RE Vs. FR ANTONY V MARIARPUDHOM

JUDGEMENT

(1.) THE Revision Petitioner is the 1st accused in C. C. No. 70 of 1958 on the file of the District Magistrate's Court, Kottayam. He is the Editor of 'deepika' a Malayalam daily published from Kottayam. He along with the Printer and Publisher of the paper who is the 2nd accused, were proceeded against under S. 34 (1) of the Travancore-Cochin Public Safety Measures act (V of 1950) read with S. 117, I. P. C. THE proceedings were initiated by a complaint filed by the District Superintendent of Police, Kottayam. THE gist of the compliant is that the accused published in the "deepika" dated 14th August 1958 a leading article under the caption ""y&a-W-q-ol-p kl--bu" with the intention of instigating and inciting the public to commit offences involving criminal force and violence against the officers of Government. THE Government sanction necessary to institute the complaint as well as the authorisation in favour of the District superintendent of Police were also produced. THE schedule of witnesses was also filed. THE court took cognizance of the complaint and issued summons to the accused. THEy entered appearance and were released on bail and exempted from personal appearance. THE Editor who is the Revision Petitioner then objected to the initiation of the proceedings against him by a mere complaint of the District superintendent of Police and urged that the complaint should be dismissed. THE main contentions of the petitioner were (i) that the offences mentioned in the complaint being cognizable the District Superintendent of Police who got information about it was bound to follow the provisions of Chapter XIV of the criminal Procedure Code and to file a report after the necessary investigation and that the failure to do so involves a violation of S. 5 Clause. 1 and 2 of the criminal Procedure Code and (ii) as the case was not instituted on a police report the benefits of a trial under S. 251 (a) of the Criminal Procedure Code were denied to the accused. THEse as well as some other objections which were not pressed before us were repelled by the learned District Magistrate. This revision Petition is against the order dismissing the objection.

(2.) THE first point to be considered is whether the offence under S. 34 (1) of the Public Safety Measures Act being cognizable it was wrong to have initiated the proceedings against the accused by a mere complaint to the Magistrate by a Police Officer instead of filing a report before the magistrate after due investigation under Chapter XIV of the Criminal Procedure code, THE contention of learned counsel for the petitioner is that an investigation under Chapter XIV of the Criminal Procedure Code must necessarily precede the initiation of the proceedings against a person who is alleged to have committed a cognizable offence. In this connection the learned counsel has brought to our notice certain observations made by their Lordships of the supreme Court in H. N. Bishbud v. State of Delhi A. I. R. 1955 Supreme Court 196. That was a case under the Prevention of Corruption Act and the validity of the trial was challenged on the ground of the violation of the provisions of S. 5 (4)of the Act, which enjoins that certain offences shall not be investigated by a police officer below the rank of a Deputy Superintendent of Police except under orders of a Magistrate of the First Class. In considering the question whether the above provision was directory or mandatory their Lordships observed. "the Criminal Procedure Code provides not merely for judicial enquiry into or trial of alleged offences but also for prior investigation thereof. S. 5 of the Code shows that all offences "shall be investigated, inquired into, tried and otherwise dealt with in accordance with the Code" except in so far as any special enactment may provide otherwise]. For the purposes of investigation offences are divided into two categories 'cognizable' and 'non-cognizable'. When information of the commission of a cognizable offence is received or such commission is suspected, the appropriate police officer has the authority to enter on the investigation of the same [unless it appears to him that there is no sufficient ground]. But where the information relates to a noncognizable offence, he shall not investigate it without the order of a competent Magistrate. Thus it may be seen that according to the scheme of the code, investigation is a normal preliminary to an accused being put up for trial for a cognizable offence (except when the Magistrate takes cognizable otherwise than on a police report in which case he has the power under S. 202 of the Code to order investigation if he thinks fit)". THE import of the above observations is that before the accused is put up for trial for a cognizable offence, normally there should be an investigation except when the Magistrate takes cognizance of the offence otherwise than on a police report.

(3.) THE second objection raised by the learned counsel for the petitioner is that the accused is prejudiced by the procedure adopted by the police in initiating the proceedings against him by filing a complaint instead of a police report. THE contention is that because of the filing of the complaint the trial of the accused is being conducted under S. 252 to 259, Criminal procedure Code whereas if the proceedings were initiated by a police report the accused would have had the benefit of a trial under S. 251 (a ). It cannot be disputed that there are differences between the modes of trial envisaged by the two sections, but we are at a loss to find how the accused is prejudiced by not being tried under S. 251 (a ). Trial under S. 251 (a) is no doubt speedier but the section does not afford any special safegards for the accused which are not provided by S. 252 to 259. In fact as pointed out by the learned District magistrate the provision for cross-examining the prosecution witnesses both before and after the framing of the charge is an additional advantage. Except for the benefit of getting free copies of the documents specified in S. 173 (4)there are no special advantages to the accused in a trial under S. 251 (a ). However in this case where the complaint is based on a leading article published in a newspaper and besides filing a list of witnesses a list of the document was also given to the accused on the direction of the Magistrate, even that question does not assume much importance.