STATE Vs. NEWAL MAHTO

JUDGEMENT

(1.) These two appeals which arise out of the orders of acquittal purporting to be under Section 247 of the Code of Criminal Procedure are taken up together as common question of law is involved in both. Both the cases out of which these two appeals arise were under Section 47 of the Excise Act. In the case out of which Government Appeal No, 38 arises cognizance of the case was taken on 29-11-1965, on the basis of a prosecution report dated the 11th November, 1965, submitted by a Sub-Inspector of Excise about seizure of certain implements for manufacture of illicit liquor and also seizure of one litre illicitly distilled Mahua liquor from the possession of Newal Mahto respondent in Government Appeal No 38. In the case out of which the other appeal arises cognizance was taken on 23-3-1966, on the basis of a report by the Sub-Inspector of Excise, Ram-garh, East Circle, regarding recovery of some illicitly distilled liquor from the possession of Bishnu Bedia the respondent in this appeal After cognizance was taken both the cases were transferred to Shri S. D. Sharma. Munsif-Magistrate, Hazaribagh. In the case out of which appeal No. 38 arises processes were issued for the appearance of the accused and after some adjournments because of the absence of accused the case was put up on 30-5-1966 when also the accused was absent The Excise Sub-Inspector on whose report the case was instituted was also absent on this date and it appears that a petition for time was filed on behalf of the Court Sub-Inspector of Excise on the ground that the execution report of warrant of arrest issued against the accused have not been received. But this petition was rejected and order was passed acquitting the accused under Section 247 of the Code of Criminal Procedure on the ground of the absence of the complainant. In the other case i.e. the case out of which Government Appeal No, 43 arises processes for appearance of the accused were issued after the transfer of the case to the file of the Munsif-Magistrate and after an adjournment on the ground of absence of the accused the case was put up on 26-6-66 (?) It appears that on this date neither the accused nor the Excise Sub-Inspector on whose report the case was instituted were present and an order was passed acquitting the accused under Section 247 of the Code of Criminal Procedure on the ground of absence of the complainant i.e. the Excise Sub-Inspector.

(2.) The main contention on behalf of the appellant is that the provisions of Section 247 of the Code of Criminal Procedure had no application to the case as the summons in this case had been issued not on the basis of any complaint but on the basis of the prosecution reports submitted by the Excise Sub-Inspector which are to be deemed to be police reports in view of the provisions of Section 78 of the Bihar and Orissa Excise Act. Under Sub-section (1) of Section 77 a Collector has been empowered to investigate any offence punishable under this Act within the limits of his jurisdiction without the orders of a Magistrate. Sub-section (2) of this Section provides that any other Excise Officer specially empowered in this behalf by the State Government in respect of all or any specified class of offence punishable under this Act may, without the order of a Magistrate, investigate any such offence which a Court having Jurisdiction over the local area to which such officer is appointed would have power to inquire into or try under the aforesaid provisions. Under Section 78 powers conferred upon police officers under different sections of the Code of Criminal Procedure have been vested in any Collector or any Excise Officer empowered under Sub-section (2) of Section 77 and Sub-section (3) of this section provides that for the purposes of Section 156 of the Code of Criminal Procedure the area to which an Excise Officer empowered under Sub-section (2) of Section 77 is appointed shall be deemed be a police-station, and such officer shall be deemed to be the officer in charge of such station. Sub-section (4) further provides for submission of reports by a Collector or by any Excise Officer empowered under Sub-section (2) of Section 77 after completion of investigation of the case to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offences on police-reports, and it further lays down that for the purpose of Section 190 of the Code of Criminal Procedure such a report shall be deemed to be a police report. In view of these provisions there cannot be any doubt that An Excise Officer who has been empowered under Sub-section (2) of Section 77 of the Excise Act has various powers f investigation of offences under this Act similar to those vested in a police officer empowered to investigate a case and the area in which he exercises his jurisdiction is deemed to be a police station and he is deemed to be an Officer incharge of such police station and the prosecution report which he submits after investigation of the case is to be deemed to be a police report under Section 190 of the Code of Criminal Procedure. It, therefore, follows that when the Sub-Divisional Magistrate takes cognizance of a case on the basis of such a report the cognizance is taken under Clause (b) of Sub-section (1) of Section 190 on the basis of a police report and not under Clause (a) of Sub-section (1) of the same section on the basis of a complaint. It follows, therefore, that when cognizance of a case under the Excise Act is taken by a Sub-Divisional Magistrate on the basis of a prosecution report submitted by an Excise Officer, who has been duly authorised under Sub-section (2) of Section 77 of the Excise Act, such a case cannot be held to be a complaint case and processes which are issued against the accused in such a case cannot be held to be issued on a complaint. Hence provisions of Section 247 of the Code of Criminal Procedure cannot have any application in such a case as this section is applicable only in cases in which summons is issued on complaint.

(3.) It was, however, contended before me that the Excise Sub-Inspectors who had submitted the prosecution reports in the two cases out of which the present appeals have arisen cannot be held to have been duly authorised under Sub-section (2) of Section 77 of the Excise Act and hence reports should be held as amounting to complaints I may mention in this connection that under notification No. 470F dated the 15th January, 1919, issued by the Lieutenant-Governor in Council all Inspectors of Excise and Sub-inspectors of Excise were specially empowered under Sub-section (2) of Section 77 of the Bihar and Orissa Excise Act to investigate any offence punishable under the Act. It was contended in this connection that such a general notification empowering all Excise Inspectors and Sub-Inspectors of Excise to exercise such power was not within the competence of the State Government as it practically amounts to legislation on the point and the proper course would have been to empower individual Excise Officers by name to exercise such powers. I am, however, quite unable to accept this contention. By the aforesaid notification this particular class is of Excise Officers only namely, the Officers belonging to the ranks of the Inspectors of Excise and Sub-Inspectors of Excise were empowered to excise the powers of investigation and there is nothing in the provisions of Sub-section (2) of Section 77 debarring the State Government from issuing such a general order nor is there anything in this section which requires that such powers should be vested on any Excise Officer by name. The terms of Sub-section (2) of Section 77 are wide enough to include power to pass such general orders vesting such powers to a particular classes of Excise Officers and there does not appear to be any substance in the contention that this amounts to exercise of any legislative power This contention is accordingly rejected