SANTOSH KUMAR SARKAR Vs. STATE

JUDGEMENT

(1.) This is an application under Section 561A of the Code of Criminal Procedure filed by the Petitioner Santosh Kumar Sarkar for quashing a proceeding under Rule 114(11a.) of the Defence of India Rules, 1971, pending in the Sixth Court of Judicial Magistrate at Sealdah.

(2.) Upon a complaint lodged with the Officer-in-charge, Chitpore P.S., Calcutta, the Police searched the office of the firm Messrs. S.K. Sarkar at 12/1 Nilmoni Mitra Road and seized a large number of bags containing different types of pulses and on physical verification of the stock of pulses with reference to the stock displayed, six bags of 'kalai' and seven bags of 'arahar' were found short in the stock and according to the Police, there was a violation by the accused Petitioner of the provision as laid down in para. 3 of the West Bengal Declaration of Stock and Price of Essential Commodities Order, 1917, as subsequently amended in 1972 punishable under Rule 114(11a) of the Defence of India Rules, 1971. The Police submitted a report in the West Bengal Form No. 4251 with a prayer that the accused persons may be proceeded against according to law. It was stated in the report form popularly known as challan that it may be treated as complaint under Rule 183, Defence of India Rules, 1971. The Police Magistrate at Sealdah Court noted in the order-sheet that he received the challan under Rule 114(11a), Defence of India Rules, against the accused who was on Court bail. Then he transferred the case to the file of another Magistrate for disposal. The bags were seized and it appears from the order-sheet that on the prayer of the accused the articles seized were directed to be handed over to the person from whom they were seized on a bond Rs. 20,000 with one surety with liberty to sell the goods with an undertaking to produce the sale proceeds on call. There was further direction that an account of the sale must be furnished as the goods were sold. Before this Court the Petitioner prays that the proceeding started against him should be quashed.

(3.) I have heard Mr. D.C. Roy, the learned Advocate appearing on behalf of the Petitioner and Mr. Palit for the State, It had been first contended that the learned Magistrate had no jurisdiction to take cognizance of the offence against the Petitioner upon the challan submitted by the Police Officer in respect of a non-cognizable offence which was investigated into by the Police with on permission of the Magistrate. Mr. Roy's contention is that the challan cannot be treated in any view of the matter as the complaint. In this connexion my attention has been drawn by the learned Advocates of both the parties to the decisions in the cases of Ganga Prasad Kanoo 48 Cr.L.J. 557, Nanakraj Pandit v. State,1961 1 CrLJ 644 and Abdul Halim v. State, 1961 AIR(Cal) 257 The decisions should be applied according to the facts and circumstances of each case. Simply stated, in the case before me, the Police on receipt of a complaint verified the stock of pulses and in connection with the Thana case started on the complaint found that the stock of pulses was short by some bags contrary to the statement of stock displayed for the public. The Sub-Inspector of Police of the Enforcement Branch found that due to the violation of the provision indicated in para. 3 of the West Bengal Declaration of Stock and Price of Essential Commodities Order, 1971, duly amended in 1972, there was an offence punishable under Rule 114(11a) of the Defence of India Rules, 1971. The Police Officer, therefore, wrote these facts constituting an offence prima facie in the form of a challan and submitted to the Police Magistrate at Sealdah for starting a case against the accused. It has been clearly stated in the challan that the same may be treated as complaint under Rule 183 of the Defence of India Rules, 1971. The question arises whether this written report which was to be treated as the complaint was sufficient for the learned Magistrate to take cognizance of the offence in a case like the present one under the present Defence of India Rules. The Magistrate can take cognizance of the offence upon a written report or complaint by a public servant. The written report in the form of challan in the present case submitted by the Sub-Inspector of Police of the Enforcement Branch, a public servant can be treated quite validly under law as a complaint on which the Magistrate can take appropriate action. The question of taking permission of the learned Magistrate for investigation of a case registered at the Thana, does not arise. There may be a complaint by the Police Officer or by a public servant in writing in the form of report which comes under the purview of Section 190 of the Code of Criminal Procedure. As the complaint was made by a public servant in the discharge of his official duty there is no necessity for his initial examination for taking cognizance by the Magistrate in view of the introduction of Clause (aa) in the proviso to Section 200 of the Code of Criminal Procedure. Taking the simple facts as they are without putting a cloak of any complication or complexity upon them, I do not find any bar in law for the learned Police Magistrate at Sealdah in taking cognizance of the offence in question. In my view, there has been a valid complaint for the learned Magistrate to act upon it. I do not think that the decision particularly relied upon by Mr. Roy in the case of Abdul Halim Supra will be of no help to him as the facts are different. The case before me is one under the Defence of India Rules and not for any offence under the Indian Penal Code. The decision in the case of Nanakraj Pandit Supra may be of some help particularly for the reason that Sen J. in that case referred to the case of Ganga Prosad Kanoo Supra already mentioned by me which was decided by a Division Bench of this Court. From the decision of the Division Bench, it can be held that the Police report can be held to be a good complaint as it is made by a public servant and that cognizance may be taken thereon.