ASHOKE KUMAR PAUL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS rule arises on an application under Section for read with Section 482 of the Criminal procedure Code, 1973 and is for quashing me proceeding of C. R. Case no. 1170 of 1975, pending in the court of Shri N. Mukherji, Metropolitan magistrate 8th court, Calcutta under section. 114 (11) (a) of the Defence of India Rules, 1971 and is against order No. 1 dated, 18. 2. 76 passed by the learned Magistrate rejecting the petitioner's application that the case be tried with due regard to Section 2 (d)of the Code. The facts of the case may, briefly, be stated as follows :-

(2.) ON 31. 7. 75 Shri P. K. Dutta of the Enforcement Branch lodged a first information report by way of complaint with Burrabuzar Police Station alleging that on that day at about 13. 30 hours the petitioner who was said to have been in charge of M/s. B. K. Paul of 161, Old China Bazar Street, Calcutta, had not displayed the Stock and price Board of 20 gross of exercise books of different number and size. The complainant alleged that the provision of paragraph 3 of the West Bengal Declaration of Stock and Price of essential Commodities Order, 1971 has been violated and the petitioner is punishable under Section 114 (11) (a)of the Defence of India Rule, 1971. A police challan purporting to have been prepared under Section 173 of the code was subsequently submitted before the learned Magistrate. On 6. 1. 76 at the time of framing of charge the petitioner filed an application challenging the legality of the cognizance taken by the learned court inasmuch as provisions of Section 173 (2) of the Code was not complied with. The cognizance, if could be taken at all, could be taken under section 190 (1) (a) of the Code. The learned Magistrate rejected the contentions raised by the petitioner. Being aggrieved, the petitioner has come to this court.

(3.) MR. Promode Ranjan Roy, learned. Advocate appearing on behalf of the petitioner in the first place contends that provisions of Section 173 (2)were not complied with and that being so, the Magistrate was wrong in taking cognizance treating the report as a report submitted by a police officer. Mr. Roy refers to Section 2 (r) of the Code which defines a police report. It says "that police report means a report forwarded by a police officer to a magistrate under Sub-Section (2) of section 173". 173 (2) provides that as soon as investigation is completed, the officer-in-charge of the police station shall forward to a Magistrate, empowered to take cognizance of the offence on a police report. " mr. Roy submits that Section 2 (r) has been added in the new Code and it has clearly defined what is meant by a police report. In the very definition it has been clearly stated "a police report means a report forwarded by a police officer under Section 173 (2) and such a report can be forwarded to a magistrate only by the officer-in-charge of a police station. In the present case admittedly, the investigating officer who forwarded the report to the learned magistrate was not in charge of a police station and that being so, the report could not have been treated by the learned Magistrate as a police report and as such cognizance ought not to have been taken under Section 190 (1) (b) of the Code. In this connection mr. Roy also draws my attention to rule 183 of the Defence of India Rules which provides that no court or Tribunal shall take cognizance of any alleged contravention of these Rules or of any order made there under, except on a report in writing of the facts constituting such contravention made by a public servant. This report, according to Mr. Roy, is not a report which satisfies the definition of a police report as mentioned in Section 2 (r) of the Code. In support of his contention mr. Roy first refers to a decision reported in 70 C. W. N. , 779 (S. K. Banerjee v. The State ). In this case, it has been held that if an information, even though in writing, reaches to Magistrate who decides to take cognizance of the offence on that written information as also on other materials, the Magistrate does so under Section 190 (1) (c) and not under Section 190 (1) (a) of the code which he is competent to do only upon complaint. I do not know how the proposition laid down in this case helps the petitioner. Mr. Roy next relies. on a decision reported in A. I. R. 1955, supreme Court, 196 (H. N. Rishbud and another -V- State of Delhi ). It has been held that the final step in the investigation, viz. , the formation of the information as to whether or not there is a case to place the accused on trial is to be that of the officer-in-charge of the police station. There is no provision permitting delegation thereof, but only a provision entitling superior officer to supervise or participate under section 551. Mr. Roy next relies on a decision reported in 1977 C. H. N. 379 (Tarab ali Khan and others -V- The State of west Bengal ). On going through the decision I am of the opinion that the decision without helping the petitioner rather goes against him. In this case, their Lordships relied on A. I. R. 1955, supreme Court, 196; A. I. R. 1963, calcutta 191 and approved 1976 C. H. N. , 864 and held that in that case the report was not submitted by the officer-in-charge of a police station and as such it was an irregularity, but the irregularity arose due to the fact that it was not so done by or at the instance of the officer-in-charge of the police station and is cured by section 156 (2)of the Code. It was further held that an irregularity even if be taken to be an illegality is an illegality in an investigation which would not affect the cognizance that was subsequently taken by the Magistrate unless it can be shown that the petitioners have been materially prejudiced thereby.