SUNIL KUMAR DATTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application is directed against an order of Shri Amal Kumar Chatterjee, Presidency Magistrate, Calcutta, rejecting a prayer made by the accused petitioners for supplying copies of statements which may have been recorded by the Excise Officer in the course of the investigation of the case, which is one under Section 120B of the Indian Penal Code taken with Section 46 (a) of the Bengal Excise Act. The learned Magistrate observed that the investigation having been made under a special statute, namely, Bengal Excise Act, the statutory provisions of Section 173 (4) of the Criminal Procedure Code were not applicable and therefore the accused were not entitled to copies, as of right The learned Magistrate also considered whether he should use his discretion in directing that copies should be furnished, and referred to the decision in Natabar Jana v. State, where the question of supplying copies of statements of witnesses recorded by the police in a case where the investigation was not held under Chapter 14 of the Code, was considered. The learned Magistrate however did not consider it necessary to exercise his discretion in favour of the accused in view of the facts of the particular case.

(2.) Mr. Ajit Kumar Dutt appearing for the petitioners has urged that in view of the provisions of Section 74 and particularly Section 74(4) of the Bengal Excise Act 1909, an investigation by the Excise Officer must be deemed to be an investigation under Chapter 14 of the Code, and therefore the provisions of Section 173 (4) of the Criminal Procedure Code are attracted, and therefore the accused are entitled to be furnished with the copies of the statements which may have been recorded by the Excise Officer in the course of the investigation. There is a decision to the contrary by a Division Bench of this Court, namely, the Superintendent and Remembrancer of Legal Affairs, Government of West Bengal v. Basudeb Das, 66 Cal WN 1040. Guha Ray, J., who delivered the judgment of the Bench held that in view of the terms of Section 74 of the Bengal Excise Act as it exists at present, the provisions of Section 173 (4) of the Code cannot be said to be applicable to a case investigated by an Excise Officer, and it is not open to the Magistrate to make an order directing the Excise Officer to make over to the accused before the commencement of the trial copies of the report in regard to the charge and of the first information report and all other relevant papers on which the prosecution proposes to rely. Mr. Dutt has urged that the Division Bench in delivering the above judgment did not sufficiently consider the provisions of Sub-section (4) of Section 74 of the Bengal Excise Act, which provides that when an investigation by an Excise Officer is completed and it appears that there is sufficient evidence, the Investigating Officer shall submit a report to a Magistrate having jurisdiction to enquire into or try the case, and the report shall for the purposes of Section 190 of the Criminal Procedure Code the deemed to be a police report. Guha Ray, J., relied on the fact that by Sub-section (i) of Section 74 Sections 160 to 171 of the Criminal Procedure Code were made applicable and Section 173 was not made applicable and on the other hand there was a specific provision in Sub-section (4) of Section 74 for forwarding the report to the Magistrate on which the Magistrate was to take cognizance. Guha Ray, J., also referred to other provisions of the Excise Act and came to the conclusion that an investigation by an Excise Officer was an investigation under the special provisions of the Excise Act itself, although he could exercise in the course of the investigation certain powers conferred by Sections 160 to 171 of the Criminal Procedure Code. Mr. Dutt has relied on the fact that Sub-section (4) of Section 74 uses the term 'police report' and provides that the report submitted by an Excise Officer after investigation shall be deemed to be a police report for the purposes of Section 190 of the Criminal Procedure Code. He has referred to the technical meaning of the term 'police report' as interpreted by various decisions of this Court, one of the latest of which is Premchand Khetry v. State, wherein after referring to the previous cases it was observed that the expression. 'Police report', as used in the Code for reports of offences made by the police, carries a special meaning; as used in the old Section 190 (1) (b) of the Code the expression was interpreted as meaning reports made under Section 173 of the Code, that is to say, reports of cognizable offences or of non-cognizable offences with regard to which there had been a direction by the Magistrate to investigate, made after an investigation under Chapter 14. Mr. Dutt has urged that use of the term 'police report' in Sub-section (4) of Section 74 must be taken in that particular sense and that, therefore, the report of the Excise Officer submitted to the Magistrate after investigation must be deemed to be a report under Section 173 and, therefore, all the provisions of Section 173 of the Code would be attracted, including the provisions of Section 173 (4) under which the Investigating Officer, after submitting his report to the Magistrate, is under the obligation to furnish to the accused copies of the relevant documents including the statements of witnesses on which the prosecution relies.

(3.) It should be pointed out, however, that there are various considerations which negative the argument of Mr. Dutt. The first consideration which may be mentioned is that while Sub-section (1) of Section 74 of the Excise Act makes Sections 160 to 171 of the Code applicable, it does not specifically make Section 173 applicable; but, on the other hand, Sub-section (4) provides for submission of report to a Magistrate after the investigation is complete, and moreover the Act provides in Section 83 that no Magistrate shall take cognizance of an offence referred to under Sections 46, 48, 52 and 53, except of his own knowledge and suspicion or on complaint or report by an Excise Officer or an Officer empowered in this behalf, by the Provincial Government; and in respect of offences under Sections 54, 48 and 59 except when the complaint or report is of the Collector or an Excise Officer authorised by the Collector in this behalf. Ordinarily, therefore, an Officer-in-Charge of a police station cannot investigate a case under the Excise Act or submit a report under Section 173 (4). It is no doubt true that Sub-section (3) of Section 74 provides that for the purposes of Section 156 of the Criminal Procedure Code, the area to which an Excise Officer is appointed shall be deemed to be a police station and such Officer shall be deemed to be an Officer-in-charge of such, station, -- but this is only for the purposes of enabling the Excise Officer to carry out the Investigation, without obtaining the order of a Magistrate. It does not alter the fact that excise offences can only be investigated by Excise Officers and not by regular Police Officers, who are Officers-in-Charge of Police stations.