Y KANKA RAO Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) A question relating to the procedure to be adopted in the trial of offences punishable under Sec. 34 of ihe ANDHRA PRADESH EXCISE ACT, 1968 is raised in this Criminal Revision Case. Relying on an unrepbrted decision of A.D.V. Reddy, J. in Crl. R C. No. 122 of 1972, it is submi ted by the learned counsel for the petitioner, Sri Dixit, that under Section 61 (1) (b), the initiation of proceedings before a Magistrate for any offence punishable under any section other than Section 48 of the ANDHRA PRADESH EXCISE ACT, 1968 is by way of complaint by an Excise Officer and not by laying a charge-sheet and that the procedure, therefore, to be followed should be the one specified from section 252 onwards in Chapter XXI Cr. P.C. and not the procedure specified in section 251 (A) Cr. P.C. It is true that the learned Judge held that an Excise Officer can only lay a complaint and cannot file a charge-sheet and as such the procedure in warrant cases relating to private complaints indicated from section 252 Cr P.C. onwards should be followed. But the expression employed in section 61 (1) (b) is "complaint or report of an Excise or police officer".

(2.) Therefore, the situation of submission or a 'report'or charge-sheet by an Excise Officer falls, without controversy, within the contents of the words used in section 61 (I) (b) It is also clear from the judgment of the learned Judge that the provisions of sections 56 and 57 of the ANDHRA PRADESH EXCISE ACT, 1968 were not brought to his notice. Section 56 provides that any Excise Officer, not below the rank of an Excise Sub Inspector, may exercise, within such area as may be notified in this behalf as regards offences under sections 34, 35, 36. and 37, powers conferred on an officer inchargc of Police Station by the provisions of the Criminal Procedure Code of 1898. Under section 57, the report submitted by an Excise Officer not below the rank of an Excise Sub-Inspector after investigation to a Magistrate, having jurisdiction to enquire into or try the case, shall, for the purpose of section 190 Cr. P.C. be deemed to be a Police report. When such is the deeming provisions explicitly provided in the statute, I am of the view that the decision of the learned judge, with due respect to him, is not sustainable. In view of the general importance of the question involved, I am of the opinion that the matter should be considered and decided by a Division Bench of this Court. The case is, therefore, referred to a Division Bench. The papers may be placed before My Lord the Chief Justice for necessary orders as to posting at an early date. (Then the case came before the Division Bench consisting of Chinnappa Reddy and Lakshmaiah, JJ ) ORDER (The order of the bench pronounced by Chinnappa Reddy, J) These three cases have been placed before us for our opinion by an order of our learned brother Cbennakesava Reddy, J. One of the questions raised in these three cases is whether the procedure prescribed by section 251-A or section 252 to 258 Cr. P.C. should be followed in cases instituted before a Magistrate by an Excise Officer. In Crl. P.C. 122/72 A.D.V. Reddy, J had taken the view that the report of an Excise Officer could not be considered to be the report of the Police Officer, and in such cases the procedure prescribed by Sections 252 to 258 Cr P.C. alone should be followed. Our learned brother Chennakesava Reddy, J. did not agree with that view. Our learned brother has pointed out that section 57 of the Excise Act was apparently not brought to the notice of A.D V. Reddy, J, we are inclind to agree with Chennakesava Reddy, J. Section 251-A Cr. P. C. provides for the procedure to be followed in a case instituted upon a police report. Section 190 Cr. P. C.-enables the court to take cognizance of an offence either on a police report or on a complaint or On the Magistrate's own knowledge or information. Section 57 of the Excise Act expressly enacts that for purpose of section 190 Cr. P. C. the report of the Excise Officer should be deemed to be a police report. In the face of this provision, we do not see how the report of the Excise Officer can be treated as a complaint and not as a police report.

(3.) Sri Dixit the learned counsel urged that under section 61 (I) (b) of the Excise Act it is provided that no Magistrate shall take cognizance of an offence punishable under the other sections of the Act except on his own knoweldge or suspicion or on the complaint or report of an Excise or police Officer According to Sri Dixit this provision shows that in the case of an Excise Officer the document be submits to the court is called a complaint while in the case of a police officer it is called a report. We cannot agree with the submission of Sri. Dixit. If we agree with the submission of Sri. Dixit, Section 57 of the Excise Act would become meaningless. We therefore agree with the view expressed by our learned brother Chennakesava Reddy, J. in his order for reference. The case will go back to the learned Single Judge for Final Disposal. (Then the case came before Chennakesava Reddy, J.) ORDER