STATE OF GUJARAT Vs. PANCHA JIVA

JUDGEMENT

(1.) This is a revision petition filed by the State against the order passed by the learned Special Judicial Magistrate First Class (Railways) Rajkot dated August 31 1970 A criminal case was filed on a complaint made by the Railway Protection Force against the opponents. The complaint was for the offence under sec. 3(a) of the Railway Property (Unlawful Possession) Act 1966 In that criminal case by the impugned order the learned Magistrate allowed the prayer made on behalf of the defence for granting copies of documents and statements upon which the prosecution wanted to rely and rejected the objection raised on behalf of the prosecution in that behalf. Being dissatisfied with that order the State has filed the present revision petition to this court. It is urged by the learned Assistant Government Pleader on behalf of the State that the offence in question is a non-cognizable offence. The court takes cognizance of such an offence on receipt of a complaint as contemplated by sec. 190(1)(a) of the Code of Criminal Procedure 1898 and not upon a report in writing of such facts made by any police officer as contemplated by sec. 190(1)(b) the Criminal Procedure Code. In view of this the provisions of sec. 173(4) of the Code of Criminal Procedure cannot be pressed into service. The learned Magistrate was therefore not justified in law in directing the complainant to furnish copies of the statements and documents upon which the complainant wanted to rely upon. Sec. 173 of the Code of Criminal Procedure deals with the report of a police officer. Sec. 173(4) of the Code of Criminal Procedure which is material for our purpose reads :

(2.) On reading these two secs. 173 and 190 of the Code of Criminal Procedure it clearly appears that the accused is to get free of cost copies of documents and statements referred to in sub-sec. (4) of sec. 173 of the Code of Criminal Procedure if the court has taken cognizance of the offence on receipt of the report of a police officer. We are concerned in this case with the relevant provisions of the Railway Property (Unlawful Possession) Act 1966 (hereinafter referred to as the Act). Sec. 3 deals with penalty for unlawful possession of railway property. Sec. 4 deals with punishment for connivance at offences. Sec. 5 in terms state s that Notwithstanding anything contained in the Code of Criminal Procedure 1898 an offence under this Act shall not be cognizable. It is thus evident that the offence in question is not a cognizable offence. Sec. 8 deals with the question regarding inquiry to be made against arrested persons and sec. 9 deals with the power to summon persons to give evidence and produce documents. The provisions of this Act make it clear that the Magistrate has to take cognizance of such an offence upon a complaint as contemplated by sec. 190(1)(b) of the Code of Criminal Procedure. It is therefore evident that the provisions of sec. 173(4) of the Code of Criminal Procedure cannot be pressed into service. The order passed by the learned Magistrate therefore cannot be sustained in law. This conclusion of mine gets support from the decision of a Single Judge of the Calcutta High Court in the case of State v. Surya Rao A.I.R. 1969 Cal. 594. After referring to several authorities and the relevant provisions of the Code of Criminal Procedure 1898 and the provisions of the Act with which we are concerned in the instant case Talukdar J. has observed as under:-

(3.) I am in full agreement with the observations made by the learned Single Judge of the Calcutta High Court. 1 therefore need not dilate further on the point. The learned Magistrate was not justified in making the observations that this Act was a queer sort of enactment. The learned Magistrate has further observed that such provisions should be liberally interpreted and for doing substantial justice such a complainant should be ordered to furnish a copy of the statements and documents to the defence as contemplated by sec. 173(4) of the Code of Criminal Procedure In my opinion this cannot be a correct approach. We have to interpret the law as it is. Such an argument was advanced also in the aforesaid case of State v. D. Surya Rao (supra) and that argument was repelled observing the concept of liberal interpretation has been wrongly introduced by the learned Magistrate for interpreting the provisions of the special Act viz. Act 29 of 1966. Procedure is the handmaiden of law and the two are so interrelated that the one cannot be separated from the other and any deviation from the procedure laid down by a law on a purported liberal interpretation is not only unwarranted and untenable but is also illegal and is fraught with undoubted prejudice being caused to one of the parties to the proceedings vitiating the ultimate trial. Justice after all is in accordance with law It will not be irrelevant if one keeps in mind the object of the provisions contained in sec. 173(4) of the Code of Criminal Procedure after several provisions of the Code of Criminal Procedure were amended in the year 1955. Special procedure is to be adopted in cases instituted on police reports. In the trial of warrant cases Magistrate in cases instituted on a police report has to follow the procedure specified in sec. 251A and in other cases he has to follow the procedure specified in other provisions of Chapter XXI. The procedure specified in sec. 251A is that where the accused is brought before the Magistrate at the commencement of the trial the Magistrate has to satisfy himself that the documents referred to in sec. 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them he should cause them to be so furnished. Sub-sec. (2) of sec. 251A indicates that the Magistrate upon consideration of all the documents referred to in sec. 173 and making such examination if any of the accused as he thinks necessary and after giving the prosecution and the accused an opportunity of being heard considers the charge against the accused to be groundless he has to discharge him. Sub-sec. (3) of sec. 251A indicates that if the Magistrate on consideration of these documents and the examination of the accused if any made and after giving a hearing to the prosecution and the accused is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and which in his opinion could be adequately punished by him he has to frame in writing a charge against the accused. As the Magistrate is entitled to frame such a charge on consideration of these documents such a provision of furnishing copies in a ease to be instituted upon the police report has been embodied in see. 173 of the Code of Criminal Procedure. In any other ease a ease not instituted upon a police report evidence has to be recorded by the Magistrate. He has to hear the complainant and take all such evidence as is contemplated by sec. 252 of the Code of Criminal Procedure. It is only after consideration of such evidence the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XXI which the Magistrate is competent to try and which in his opinion could be adequately punished by him he has to frame the charge. This is the reason why such a distinction is made. In a case like the present one as the Magistrate has not to take cognizance of an offence upon a police report as contemplated by sec. 190(1)(b) of the Code of Criminal Procedure such an order cannot be passed by the learned Magistrate relying upon the provisions of see. 173(4) of the Code of Criminal Procedure. Even by analogy the principle cannot be extended to ease like the present one. The result is that the revision petition succeeds.