K P SADANANDAN Vs. STATE

JUDGEMENT

(1.) Certain interesting questions of law arise in this appeal filed by the sole accused against his conviction and sentence. P.W. 4, Circle Inspector of Police, Economic Wing, searched the rice mill of the appellant suspecting storage of undeclared rice illegally transported from the Food Corporation of India godown. That was at 11 p.m. on 12-4-1988. The huge stock found was seized. Case was registered only for the contravention of Cl.3 of the Kerala Paddy and Rice (Declaration and Requisitioning of Stock) Order, 1966 (for short, "Paddy and Rice Order"), which involves only omission to declare stock of paddy or rice for which there is a period of three days. The contention of the appellant was that the rice was delivered the same day at 4 p.m. 'Santhosh Traders' for return after cleaning and hulling under Ext. D1 delivery note and seizure was in the process of so doing. Accepting this contention on the basis of materials collected by investigation the case was referred as mistake of fact. Suspecting the veracity of Ext. D1 and the correctness of the opinion formed by the investigating officer, the Special Judge issued notice to the Public Prosecutor. After hearing him, cognizance was taken for offences punishable under Ss.7(1)(a)(ii) and 9 of the Essential Commodities Act for having contravened Sections 3(2)(c) and (d) 9 thereof read with Cl.3 of the Paddy and Rice and Order and Clauses 7A and 8 of the Kerala Foodgrain Dealers' Licensing Order (for short "Licensing Order"). Appellant was convicted under both sections and sentenced under S.7(1)(a)(ii) to simple imprisonment for three months and to pay a fine of Rs. 1,000/- with a default sentence of simple imprisonment for two more weeks. No separate sentence was awarded under S.9.

(2.) The legality of the cognizance, in view of the refer report, was under serious challenge. Investigation involves not only collection of materials, but also formation of opinion and tiling of the report under S.173 of the Code of Criminal Procedure. That is the function of the police. On the materials, the police officer can place the accused for trial for the offence disclosed or if the materials are found insufficient, he can file a refer report also. When once the report is filed, then it is the realm of the court. Several particulars are necessary in the report and several relevant materials collected during investigation will have to be produced in court along with the report. Court is not bound by the opinion formed by the investigating officer. The opinion alone is not the report. The court can peruse the report and materials produced along with it in order to form an opinion as to what action is to be taken. It is immaterial whether the final report is a charge-sheet or refer report. If the materials are insufficient to disclose the offence, the court can refuse to take cognizance on the charge-sheet. If some other offences are disclosed, cognizance could be had for these offences. Likewise, if the refer report is found to be incorrect and the materials found to disclose some offence, cognizance could be had for that offence ignoring the refer report. If the investigating agency is given a long rope by making his advise binding on the court as final and conclusive and the court is deprived of the judicial discretion to decide whether cognizance is to be taken or not, it would be a travesty of justice opening the flood gates for corruption.

(3.) Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 and H.S. Bains v. State, AIR 1980 SC 1883 were rendered on cases instituted on complaint and referred under S.156(3) for investigation. In those cases, the Supreme Court said that when the police submitted a final report to the effect that no offence was disclosed, the Magistrate might either (i) decide that there is no sufficient ground for proceeding further and drop action, or (ii) he may take cognizance of the offence under S.190(1)(b) and issue process without being bound in any manner by the conclusion of the police, or (iii) he may take cognizance of the offence under S.190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under S.200. He can proceed under S.200 or S.202 if he thinks fit and dismiss the complaint under S.203 or issue process under S.204 only if he adopts the third alternative by which alone he is proceeding on the complaint. If he is adopting the second alternative, it is as if on a police report. Such a course he can adopt even if the police report on which action is taken is not on the basis of investigation under S.156(3) but on the information under S.154 and investigation on its basis.