(1.)THIS reference comes on the report of the learned Additional Sessions Judge, Sirohi, dated the 12th December, 1959.
(2.)THE facts giving rise to it are that one Veerchand was challaned by the police in the court of Magistrate First Class, Abu Road, under sec. 7 of the Essential Commodities Act, 1955, for contravening the provisions of sec. 3 of the Imported Food grains (Prohibition of Unauthorised Sale) Order, 1958. On 28th October, 1959, the Magistrate framed a charge-sheet against him for the said offence. Aggrieved by the said proceedings, the accused filed a revision application which was heard by the learned Additional Sessions Judge, Sirohi. THE learned Judge has reported that the Magistrate had no jurisdiction to take cognizance of the said offence under sec. 190 (l) (a) or (b) Cr. P. C. It is next observed by him that even if the Magistrate was authorised to take cognizance of the said offence, he ought to have proceeded under sec 252 and not under sec. 251-A Cr. P. C.
Learned Asstt. Government Advocate opposes the reference. It is urged by him that the Magistrate could take cognizance of the offence under sec. 11 of the Essential Commodities Act, 1955 (which will hereinafter be referred as the Act) on the report of a police officer and that the learned Additional Sessions Judge was wrong in holding an opinion to the contrary. It is next pointed out by him that the case having been instituted on a police report, the Magistrate had jurisdiction to proceed under sec. 251 A and that sec. 252 had no application, because the case was not instituted otherwise than on a police report.
Learned counsel for the accused supports the reference on three grounds including the two set out by the learned Addl. Sessions Judge mentioned above. It is contended by him, in the first instance, that sec. 11 of the Act contemplates that there should be a complaint by a public servant in writing of the facts constituting the offence for which a particular accused is prosecuted, that it does not envisage a police report and since there was no such complaint of a public servant in the present case, the Magistrate had no jurisdiction to take cognizance of the offence. This is the same argument which has been put forward by the learned Additional Sessions Judge in his report. Since the decision of this argument turns upon the interpretation of sec. 11 of the Act, it would be proper to reproduce it here. It runs as follows: - "no Court shall take cognizance of any offence punishable under this Act except on a report in writing of (he facts constituting such offence made by a person who is a public servant as defined in sec. 21 of the Indian Penal Code. "
It is apparent from the plain reading of this section that the term 'complaint' as defined in the Code of Criminal Procedure does not feature anywhere in the section. It appears that the learned Additional Sessions Judge has equated the term 'report' with the term 'complaint' and this has led to a little confusion in his interpretation of the section. If the legislature had used the word 'complaint', then there could be force in the argument advanced by learned counsel for the accused, because the term 'complaint' as defined in section 4 (h) Cr. P. C. , does not include the report of a police officer. But since the word used in the section is 'report' and not 'compliant', I see no reason why the report of a Station House Officer, who is undoubtedly a public servant, as defined in sec. 51 of the Indian Penal Code, should be excluded from the purview of this section. The main purpose of making this provision was to exclude complaints by private persons, so that the accused may not be harassed. At the same time, its purpose was not to confine the report to a public servant other than a police officer. It may be pointed out that Rule 130 (1) of the Defence of India Rules was substantially in the same terms as sec. 11 of the Act. It ran as follows: - "no Court or Tribunal shall take cognizance of any alleged contravention of these Rules, except on a report in writing of the facts constituting such contravention, made by a public servant. " In Purushottam Devji vs. Emperor (1) it was held while referring to the said Rule 153 (1) that "a charge-sheet sent by a sub-Inspector of Police would be a report within the meaning of this rule". Similarly, in Sagarmal Agarwala vs. Emperor (2) where the Sub-Inspector had submitted a regular written charge-sheet, it was held that it was a report in writing of public servant and hence there was a sufficient compliance with the provisions of the rule in question. Similarly in Hatimali vs. The Crown (3) it was observed as follows: - "i am, I must confess, unable to discern the force in the contention that the expression "public servant" in Defence of India R. 130 (1) did not include a police officer and that it was therefore, not open to the trial Court to take cognizance of the contravention in question on the report in writing of D. L. Verma (P. W. 3) Sub-Inspector. That he was a public servant for the purposes of the rule is clear from the definition of "public servant" in Defence of India R. 7 (10); and Defence of India R. 130 (1) lays it down that no Court or Tribunal shall take cognizance of any alleged contravention of the rules or of an order made thereunder except on a report in writing of the facts constituting such contravention made by a public servant". Thus, the view taken by this Court is supported by the authorities cited above and there is no force in the contention raised by learned counsel for the accused in this behalf. The Magistrate is empowered to take cognizance on a report in writing of facts constituting the offence made by a police officer under sec. 190 (l) (b) and, therefore, the learned Addl. Sessions Judge is not correct in saying that the Magistrate could not take cognizance upon a charge-sheet presented by a Sub-Inspector of Police.
As regards the second irregularity pointed out by the learned Additional Sessions Judge it may be observed that he is not correct in saying that the Magistrate ought to have proceeded under sec. 252 Cr. P. C. The proceedings in the present case were instituted on a police report and therefore the Magistrate did not commit any error in proceeding under Sec. 251-A Cr. P. C.
Another argument which has been raised by learned counsel for the accused in this Court is, that the report made by the Sub-Inspector of Police does not contain all the facts which constitute the offence and for this reason also the Magistrate could not take cognizance of the offence. I have gone through the charge-sheet presented by the Sub-Inspector of Police and I agree with the learned counsel for the accused that he has not mentioned therein all the necessary facts constituting an offence punishable under sec. 7 of the Act. It was simply alleged by him that the accused had contravened the provisions of sec. 3 of the Imported Foodgrains (Prohibition of Unauthorised Sale) Order, 1958. The said section provides that no person other than an authorised dealer shall sell or store or offer for sale imported foodgrains in any quantity either split or unsplit or mixed with other grains. The Sub-Inspector has, no doubt, alleged that the accused had taken delivery of bags of foreign wheat at Abu Road and despatched them to the flour mill of one Ram-chandia and that 9 bags of flour and 16 bags of wheat were recovered from the premises of the said mill, but he did not care to make it clear in his report in what manner the accused had contravened the provisions of sec. 3 of the said Order, that is, whether he had sold the grain or offered it for sale of stored it for some other purpose. A perusal of the said section shows that it prohibits every person other than an authorised dealer, as defined in sec. 2, from selling or storing or offering for sale imported foodgrains in any quantity whether the said foodgrain is split or unsplit or mixed with other grains. The Sub-Inspector ought to have clarified it in his report whether the accused had sold the property or offered it for sale or that he had stored it for sale or for any other purpose. Thus, the necessary facts which would have constituted the offence were not mentioned in the report of the Sub-Inspector and so long as the report does not contain the necessary facts constituting the offence, the Magistrate could not take cognizance of the offence under sec. 11 of the Act also under sec. 190 (l) (b) Cr. P. C. In Chetandas Tekchand vs. Emperor (4) it was observed that "the report under R. 130 (Defence of India Rules) must state the facts which constitute the offence and it is a condition of fundamental importance. The proceedings would not fail because all detailed facts were not mentioned in the police report. Material facts which are necessary to prove the offence against a particular accused should be stated. " This view was followed in Rechpal Singh vs. Rex (5) and also in Kanhaiyalal vs. The State (6 ). The charge sheet which was framed by the Magistrate in the present case, on the basis of the police report also shows that it is lacking in essential particulars referred above. So long as the ingredients of the offence alleged against the accused are not mentioned in the report and in the charge, he cannot meet the case of the prosecution. On this ground, the reference is fit to be accepted.
The reference is therefore allowed and the proceedings taken by the Magistrate so far are quashed. .