagannadhadas J. has considered this question elaborately and has held that though a police report which results from an investigation is the material on which cognizance is taken, it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the court to take cognizance. His Lordship has pointed out that the lauguage of S. 190 is in marked contrast with that of other sections like ss, 193 and 195 to 199. Therefore, the magistrate had jurisdiction to take cognizance of the offence; and simply because the offence was brought to his notice by an invalid police report, it cannot be said that he had no such jurisdiction. As already stated, copies of necessary documents were furnished to the accused persons as contemplated by S. 173 of the Criminal procedure Code. S. 251a of the Code prescribes the procedure to be adopted in a case instituted on police report; and evidently, the procedure adopted by the lower court in this case is the one contemplated by that section. Again as already indicated S. 190 of the Code mentions the several sources of the information on which a magistrate can take cognizance. Under the three clauses of S. 190 (1), cognizance can be taken (1) on a report in writing by a police officer, (2) on information received from any person other than a police officer or on the magistrate's own knowledge or suspicion and (3) on receiving a complaint of facts. If the report falls under the first category, the procedure contemplated by S. 251a must be followed; and if the information or complaint falls in the second or the third category, the procedure under s. 252has to be followed. This is clear from Chapter XXI of the Code of Criminal procedure and has also been laid down in unequivocal terms by the Supreme Court in Pravin Chandra Mody v. State of Andhra Pradesh (AIR. 1965 SC. 1185 ). Therefore, it is clear that in cases falling within the two last categories mentioned above the court is bound to follow the procedure under S. 252 of the code. This is not the course followed by the lower court; and the lower court seems to think that the failure to follow this procedure is not fatal and the same can be cured under S. 537. S. 537 deals with reversals of sentences or findings in irregular proceedings by superior courts: and superior courts will not reverse such sentences or findings unless there is failure of justice. Even in such a case, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceeding (vide the Explanation to the section ). In this case, the objection has been taken at the earliest opportunity before the evidence was started. Therefore, there is no need for pressing S. 537 into service.
(3.) ANOTHER argument which appears to have been adduced before the lower court and rejected by it is that the magistrate had not authorised the investigation of the case under S. 155 (2) of the Code of criminal Procedure and therefore, the investigation was invalid. The magistrate seems to think that in the present case it was not necessary, because the police started investigation under S. 54 and 550 of the Code which they were competent to do. He also states that when the magistrate takes cognizance on a police report in a non-cognizable case, the proceedings are not vitiated if the magistrate acted in good faith; and that such defect is curable. In a case where a cognizable offence and a non-cognizable offence are involved, the police can investigate both the offences and can also include both the offences in the charge-sheet they file. Simply because one of the offences is non-cognizable, the police are not precluded from investigating that offence if it arises out of the same facts. In such a case both the offences can be investigated and the report filed by the police may include both the offences as well. In a case like the present one also, where, at the time when the police started investigation, they suspected the commission of a cognizable offence, the police are entitled to make the investigation. But, when the investigation discloses that the offence committed is only a non-cognizable one, I do not think that the police need pursue the matter further, file a report and continue the prosecution on the basis of the report. That is what has been done in this case. S. 27 of the rubber Act says that the Central Government, the Rubber Board or a person with the consent of either of them alone can commence a prosecution under the Act. All the offences under the Rubber Act are non-cognizable; and normally, the prosecution should be commenced on a complaint either by the Central Government or the Rubber Board or by a person who has the consent of either of the said authorities. In such a case the procedure to be followed is the one under S. 252 of the Code. In this case, when it was disclosed that the offence committed was only one "under the Rubber Act, the matter was still with the Sub magistrate, who had no jurisdiction to entertain a complaint under the Act. (Under S. 27a of the Act bo court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any offence under the Act ). It was at that stage that the matter came up to this Court and this Court directed the release of the rubber to the petitioner. This Court also directed that the petitioner should produce the rubber before a competent court within a month. In my opinion, all that followed after that order at the instance of the police was unnecessary; and if the Rubber Board or the Central Government were serious in the matter, they should have moved in the matter and filed a complaint before the Additional First Class Magistrate (the lower court), who alone has jurisdiction to try the offence. The question here is not whether the First class Magistrate has jurisdiction to take cognizance of the offence: the question is whether he should take cognizance unless he was moved by the Rubber board, the Central Government or a person with consent from either of those authorities. The police need not have taken up the responsibility of figuring as the complainant or the representative of the Central Government or the rubber Board in a case involving a non-cognizable offence. There is also no meaning in the magistrate saying that the defect is curable. As he himself has said, the defect is curable if he acted in good faith. If the objection is taken at the earliest opportunity, as in the present case, how can it be said that the magistrate acted in good faith if he overrules the objection.;


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