Hidayatullah, J. - (1.) The appellant is being prosecuted under S. 420, Indian Penal Code and under S. 7 of the Essential Commodities Act, 1955 for contravention of cls. (4) and (5) of the Iron and Steel Control Order. The prosecution was commenced by the Inspector of Police, Crime Branch C.I.D. Hyderabad by filing against him a charge-sheet under S. 173 of the Code of Criminal Procedure in respect of the offence of cheating which was intended to serve also as a report in writing of a public servant as required by S. 11 of the Essential Commodities Act, 1955. Learned City Magistrate, Secunderabad framed a charge against him under S. 251A(3) of the Code of Criminal Procedure in respect of both of the offences. The appellant then raised two preliminary objections:the first was that as the commodity was obtained and disposed of at Bombay, the Court at Secunderabad had no jurisdiction to try him. This objection which would have necessitated the recital of facts, has not been raised before us and it is not necessary to mention it again. The second objection was that as the police had filed a report under S. 11 of the Essential Commodities Act a trial of the offence under S. 7 could not be under S. 251A but under S. 252 of the Code of Criminal Procedure. He, therefore, asked that the charge framed against him should be quashed. This objection was rejected. The appellant thereupon moved the Sessions Judge in revision who declined to interfere. He filed a second revision in the High Court of Andhra Pradesh but it was dismissed by the order which is now under appeal.
(2.) In so far as the trial of the alleged offence under S.420, Indian Penal Code is concerned there is no objection to its trial under S. 251A. Code of Criminal Procedure. That provision is made for the procedure to be adopted in cases "instituted on a police report". Under that procedure the Magistrate has to satisfy himself. at the commencement of the trial, that the documents referred to in S.173 have been furnished to the accused and if they have not been furnished to cause them to be so furnished. The Magistrate must then consider all the documents and after making such examination, if any, of the accused, as the Magistrate thinks necessary and after giving the prosecution and accused an opportunity of being heard, the Magistrate must consider whether a charge should be framed against the accused or not. If he comes to the conclusion that the charge is groundless he must discharge him. On the other hand, if he is of the opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter which he is competent to try and which, in his opinion, could be adequately punished by him, he must frame a charge in writing against the accused and after explaining it to him record his plea and proceed according to it. Under S. 252, Criminal Procedure Code, it is provided as follows: "252(1) In any case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complaint (if any) and take all such evidence as may be produced in support of the prosecution: Provided that the Magistrate shall not be bound to hear any person as complainant has been made by a Court. (2) The Magistrate shall ascertain, from the complaint or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary." Under S.253, Criminal Procedure Code, if, upon taking all the evidence referred to in the section just quoted and making such examination, if any, of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate can discharge him. On the other hand, if it appears to the Magistrate that there are grounds for presuming that the accused has committed an offence which the Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he frames a charge against him and records a plea. If the accused does not plead guilty the Magistrate gives him time to state which of the prosecution witnesses he wishes to cross-examine, if any, and if he says that he does so, the witnesses are recalled and are allowed to be cross-examined.
(3.) Contention of the appellant is that by the words 'police report' in S. 251A of the Code of Criminal Procedure, is meant the report mentioned in S.173 which the police officer makes to a Magistrate in respect of offences investigated by him under Chapter XIV. The investigation is in respect of cognizable offences because non-cognizable offences may only be investigated by Police officers after being authorised in that behalf by a competent Magistrate. It is pointed out that under S. 190. congnizance of an offence is taken in different ways:(a) upon receiving a complaint of facts which constitute an offence, (b) upon a report in writing of such facts made by any police officer; and (c) upon information received from any person other than a police officer, or upon the Magistrate's own knowledge or suspicion that such offence has been committed. It is argued on the basis of this three-fold distinction that by the 'police report' in S.190(1) (b) is meant the charge-sheet of the police officer under S. 173 of the Code, and since the report in writing which the police officer makes under S. 11 of the Essential Commodities Act, 1955 is not a charge-sheet under S. 173 of the Code it must be equated to a complaint of facts under Section 190(1)(a). In view of this distinction it is contended that while the offence under S. 420, Indian Penal Code is triable under the procedure laid down in S.251A, Criminal Procedure Code, the offence under S.7 of the Essential Commodities Act is triable under the procedure laid down under S.252, Criminal Procedure Code. the appellant submits that either the two charges should be split up or the two offences should be tried under the procedure laid down by S.252 of the Code of Criminal Procedure as the procedure under S. 251-A, Criminal Procedure Code, does not afford the accused the chance of a second cross-examination which S. 252 of the Code gives, and there is prejudice to him in the trial of the offence under S. 7 of the Essential Commodities Act.;