Public Prosecutor, High Court Of A.p., Hyderabad & Others v. B. Anjaneyulu & Others

UPENDRALAL WAGHRAY, J.

Our learned brother Ramanujulu Naidu, by the following order dt. 27-11-1985 has made this reference to a Division Bench :

"The following questions of far-reaching importance are raised in these cases :

1. Whether a Special Court, constituted under S. 12-A of the Essential Commodities Act, as amended in the year 1981, is empowered to exercise powers under S. 167 of the Code of Criminal Procedure in relation to the person forwarded to it under Cl. (b) of S. 12-AA of the In other words, what is the effect of Clause (c) read with Cl. (f) of S. 12-AA of the

2. Whether a Special Court can take cognizace of a case instituted before it where investigation into the said case is not completed within six months from the date of arrest of the accused involved in the case and charge-sheet is filed beyond six months from the date of arrest of the accused

It is brought to my notice that there are several instances where after arrest of accused persons in a number of cases booked under the Essential Commodities Act, charge-sheets are not filed by the Investigating Officers even after six months from the date of arrest of the accused persons involved therein and that guidance of this Court in that behalf is necessary.

I am, therefore, of the opinion that the above important questions should be decided by a Division Bench of this Court as early as possible.

Post the papers before Honourable the Chief Justice for constituting a Division Bench."

2. This controversy has arisen in connection with prosecution for offences under S. 7 of the Essential Commodities Act (hereinafter referred to as the). The crime was registered and the accused arrested but no charge-sheet was filed by the police for a period of over six months thereafter. It was contended on behalf of the accused that in view of S. 12-AA sub-section (1)(f) all offences under the shall be tried in a summary way and the provisions of Ss. 262 and 265 of the Code of Criminal Procedure (hereinafter called the Code) shall apply. S. 262 of the Code provides, that for the trials under that chapter (i.e. summary trials) the procedure for summons cases is to be followed. S. 167(5) of the Code provides that in any case triable by a Magistrate as a summons case, if the investigation is not concluded within a period of six months from the date of arrest of the accused, the Magistrate shall make an order stopping further investigation into the offence, unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuance of the investigation beyond the period of six months is necessary. It is common ground that no such request was made in these cases.

2A. Under S. 12-A of the, Special Courts presided over by an officer of the rank of a Sessions Judge, may be appointed, for trying the offences under the, and S. 12AA, among other things, provides for the powers and procedure before Special Courts. S. 12-AA(1)(c) provides that the Special Court may exercise, in relation to the person forwarded to it under Clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under S. 167 of the Code in relation to an accused person in such case who has been forwarded to him under that section.

3. Section 7 of theprovides the various penalties that may be imposed for offences under the. Sub-section (1)(a)(i) of S. 7 provides for imprisonment up to one year and also fine; while sub-section (1)(a)(ii) and sub-ss.(2) and (2-A) provide for a sentence of a minimum term of imprisonment of three months, but the imprisonment may extend up to 7 years and also fine. The applicability of the procedure including provisions of S. 167(5) of the Code to cases involving offences under Section 7(1)(a)(ii) etc., where punishment may extend to a sentence of over two years i.e. warrant-case according to S. 2(x) of the Code, is in controversy.

4. In Criminal Revision Case No. 527/85, the accused had raised such a plea before the Special Court at Hyderabad. By an order dt. 10-9-1985 in Cri.M.P. No. 288/85 the Special Court has ordered stopping of further investigation into the offence and also prohibiting the investigating officer from filing the charge-sheet against the accused in respect of the said report. The State has filed Criminal Revision Case against the said order. The other Criminal Miscellaneous petitions are filed by the accused in various cases pending before the Special Courts seeking a direction similar to the one given by the Special Court, Hyderabad, in Crl.M.P. No. 288/85 or for quashing of the proceedings. All the cases involve common questions and were heard together.

5. The learned Additional Pub Prosecutor has contended that the object the Amending Act 18 of 1981 is to amend the principal Act for a temporary period of five years enabling establishment of Special Courts and directing a summary procedure to be followed by the Special Courts to speed up disposal of cases and not to reduce the maximum sentence, particularly when Section 7 of theis not amended. According to her, S. 260(1) of the Code which provides for summary trial of the cases mentioned in it retains a distinction between summons cases and warrant cases and sub-section (2) gives a discretion to the Magistrate in any given case to revert back to the normal procedure i.e., procedure in a warrant case when offence is punishable with over two years imprisonment. It is, therefore, contended that sub-section (5) of S. 167, which speaks of summons cases, cannot be invoked in respect of cases where a punishment of over two years imprisonment is provided under S. 7, even if they could be tried by a summary procedure. The Special Court presided over by an officer of the rank of a Sessions Judge takes cognizance of the case without an order of committal by any Magistrate. In view of this it is urged that the cases to be tried by the Special Court, where S. 7 provides for seven years (imprisonment ) cannot be treated as summons case for sub-section (5) of S. 167 of the Code, as the very object of deterrent punishment for economic offences will be defeated. The learned Addl. Public Prosecutor has cited some cases in support of her contentions that S. 167(5) of the Code will not be attracted to offences punishable under S. 7 of the with over two years imprisonment. None of these cases deal the point now in controversy. In fact, both sides have stated that there is no direct decision on the point.

6. On the other hand, it is contended on behalf of the accused that by S. 12-AA(1)(f), all offences under the shall be tried in a summary way and the provisions of Ss. 262 to 265 of the Code shall as far as may be applied to such trial. The proviso to the said clause makes it clear that in such a summary trial it will be lawful for Special Court to pass a sentence of imprisonment for a period not exceeding two years. Clause (c) of the same sub-section states that the Special Court may exercise the same power which a Magistrate having jurisdiction to try may exercise under S. 167 of the Code in relation to a person in such case who has been forwarded to him under that section. It is contended that there is a mandatory provision to follow the summary procedure for all offences and because of this the maximum punishment has been fixed by the proviso as two years whereas in normal summary cases it would be three months. It is urged that by this mandatory provision the applicability of S. 260(2), Cr.P.C. is excluded and there is no discretion left with the Special Court to try any case otherwise than by applying a summary procedure. As S. 262 is made applicable, the procedure for summons cases alone has to be followed. This will make S. 167(5) applicable. It is also urged by the counsel for the accused that the report of the police under S. 173(2) is the culmination of the investigation and is inseparable from it. S. 173(2) is in Chapter XII under the Heading "Information to the police and their powers to investigate". They have also relied upon a decision of a learned single Judge of this court reported in Hussain v. State of A.P. (1985) 2 Andh LT 24. The learned Judge in that case has held that the report of the police under S. 173(2) which is popularly known as charge-sheet is a part of the investigation and unless the investigation is completed and charge-sheet also filed within a period of six months, the Magistrate cannot take cognizance of the case. The learned Judge has relied on the two decisions of the Supreme Court in H. N. Rishbud v. State of Delhi, AIR 1955 SC 196 [LQ/SC/1954/179] : (1955 Cri LJ 526) and (Abhinandan Jha v. Dinesh Misra, AIR 1968 SC 17 [LQ/SC/1967/214] : (1968 Cri LJ 97). We are not concerned with cases where on a request by the prosecution time for investigation is extended.

7. It is also submitted that once the Special Court is conferred with jurisdiction to try the cases without committal and directed to hold a summary trial, the fact that it is presided over by an officer of the rank of Sessions Judge will not make any difference to the procedure applicable. According to him this has to be viewed in the background of the amendment being for a temporary period of five years. The maximum sentence under S. 7 will therefore not apply to summary trial by Special Courts and at the same time the maximum sentence normally permissible in summary trial is increased to two years for offences under the.

8. It is useful to extract the relevant provisions of the and the Code applicable now :-

Section 12-AA of the.

"12-AA. Offences triable by Special Courts :- (1) Notwithstanding anything contained in the Code, -

(a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them, as may be specified in this behalf by the High Court :

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-sec. (2A) of S. 167 of the Code such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate.

Provided that where such Magistrate considers -

(i) when such person is forwarded to him as aforesaid, or

(ii) upon or at any time before the expiry of the period of detention authorised by him,

that the detention of such person is unnecessary, he may, if he is satisfied that the case falls under the proviso to section 8, order the release of such person on bail and if he is not so satisfied, he shall order such person to be forwarded to the Special Court having jurisdiction;

(c) the Special Court may, subject to the provisions of cl. (d) of this sub-section, exercise, in relation to the person forwarded to is under cl. (b), the same power which a Magistrate having jurisdiction to try a case may exercise under S. 167 of the Code in relation to an accused person in such case who has been forwarded to him under that section;

(d) save as aforesaid no person accused of or suspected of the commission of an offence under this Act shall be released on bail by any court other than a Special Court or the High Court;

Provided that a Special Court shall not release any such person on bail -

(i) without giving the prosecution an opportunity to oppose the application for such release unless the Special Court, for reasons to be recorded in writing, is of opinion that it is not practicable to give such opportunity; and

(ii) where the prosecution opposes the application, if the Special Court is satisfied that there appear reasonable grounds for believing that he has been guilty of the offence concerned;

Provided, further that the Special Court may direct that any such person may be released on bail if he is under the age of sixteen years or is a woman or is a sick or infirm person or if the Special Court is satisfied that it is just and proper so to do for any other special reason to record in writing

(e) a Special Court may, upon a perusal of police report of the fact constituting an offence under this Act take cognizance of that offence without the accused being committed to it for trial;

(f) all offences under this Act shall be tried in a summary way and the provisions of Ss. 262 to 265 (both inclusive) of the Code shall, as far as may be apply to such trial :

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Special Court to pass a sentence of imprisonment for a term not exceeding two years

(2) when trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code, be charged at the same trial;

Provided that such other offence is, under any other law for the time being in force, triable in a summary way;

Provided further that in the case of any conviction for such other offence in such trial, it shall not be lawful for the Special Court to pass a sentence of imprisonment for a term exceeding the term provided for conviction in a summary trial under such other law.

(3) A Special court may, with a view to obtain the evidence of any person suspected to have been directly or indirectly concerned in, or privy to, an offence under this Act, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof and any pardon so tendered shall, for the purposes of S. 308 of the Code, be deemed to have been tendered under S. 307 thereof.

(4) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under S. 439 of the Code and the High Court may exercise such powers including the power under cl. (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under S. 12-A".

Provisions of the Code of Criminal Procedure :

"262. Procedure for summary trials.

(1) In trials under this Chapter, the procedure specified in this Code for the trial of summons-cases shall be followed except as hereinafter mentioned.

(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter".

"167(5). If in any case triable by a Magistrate as a summon-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offences unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary".

"2(r) "Police report" means a report forwarded by a police officer to a Magistrate under sub-section (2) of S. 173";

"2(h) "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

9. The Essential Commodities Act (Act X of 1955) was passed by the Parliament to regulate and control supply of the Essential Commodities and was similar to the earlier pre-constitution law viz., the Essential Supplies (Temporary Powers) Act, 1946. The Amending Act 47 of 1964 enabled the summary trial of offences under the. Later, by several amending Acts provisions for confiscation of the seized goods by the Executive authorities i.e., other than the Courts were made viz., S. 6A. This power of confiscation could be exercised irrespective of the fact whether a prosecution is launched or not viz., S. 6-D. However, by S. 6-C(2) when prosecution is launched and it ends in an acquittal the person concerned is entitled to the return of the goods confiscated under S. 6-A or their value. The Amending Act 18 of the 1981 has made certain amendments for a temporary period of five years to expedite disposal of cases. The Special Courts which may be constituted under S. 12A of the are given exclusive jurisdiction to try the cases for offences under the. At the same time, S. 12-AA(1)(f) extracted above directs that all offences shall be tried in a summary way and the provisions of Ss. 262 to 265 of the Code shall, as far as may be apply to such trial. By the proviso sentence up to two years may be imposed in a summary trial by the Special Court for the offence under the. While under S. 262 of the Code, a sentence up to a period of three months only may be imposed in a summary trial of the offences by the Magistrates. In view of sub-section (1)(f) of S. 12-AA, the cases shall be tried by the summary procedure and there is no option to apply any other procedure. To this extent the discretion given under S. 260(2) of the Code to revert back to a warrant procedure is superseded. In view of the scheme of the Amending Act the imposing of sentence of over two years under S. 7 is not permissible where Special Courts are established, as they have to follow summary procedure for the period of the Temporary Amendment. For both reasons viz., because under S. 262 of the Code, a summary trial is to be by a summons case procedure, and also because the temporary Act provides for a maximum period of two years sentence only where cases are tried by the Special Courts, the procedure for warrant cases will not apply.

10. By S. 10-A of the, the offences are made cognizable and non-bailable. By S. 11, no Court can take cognizance of an offence under the, except on a report in writing of a public servant. S. 12-AA(1)(a) confers exclusive jurisdiction on the Special Court to try the offences under the. An accused if arrested is required to be produced within 24 hours before a Magistrate by Art. 22(2) of the Constitution of India and S. 57 of the Code. But, as the exclusive jurisdiction to try the cases is conferred on the Special Court, the Magistrate has to forward the accused to the Special Court. S. 12-AA(1)(b) provides for the action to be taken by a Magistrate in cases where a person accused of an offence under the is brought to him. S. 12-AA(1)(c) provides for the action to be taken by the Special Court in cases where an accused is forwarded to it under S. 12-AA(1)(b).

11. To sum up, by the Amending Act, which is to be in force for a period of five years, a State Government may constitute Special Courts and, if they are constituted, the trial of offences under the is to be exclusively by the Special Courts and they shall apply the summary procedure and may impose a sentence up to a maximum of two years only. They are to be presided over by an officer of the rank of Sessions Judge, will have a much larger territorial jurisdiction than a Magistrate and take cognizance without an order of committal. The procedure for summons cases will be applicable and the speaks of the application of S. 167 of the Code.

12. The persent Code of 1973 is a consolidating and amending Act made after the Constitution. Chapter XII headed "Information to the police and their powers to investigate" comprises of Ss. 154 to 176. In the new Code apart from additions of new sections, there are several modifications of the provisions which were existing in the old Code. S. 167 contains certain modifications and also additions like sub-section (5). The principle underlying the Amendments to S. 167 is a wholesome one, that is, to avoid prolonged detention of accused during investigation. By sub-section (5) in summons cases (i.e. where punishment for the alleged offence does not exceed two years) the Magistrate is now given the power to stop investigation where the investigation is not completed within six months of the arrest of accused or permission is not taken to continue it beyond six months for the reasons mentioned in the sub-section. Having regard to the provisions of the, as discussed earlier, S. 167(5) will apply to the Special Court which has to hold summary trial for offences under the.

13. The further question will be, whether the Special Court (or Magistrate in other cases) can in addition to the direction of stopping investigation, also direct that a charge-sheet that is a report by the police under S. 173(2) shall not be made in such cases Under the old Code, there was no separate definition of a Police Report. Under the new Code, in addition to definition for investigation in S. 2(h), a separate definition for police Report is given by S. 2(r). This coupled with the newly introduced sub-section (5) of S. 167 brings out the distinction between investigation by the police and the police report on which a court is to take cognizance. The report cannot now be said to be an integral part of investigation. The introduction of S. 167(5) in the Code, cannot have the effect of invalidating the investigation done within the period of six months or enabling the Court to stopping the filing of police report under S. 173(2). If the investigation done during the period of six months discloses an offence, a police report may be founded on it and the Court can take cognizance of the same. The Supreme Court had occasion to consider the question of delays in completing investigation or filing of charge-sheet as required by S. 167(5) of the Code in the context of a speedy trial to satisfy the requirement of the right to liberty in the well-known cases of Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1377 [LQ/SC/1979/243] at p. 1381 : (1979 Cri LJ 1052 at P. 1056). In one of these cases; the observations in para 8 (page 1381) are appropriate on this aspect, which read thus;

"8. We had given direction by our order dated 26th February 1979 that the State Government should enquire into cases where the offences charged against undertrial prisoners are triable as summons cases, for the purpose of ascertaining whether there has been compliance with the provision of S. 167, sub-section (5) of the Code of Criminal Procedure, it is clear from this provision that if in any case triable by a Magistrate as a summons case the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate must make an order stopping further investigation into the offence, unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice, the continuation of the investigation beyond the period of six months is necessary. With a view to securing compliance with this provision we directed that if, in a case triable by a Magistrate as a summons case, it is found that investigation has been going on for a period of more than six months without satisfying the Magistrate that, for special reasons and in the interest of justice, the continuation of the investigation beyond the period of six months is necessary, the State Government will release the undertrial prisoner, unless the necessary orders of the Magistrate are obtained within a period of one month. The reason for giving this direction was that in such a case the Magistrate is bound to make an order stopping further investigation and in that event, only two courses would be open : either the police must immediately proceed to file a charge-sheet, if the investigation conducted till then warrants such a course, or if no case for proceeding against the undertrial prisoner is disclosed by the investigation, the undertrial prisoner must be released forthwith from detention ........."

14. The Supreme Court had directed that a decision should be taken as to whether a charge-sheet should be filed or not within a period of one month. This would also indicate that the charge-sheet is not treated as an integral part of investigation and could be filed even after six months. This aspect is also referred to by the Calcutta High Court in the case reported in Pappa Rao v. State 1985 Cri LJ 546. S. 173(1) of the Code directs that every investigation under that Chapter shall be completed without unnecessary delay. Section 167(5) puts an outer limit of six months for completing the investigation in cases triable by a Magistrate as summons case, subject to the conditions mentioned in it. S. 173(2) requires that as soon as the investigation is completed, the report or charge-sheet is to be filed. The newly introduced S. 173(8) preserves the right of the investigating agency to place before the Court, if any further material is obtained during any investigation subsequent to filing of charge-sheet. S. 468 provides for the bar on the power to take cognizance of an offence after the expiry of the period of limitation mentioned in it. A reading of these provisions would, therefore, lead to the conclusion that in cases to which S. 167(5) applies, the investigation shall be completed within six months, unless the period is extended as mentioned in it, and the report under S. 173(2) is filed as soon as the investigation is completed, but the investigation done within the period of six months does not become invalid. As soon as possible in S. 173(2) must be a reasonable period, say one month, after completing the investigation as was observed by the Supreme Court in Hussainara Khatoon v. State of Bihar (1979 Cri LJ 1052) (Supra).

15. It is stated by the counsel for the accused that in the cases under the Essential Commodities Act wherever goods are also seized, the authorities are not keen on the prosecution in courts by filing charge-sheets, as, in view of S. 6-C(2) an acquittal by court will require the return of the goods or their value confiscated under S. 6-A. This may be correct. The authorities therefore should make up their mind as early as possible after completion of investigation about filing the charge-sheet in court. If the investigation is not likely to be completed within six months, they may move the court under S. 167(5). It will not be proper to keep the accused under detention (as the offence is non-bailable) merely under the pretext of pending investigation. This will be contrary to the object of amendments to S. 167, of the Code.

16. The Special Court may take this factor also into consideration for deciding as to whether detention of the accused is to be continued or he should be released on bail. But the Magistrate or Special Court cannot give a direction to the prosecution not to file a charge-sheet merely because the report is not filed in six months.

17. The judgment of our learned brother reported in Hussain v. State of A.P. (1985-2 Andh LT 24) (supra), holding police Report to be part of investigation, is based upon the two decisions of the Supreme Court under the old Code. After the new Code of 1973, the ratio of the said Supreme Court cases will not apply. The learned Judge in that case has also referred to a decision of the Calcutta High Court in Ram Kumar v. State, 1981 Crl LJ 1288 for the proposition that an application for extension of time for investigation under S. 167(5) must be filed before the expiry of six months and taken the same view. As the said controversy is not before us, we express no opinion on that aspect. The view of the learned Single Judge that the Police report under S. 173(2) is an integral part of investigation is overruled. The Magistrate or Special Court cannot give a direction to the prosecution not to file a charge-sheet merely on the ground that six months have expired after arrest of the accused. However, it is always open to the accused to move the High court for quashing of any proceedings which are unduly delayed and amount to violation of Art. 21 of the Constitution or amount to an abuse of the process of court, or when the investigation does not disclose any offence by him.

18. Our answers to the two questions, which have been referred are : (1) A Special Court constituted under S. 12-A of the Essential Commodities Act (as amended in 1981) is empowered to exercise powers under S. 167(5) of the Cri.P.C. in relation to the person forwarded to it under cl. (b), sub-section (1) of S. 12-AA of the, as contemplated cl. (c) of that sub-section. Cl. (f) makes it obligatory for the special Court to try cases summarily and hence by virtue of S. 262 of the Code of Criminal Procedure, the procedure for summons cases will apply for the trial of the offences under the by it.

(2) The Special Court can take cognizance of a police Report under S. 173(2) of the Code based on the investigation done within the period permitted by S. 167(5) of the Code, even if the report is made beyond six months. However, in view of S. 167(5) of the Code the Court shall give a direction to stop further investigation after the expiry of six months of the arrest of the accused, unless the period for investigation is extended by it, as contemplated by that sub-section.

Cri.M.P. Nos. 3400, 3436, 3438, 3486, 3637, 3696, 3709, 3716 and 3815/85 :

19. In view of the fact that a period of six months has elapsed after the arrest of the accused, there shall be a direction that the investigation in these cases shall be stopped. So far as the request for a direction that the investigating officer shall not file a charge sheet is concerned, we do not consider that it can be granted. The petitions are, therefore allowed in part to the extent indicated above.

Crl. Revision Case No. 527/1985 :

20. In view of the answers given by us to the two questions referred to in this case, the direction of the Special Judge for trial of cases under Essential Commodities Act dated 10th September 1985, so far as it relates to the stopping of the further investigation in terms of S. 167(5) of the Code of Criminal Procedure is upheld. The other direction contained in the impugned order viz, prohibiting the Investigating Officer from filing the charge sheet against the petitioner is set aside. Crl.RC. is allowed in part.

Order accordingly.