- (1.) This Rule is directed against Order No.10 dated 9.9.76 passed by the learned Metropolitan Magistrate, 12th Court, Calcutta, in Case No.P.R/394 of 1976, whereby he rejected an application made by the defence Advocate for acquitting the accused under section 249, Criminal Procedure Code. A challan was submitted against the accused-petitioner under section 54A of the Calcutta Police Act (Act IV of 1866). The petitioner was found with having in his possession two main switches of British Patent make in England. When he was called upon to account for the same, he failed to render any satisfactory account. Accordingly, the challan is submitted against him. In the challan the Police officer had stated that he had his reasons to suspect that the articles found in possession of the accused were stolen properties.
(2.) It has been submitted before me that since the requirement of the section is 'reasons to believe' and not reasons to suspect, the challan is bad and accordingly the accused should not be proceeded with as the learned Magistrate had nothing else but the challan before him for proceeding against him. In this connection, the learned Advocate for the petitioner has cited the decision reported in (1) 59 C.W.N. 751 (R. N. Ghosh v. The State) at page 756. It has been held in that case that:- "a person, who is being prosecuted under section 62A of the Calcutta Police Act has a right to know with precision what exactly is the offence which he has committed in order that he might make an effective answer to the allegations made against him. In this view it is not merely a question of technical informality, which has occurred, in the present case. I consider this defect goes to the root of the matter. It is necessary that the accused should be told what exactly is the offence, which he has committed, and in the present case the challan being the only document before the Magistrate, the first duty, which the latter had, to discharge was to put questions to the accused and take his plea under section 242 of the Code. It would be extremely unfair to the Magistrate to expect that he would succeed by a process of clairvoyance, so to say, to get into the mind of the prosecuting officer and obtain the gist of the real offence which does not find mention in the challan or the charge-sheet." The prosecution in that case was under section 62A of the Calcutta Police Act. That section empowers a Police Officer not inferior to the rank of Sub-Inspector to give such directions as he thinks necessary either orally or in writing to any person with a view to securing public safety or convenience to keep order on and in all streets, quays, wharves and landing places and all other public places or places of public resorts. All that was stated in the challan in that case is that the petitioner and others were not keeping order and shouted at the top of their voices causing obstruction to the traffic. Under section 62A of the Police Act it has to be shown that they indulged in the violation of an order made or direction given in that behalf by the Police Officer concerned. Accordingly, as the challan did not indicate that there was an order made or a direction given by the Police Officer that challan was held to be not according to law and that was the only material that the learned Magistrate had before him in that case.
(3.) In this case I find apart from the challan the articles that were sized from the accused were foreign made articles for which the accused gave no explanation. Moreover, referring to section 54A of the Calcutta Police Act I find that the wording of the section requires that if anybody is found in possession of anything which, there is reason to believe, to have been stolen or fraudulently obtained, shall, if he fails to account for such possession or act to the satisfaction of the Magistrate, be liable to fine, etc. etc. The learned Magistrate considered the challan as well as the articles that were seized by the police and he examined the accused under section 251 of the Criminal Procedure Code and was satisfied that there are reasons to believe that the articles had been obtained through fraudulent means for which the accused has failed to render any satisfactory account. Therefore, the present case is certainly distinguishable from the case cited before me and has no manner of application to this case. Moreover, it would be seen that the learned Magistrate has already recorded the plea of the accused and he has pleaded not guilty to the offence charged. At this stage I am unable to interfere in the proceedings. The Rule is, therefore discharged. Rule discharged.;