Pravin Chandra Mody vs State Of Andhra Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 49 of 1964

Decision Date: 15 September, 1964

Coram: M. Hidayatullah, J.R. Mudholkar, M. Subbarao

In this case the Supreme Court considered an appeal filed by Pravin Chandra Mody against the State of Andhra Pradesh. The judgment was delivered on 15 September 1964 by a bench composed of Justice M. Hidayatullah and Justice J.R. Mudholkar. The report of the case was authored by Justice M. Hidayatullah. The citation for the decision is recorded as 1965 AIR 1185 and 1965 SCR (1) 269, and the judgment is referenced in several citator entries, including R 1969 SC 355, R 1979 SC 339, R 1980 SC 506, and F 1987 SC 1167. The matter arose under the Essential Commodities Act (10 of 1955), specifically section 7, which defines the offence, and also involved a report required under section 11 of that Act. The principal legal questions were whether the report satisfied the requirement of a police report under section 251‑A and section 190(1)(b) of the Code of Criminal Procedure (5 of 1898), and whether the trial should proceed under section 251‑A or under section 252 of the Code.

The appellant was being tried before a Magistrate for two offences: one under section 420 of the Indian Penal Code, which deals with cheating, and the other under section 7 of the Essential Commodities Act. Both offences arose from the same set of facts and were investigated together under Chapter XIV of the Code of Criminal Procedure. After completing the investigation, a police officer filed a charge‑sheet against the appellant under section 173 of the Code in respect of the cheating charge. The same document was intended to serve as the written report of a public servant required by section 11 of the Essential Commodities Act.

At the trial, the appellant objected that because the police had filed a report under section 11 of the Essential Commodities Act, the offence under section 7 could not be tried under section 251‑A of the Code, but should instead be tried under section 252 of the Code of Criminal Procedure. The Magistrate rejected this objection, and the decision was subsequently upheld on revision by the Sessions Judge and by the High Court of Andhra Pradesh. The appellant then appealed to the Supreme Court, contending that for a case to fall under section 251‑A, as well as under element (b) of section 190(1), the report must be a police report filed under section 173 after an investigation conducted pursuant to Chapter XIV. The appellant argued that the report in his case, being filed under section 11 of the Essential Commodities Act and not under section 173, could only be treated as a complaint under element (a) of section 190(1), and therefore the appropriate procedure should be that provided by section 252.

The Court held that cases falling within elements (a) and (c) of section 190(1) are triable according to the procedure prescribed in section 252, whereas cases falling within element (b) of that section are triable under section 251‑A of the Code of Criminal Procedure. Because the report in the present case was made by a police officer, it could not be taken cognizance of under elements (a) and (c), which expressly exclude reports or information given by a police officer. Consequently, the offences mentioned in such a police report could not be tried under section 252, and the appropriate procedural provision was section 251‑A.

In the present matter the Court observed that a document filed under section 11 of the Essential Commodities Act does not constitute a charge‑sheet. However, a document prepared under section 173 of the Code of Criminal Procedure fulfils the requirements of section 11 because the police officer who prepares it is himself a public servant. The report that concerned the offence charged under section 7 of the Essential Commodities Act was therefore lawfully incorporated in the charge‑sheet filed under section 173, since both the cheating offence and the offence under section 7 had been investigated pursuant to the provisions of Chapter XIV of the Code of Criminal Procedure. Consequently the case was deemed to have been instituted on a police report filed under section 173, and the procedural regime of section 251‑A was correctly applied. The Court also referred to the authorities in Bhagwati Saran v. State of U.P. (1961) 3 SCC 563, Rain Krishna Dalmia v. State (AIR 1958 Punjab 172) and Premchand Khetry v. State (AIR 1958 Cal 213) in support of its reasoning.

The judgment was delivered in a criminal appellate jurisdiction in Criminal Appeal No. 49 of 1964, which had been permitted by special leave after the order dated 3 September 1963 of the Andhra Pradesh High Court in Criminal Revision Case No. 132 of 1963 and Criminal Revision Petition No. 118 of 1963. Counsel for the appellant and counsel for the respondent appeared before Justice Hidayatullah, who authored the judgment. The appellant was charged with offences under section 420 of the Indian Penal Code and under section 7 of the Essential Commodities Act, 1955 for alleged violations of clauses (4) and (5) of the Iron and Steel Control Order. The prosecution was initiated by the Inspector of Police, Crime Branch, C.I.D., Hyderabad, who filed a charge‑sheet under section 173 of the Code of Criminal Procedure for the cheating allegation, intending that the same document also serve as the written report required by section 11 of the Essential Commodities Act. The City Magistrate of Secunderabad thereafter framed a charge under section 251A(3) of the Code of Criminal Procedure covering both the cheating offence and the offence under section 7. The appellant raised two preliminary objections. The first objection contended that, because the commodity in question had been obtained and disposed of in Bombay, the Secunderabad Court lacked jurisdiction to try him; the Court noted that this objection had not been raised before it and therefore would not be revisited. The second objection argued that, since the police had lodged a report under section 11 of the Essential Commodities Act, the trial for the offence under section 7 should proceed under section 252 rather than under section 251A, and the appellant consequently prayed for the quashing of the charge. The Court rejected this second objection. Following the rejection, the appellant sought relief by filing a revision before the Sessions Judge, who declined to interfere. A subsequent revision was filed in the High Court of Andhra Pradesh, which dismissed the appeal; that dismissal is now the subject of the present appeal. Regarding the trial of the alleged offence under section 420 of the Indian Penal Code, the Court observed that there was no objection to its trial under the appropriate procedural provisions.

The Court noted that Section 251A of the Code of Criminal Procedure sets out the procedure to be followed in cases that are instituted on a police report. Under that provision the Magistrate must, at the commencement of the trial, be satisfied that the documents referred to in Section 173 have been furnished to the accused, and if they have not been furnished the Magistrate must cause them to be furnished. After receiving the documents the Magistrate must consider all of them and, after making any examination of the accused that he thinks necessary and after giving both the prosecution and the accused an opportunity to be heard, must decide whether a charge should be framed against the accused. If the Magistrate concludes that the charge is groundless he must discharge the accused. Conversely, if the Magistrate is of the opinion that there are grounds for presuming that the accused has committed an offence triable under this Chapter, that the Magistrate is competent to try, and that the offence could be adequately punished by him, then he must frame a charge in writing against the accused, explain the charge to him, record his plea and proceed according to that plea. Section 252 of the Code of Criminal Procedure states: “252(1) In any case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution, provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court. (2) The Magistrate shall ascertain, from the complaint or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary.” Section 253 provides that after taking all the evidence referred to in Section 252 and after making any examination of the accused that he thinks necessary, the Magistrate may discharge the accused if he finds that no case against the accused has been made out which, if unrebutted, would warrant conviction. If, however, the Magistrate finds that there are grounds for presuming that the accused has committed an offence which the Magistrate is competent to try and which could be adequately punished by him, he must frame a charge, record a plea, and if the accused does not plead guilty, the Magistrate must give him time to specify which prosecution witnesses he wishes to cross‑examine; if the accused wishes to do so, the witnesses are recalled and may be cross‑examined.

The appellant contended that the expression “police report” in Section 251A should be interpreted to refer specifically to the report mentioned in Section 173, that is, the report that the police officer prepares for the Magistrate after investigating a cognizable offence. According to this view, the procedural regime of Section 251A would apply only when the case is commenced on the basis of such a report and not when it is instituted on a complaint or any other form of information. The appellant therefore argued that the trial of the offence alleged against him could not be conducted under Section 251A because the proceedings had not been instituted on a police report within the meaning of Section 173, and that the appropriate procedure should be that laid down in Section 252.

In this case, the Court examined the meaning of a “police report” under section 251A of the Code of Criminal Procedure. Section 251A referred to the report mentioned in section 173, which a police officer prepared for a Magistrate after investigating offences under Chapter XIV. Such investigations concerned cognizable offences, because non‑cognizable offences could be investigated by police only after a competent Magistrate authorised the investigation. The Court noted that section 190 provided three ways in which a Magistrate could take cognizance of an offence. The first way was upon receiving a complaint of facts constituting an offence. The second way was upon a written report of such facts made by any police officer. The third way was upon information received from any person other than a police officer, or upon the Magistrate’s own knowledge or suspicion that the offence had been committed. The appellant argued that the three‑fold distinction in section 190 meant that the “police report” mentioned in clause (b) corresponded only to the charge‑sheet prepared by a police officer under section 173 of the Code. Consequently, the report made by the police officer under section 12 of the Essential Commodities Act, 1955 was not a charge‑sheet under section 173 and therefore should be treated as a “complaint of facts” within clause (a) of section 190. On that basis, the appellant contended that the offence under section 420 of the Indian Penal Code fell within the procedure prescribed by section 251A, whereas the offence under section 7 of the Essential Commodities Act fell within the procedure prescribed by section 252 of the Code of Criminal Procedure. The appellant further submitted that the two charges should either be separated or both tried under section 252, because section 251A did not allow a second cross‑examination, which section 252 did provide, and the appellant would suffer prejudice in the trial of the offence under section 7 of the Essential Commodities Act. The Court held that the meaning attributed by the appellant to “police report” was incorrect. Section 190 distinguished among the persons who could initiate criminal prosecution. Under the three clauses of section 190, prosecution could be commenced (i) by a police officer through a written report, (ii) on information received from a person other than a police officer or on the Magistrate’s own knowledge or suspicion, or (iii) on receipt of a complaint of facts. If the report in the present case fell within category (i), the procedure of section 251A applied; if it fell within categories (ii) or (iii), the procedure of section 252 applied. Accordingly, the Court needed to determine whether the police officer’s written report in this case could be described as a “complaint of facts” or as “information received from any person other than a police officer”. The Court observed that the latter description was untenable because the information originated from a police officer. It further noted that the definition of “complaint” in the Code excluded a police officer’s report. Therefore, the Court concluded that section 252 could apply only to prosecutions instituted on complaints or on information from persons other than police officers, and that the present prosecution, having been instituted on a written report by a police officer, fell within the ambit of section 251A.

In the present matter the Court examined whether a written submission made by a police officer could be characterized either as a “complaint of facts” or as “information received from any person other than a police officer.” The Court observed that the latter description could not apply, since the information originated from a police officer himself. The term “complaint” is defined in the Code of Criminal Procedure as an allegation, either oral or written, presented to a Magistrate with the intention that the Magistrate take action under the Code against a person, known or unknown, who is alleged to have committed an offence; importantly, this definition expressly excludes a report made by a police officer, as provided in section 4(1)(h) of the Code. Consequently, section 252 of the Criminal Procedure Code is applicable only to proceedings that are instituted on the basis of complaints that are not police reports, or on information received from persons other than police officers. The prosecution in the present case, however, was commenced on the basis of a written report submitted by a police officer.

Section 11 of the Essential Commodities Act, 1955 states that no court shall take cognizance of any offence punishable under that Act unless it receives a written report of the facts constituting the offence from a person who is a public servant as defined in section 21 of the Indian Penal Code. In the decision of Bhagwati Saran v. State of U.P., the Supreme Court explained the character of a report under section 11 of the Essential Supplies (Temporary Powers) Act, 1946, a provision worded in the same manner. The Court held that the purpose of a report under section 11 is not to serve as a charge‑sheet against the accused; rather, its purpose is to prevent private individuals, such as rival traders or members of the public, from initiating prosecutions and to require that, before a court may take cognizance, the complaint must originate from a public servant. The Court noted that a police officer qualifies as a public servant and that this fact was not contested. Accordingly, the requirements of section 11 were satisfied, although the provision does not transform a police officer’s report into a charge‑sheet.

The petitioners argued that the report filed under section 11 could not be treated as a report under section 173 of the Code, but should be regarded merely as a complaint under section 190(1)(a). The Court observed that the police officer had been investigating, under section 156(1) of the Criminal Procedure Code, an offence punishable under section 420 of the Indian Penal Code. That investigation was based on the same factual matrix as the alleged offence under section 7 of the Essential Commodities Act. The officer pursued the latter offence together with the former and incorporated both in the charge‑sheet that was eventually presented. Section 156(2) provides that when a police officer conducts an enquiry into an offence under section 156(1), his actions cannot be questioned on the ground that he lacked authority to investigate. Hence, the Court concluded that the police officer’s written report fell within the scope of a public‑servant report under section 11 and did not require recharacterization as a complaint under section 190(1)(a).

In this case, the Court observed that the investigation covered both offences because they were based on the same factual circumstances. Although the appellant did not argue that the offence under the Essential Commodities Act was non‑cognizable, the Court held that even if that offence were non‑cognizable, the police officer remained authorized to place it in the charge‑sheet filed under section 173 in connection with a cognizable offence. The Court relied on the decision in Ram Krishna Dalmia v. State, where Justice Falshaw explained that the provisions of section 155(1) of the Code of Criminal Procedure applied when the information supplied to the police concerned solely a non‑cognizable offence. He further stated that when the information disclosed both a cognizable and a non‑cognizable offence, the police officer was not barred from investigating the non‑cognizable offence that arose from the same facts, and could include that offence in the charge‑sheet presented for the cognizable offence. The Court fully endorsed this view, noting that both offences could be investigated together under Chapter XIV of the Code whether each was cognizable or whether one of them was non‑cognizable. The Court also addressed the argument advanced on the basis of Premchand Khetry v. State, which claimed that a prosecution under section 251A of the Code could commence only after a report under section 173, and that a police officer’s report could not be treated as a charge‑sheet for the purpose of section 173. The Court referred to the earlier judgment of the Calcutta High Court, which had examined the meaning of “police report” in section 190(1)(b) and concluded that those words were limited to a charge‑sheet under section 173. The Court reiterated that when the law required a written report by a public servant, the requirement was satisfied when the report was filed by a public servant who also happened to be a police officer. Moreover, even in situations where a police officer required magistrate permission to investigate a non‑cognizable offence, nothing in the Code prevented the officer from investigating that non‑cognizable offence together with a cognizable offence arising from the same facts. Finally, the Court discussed the Calcutta case involving section 20G of the Opium Act, as amended in Bengal, which described that a written report by an officer of the Excise, Police or Customs Department would be treated as if it were a report made by a police officer under clause (b) of section 190(1) of the 1898 Code of Criminal Procedure. The Divisional Bench of the Calcutta High Court had held that this provision created a legal fiction whereby the report of an Excise or Customs officer was to be regarded as a police report, but only for the purpose of section 190(1)(b) and not as a charge‑sheet under section 173. The Court noted that the fiction could not change the applicability of section 251A, because if the report was considered made under section 190(1)(b), it attracted the provisions of section 251A, and could not be classified as a complaint under section 190(1)(a) or as a report under section 190(1)(c).

In that case, the Court observed that the provision treated the report as a police officer’s report solely for the purpose of section 190(1)(b), and that this treatment did not convert the report into a charge‑sheet under section 173 of the Code. The Court further noted that section 251A of the Criminal Procedure Code was not applicable because that section contemplated a report made under section 173. The Court then invited counsel to explain what legislative purpose could be served if the fiction did not make the report a report under section 173; counsel could suggest none, and the Court could not discern any other purpose. In the Court’s view, the position was clear: if such reports are deemed to be made under section 190(1)(b), they must attract the provisions of section 251A, because giving full effect to the fiction prevents the reports from being classified as “complaints” under section 190(1)(a) or as falling within section 190(1)(c). Moreover, the Divisional Bench had held that section 251A applies to the trial of a case that is initiated on a police report under section 173 where the investigation is one to which section 173 may be applied, and the Court found that both conditions were satisfied in the present case. Accordingly, the High Court was correct in refusing to interfere with the trial on revision, and the appeal was dismissed. The appellant had managed to cause a considerable delay in the trial. Consequently, the Court directed that the trial should proceed on a day‑to‑day basis until the matter is disposed of in accordance with law, and the appeal was dismissed.