STATE OF GUJARAT Vs. BHIMJI MANJI
LAWS(GJH)-1966-10-3
HIGH COURT OF GUJARAT
Decided on October 21,1966

STATE OF GUJARAT Appellant
VERSUS
BHIMJI MANJI Respondents

JUDGEMENT

M.U.SHAH - (1.) This is a group of seventeen criminal revision applications in which two identical questions of some importance have been raised and they will conveniently be disposed of by a common judgment. The questions that fall for our consideration are:- (1) Whether an offence for contravention of any provision of Rule 125 of the Defence of India Rules 1962 and made punishable under clause (a) of sub-rule (9) of Rule 125 of the Defence of India Rules 1962 hereinafter called the Rules is a cognizable offence or a non-cognizable one; and (ii) whether the Court can take cognizance of any alleged contravention of the Rules or of any order made under the Rules on a police report submitted on an unauthorized investigation.
(2.) It appears that the opponents in the first-listed sixteen different revision applications were charge-sheeted in different criminal Courts of the District of Kutch for alleged contravention of a provision of Rule 125 or of an order made thereunder and punishable under Rule 125(9)(a) of the Rules. The opponents who were accused in the trial Courts had pleaded not guilty to the charge. However they had raised a preliminary objection about the competency of the proceedings on the ground that the offence punishable under Rule 125(9)(a) of the Rules was a non-cognizable offence and further that the investigation had not been carried out under the order of the Magistrate and therefore the investigation was bad in law and the learned trying Magistrates were not empowered to take cognizance of the said cases. The learned trying Magistrates have accepted the preliminary objections raised on behalf of the accused in the different criminal cases. In some of the cases the proceedings have been dropped and in some the accused-opponents have been discharged. The State being aggrieved by these orders had preferred revision applications in all the matters in the Court of the learned Sessions Judge Kutch at Bhuj. The learned Sessions Judge has upheld the orders of the trial Courts on his taking the view that the offence punishable under Rule 125(9)(a) of the Rules was a non-cognizable one. Accordingly the learned Judge held that it was not necessary to make a reference to the High Court in the matters before him. Identical orders which are under challenge have been passed in the revision applications which have been placed for hearing before us this day. In Criminal Revision Application No. 392 of 1965 which forms a part of the group of seventeen criminal revision applications the original accused is the applicant. He has filed the application against the order of the learned trial Magistrate who has held that the offence was a cognizable one and that it was competent to the Magistrate to proceed with the enquiry.
(3.) We will first deal with the first question raised namely whether an offence for contravention of a provision of Rule 125 or of any order under the rule and made punishable under clause (a) of sub-rule (9) of Rule 125 of the Rules is a cognizable offence as is contended by the learned Government Pleader or is a non-cognizable offence 85 is contended on behalf of the original accused persons. In order to appreciate this contention we will first consider the relevant provisions of the Code of Criminal Procedure 1898 (Act No. V of 1898) hereinafter referred to as the Code. Sub-sec. (2) of sec. 1 of the Code extends the provisions of the Code to the whole of India except the State of Jammu and Kashmir and the Union territory of Manipur and provides that in the absence of any specific provision to the contrary nothing contained therein shall affect any special or local law in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. The Code has therefore to be looked to for procedural matters unless there is some other provision made in a special Act or law that might be existing at the date or that may be enacted thereafter. The Code contains its own dictionary in sec. 4. Clause (f) of sub-sec. (1) of sec. 4 of the (Code defines cognizable offence as meaning an offence for and cognizable case as meaning B case in which a police-officer within or without the presidency-towns may in accordance with the second schedule or under any law for the time being in force arrest without warrant. Clause (n) of sec. 4(1) of the Code defines a non-cognizable offence as meaning an offence for and non-cognizable case as meaning a case in which a police-officer within or without a presidency-town may not arrest without warrant. These definitions given in clauses (f) and (n) of sub-sec. (1) of sec 4 of the Code have a material bearing in deciding the main question in controversy as to whether the offence or offences in question are cognizable offences or non-cognizable ones. The test to decide whether an offence is a cognizable one or not is whether a police officer can make arrest without a warrant. Clause (b) defines bailable offences as meaning an offence shown as bailable in the second schedule or which is made bailable by any other law for the time being in force; and non-bailable offence as meaning any other offence. Sec. 5(1) provides that all offences under the Indian Penal Code shall be investigated enquired into and tried and otherwise dealt with according to the provisions contained in the Code. Sub-sec. (2) thereof makes a similar provision in relation to all offences under any other law but subject to any enactment for the time being in force regulating the manner or place of investigating enquiring into trying or otherwise dealing with such offences. Schedule II of the Code is a Tabular Statement of Offences in 8 columns. Column 3 thereof refers to the offences in which a police officer may or shall not arrest without a warrant. Column 4 is under the caption Whether a warrant or summons shall ordinarily issue in the first instance. Column 5 speaks of the nature of the offence being a bailable or not. Now the offences for which the accused were sought to be tried were punishable under sub-rule (9)(a) of rule 125 of the Rules. Schedule II provides for the relevant procedure to be followed in respect of offences under the Indian Penal Code as also for offences against laws other than the Indian Penal Code. With reference to offences against other laws it provides that if the offence is one punishable with imprisonment for three years and upwards police officer may arrest without a warrant. If the offence is the one punishable with imprisonment for less than three years the provision is that police officer has no power to arrest without a warrant. The test therefore whether a police officer can arrest without a warrant or not is the extent of the punishment which is provided for in the relevant law and for the relevant offence other than the Indian Penal Code. Rule 125(9)(a) is the punishing section with which we are here concerned. It provides that If any person contravenes any provision of this rule or any order made under this rule he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. Thus the substantive punishment which is provided for under Rule 125(9)(a) is for an imprisonment which may extend to three years. Having regard to the aforesaid definition of the expression cognizable offence as given in clause (f) of sub-sec. (1) of sec. 4 of the Code read with the Schedule II and the relevant entry it will appear that a police officer may in case of contravention of any provision of rule 125 or of any order thereunder arrest the offender without a warrant. The offence would thus be a cognizable offence. It follows therefore that the offence is not a non-cognizable offence as defined in clause (n) of sub-sec (1) of sec.4 of the Code. Having regard to the punishment which is available under rule 125(9)(a) of the Rules the case would be a warrant-case as defined in clause (w) of sec. 4(1) of the Code which defines warrant-case as meaning a case relating to an offence punishable with death imprisonment for life or imprisonment for a term exceeding one year. Sub-sec. (2) of sec. 5 of the Code provides as aforesaid that offences against other laws which would include the offence punishable under rule 125(9)(a) of the Rules shall be investigated enquired into tried and otherwise dealt with according to the provisions embodied in the Code. This is subject only to an enactment if any which regulates the manner or place of investigation enquiry trial or otherwise dealing with such offence. Thus it appears that even when an investigation is to be made and an enquiry and a trial have to be held for offences against other laws the Courts have to look to the Code unless it appears that any special enactment in force at the material time makes a special provision in the matter of dealing with such offences. We have thus to see whether the Rules which are the statutory rules enacted under the Defence of India Act 1962 and have the force of law contain any provision to deal with such offences otherwise than as provided under the Code.;


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