The challenge in this revision petition is the order of discharge passed by the learned Magistrate in a case in which cognizance was taken against the accused/respondents 2 and 3 for offence allegedly committed by them under section 63 of Abkari Act. The complaint was, in fact, filed against the accused/respondents 2 and 3 alleging commission of offences under sections 55, 56 and 58 of Abkari Act, but cognizance was taken by the Magistrate only under section 63 of Abkari Act.
2. It is stated that Excise Inspector, Preventive Officer and Asst. Excise Commissioner were examined and it was thereafter the cognizance was taken against the Crl.R.P. No.395/2001 -2- accused for offence under section 63 of Abkari Act. It is a case where cognizance was taken based on a private complaint filed by the petitioner herein. Since cognizance was bad in law the learned Magistrate (the successor Magistrate) dropped the proceedings and released the accused.
3. The complainant, who is the revision petitioner, contends that the order passed by the learned Magistrate is unsustainable. The accused could have been either acquitted or convicted, but the learned Magistrate was not justified in stopping the proceedings and releasing the accused. The view taken by the learned Magistrate that cognizance cannot be taken otherwise than on the report of the Abkari Officer is incorrect, it is contended. According to the petitioner, Section 39 of the Abkari Act empowers a private person also to approach the Magistrate complaining of commission of Abkari offences and as such the view taken Crl.R.P. No.395/2001 -3- by the learned Magistrate, that cognizance cannot be taken based on a private complaint, is illegal and unsustainable.
4. Section 3(2) of Abkari Act defines 'Abkari Officer' thus:
"The Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Sections 4 or 5."
5. Under section 4(d) of the Act, the Government may, by notification in the Gazette, appoint officers to perform the acts and duties mentioned in Sections 40 to 53 of the Abkari Act.
6. Section 5(1) of the Abkari Act says that the Government may, from time to time, make rules prescribing the powers and duties under this Act to be exercised and performed by Abkari Officers of the several classes. Crl.R.P. No.395/2001 -4-
7. Section 40 of the Abkari Act deals with the procedure on arrest and seizure of the contraband articles. Section 41 deals with the disposal of the persons arrested. Section 41A(1)(a) makes it clear that notwithstanding anything contained in the Code of Criminal Procedure, every offence punishable under the Abkari Act shall be cognizable.
8. Section 2(c) of the Code of Criminal Procedure defines 'cognizable offence' as:
"an offence for which, and 'cognizable case' means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant"
In the case of a cognizable offence, the Police Officer can conduct investigation irrespective of any order of the court in relation to such cognizable offence and the court Crl.R.P. No.395/2001 -5- may have no control over the investigation or over the action of the police in holding such investigation. The Magistrate cannot issue direction to the Police to conduct the investigation of the case in a particular way since the matter is completely within the domain of the investigating officer.
9. The Government has notified the officers of the Police, Revenue, Abkari and other departments as Abkari Officers as per section 4 of the Abkari Act. Section 34 of the Abkari Act empowers the Abkari Officer to arrest any person found committing offence under the Act, following the procedure prescribed under the Abkari Act and the provisions of the Code of Criminal Procedure. Section 36 deals with the procedure to be followed in the conduct of the searches.
Crl.R.P. No.395/2001 -6-
10. Section 30 of the Abkari Act empowers any Magistrate, upon information obtained and after such enquiry as he thinks necessary, has reason to believe that an offence under the Abkari Act has been committed to issue a warrant for the search for any liquor, intoxicating drug, materials, utensils etc., in respect of which the alleged offence has been committed. It is also stated that before issuing such warrant, the Magistrate shall examine the informant on oath or affirmation and the examination shall be reduced into writing in a summary manner and be signed by the informant and also by the Magistrate. Such a power has been given to the Commissioner of Excise also as per the said section. Therefore, it can be argued that during the stage of investigation also, the Magistrate can issue such orders or directions and therefore, it cannot be said that the complaint, alleging any of the offences under the Abkari Act, cannot be entertained at all.
Crl.R.P. No.395/2001 -7-
11. So far as the case on hand is concerned, the main provision which is germane for consideration is section 50 of the Abkari Act which reads thus:
"(1) Every investigation into the offence under this Act shall be completed without necessary delay.
(2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub section (2) of section 173 of Code of Criminal Procedure, 1973 (Central Act 2 of 1974)"
12. Prior to 03.06.1997, i.e. before the amendment, the reports filed by the Excise Inspectors were to be treated as complaints. After the amendment, the report filed by the Abkari Officer should be deemed to be a report under section 173(2) of Cr.P.C. Therefore, the procedure to be Crl.R.P. No.395/2001 -8- followed in a case instituted upon a police report is to be followed once a report is filed by the Abkari Officer under section 50(2) of the Act, and the procedure prescribed under section 50A of the Abkari Act and sections 207 and 209 of Cr.P.C. has to be followed.
13. The crucial question for consideration is whether a complaint filed by a private party can be entertained by the Magistrate. It is argued by the learned counsel for the petitioner that since the offence under the Abkari Act is a cognizable offence, the Magistrate can certainly forward such a complaint for investigation under section 156(3) of Cr.P.C. If that be so, the contention that no private complaint can be entertained by the Magistrate is unacceptable, the learned counsel further submits. But, this submission is resisted by the learned counsel for the respondent pointing out that the Magistrate can take Crl.R.P. No.395/2001 -9- cognizance of the offence only on a report filed under section 173(2) of Cr.P.C., in view of the interdiction contained in section 50(2) of Abkari Act and so a Magistrate cannot take cognizance of the offence on a complaint.
14. Generally, the Magistrate would take cognizance of an offence upon receiving a complaint of the facts which constitutes such offence or upon a police report of such facts. But, in view of the embargo contained in section 50 (2) of Abkari Act, cognizance cannot be taken upon receiving a complaint of facts which constitute such offence.
15. 'Complaint' is defined in section 2(d) of Cr.P.C. as:
"any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.
Crl.R.P. No.395/2001 -10- Explanation: A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant; "
16. Section 4(2) of Cr.P.C. says:
"All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
17. Section 5 of Cr.P.C. saves any special law or special jurisdiction or power and declares that they may remain unaffected by the Code unless there is any specific Crl.R.P. No.395/2001 -11- provision to the contrary. Therefore, since there is a special provision in Section 50(2) of the Abkari Act which deals with taking of cognizance and since section 50A of the Abkari Act deals with the procedure with regard to the conduct of enquiry for the purpose of committing the case to the Court of Sessions etc in relation to the offences under the Abkari Act, the special procedure in that Act has to be followed. The Magistrate cannot take cognizance of the offence based on the private complaint following the procedure prescribed under section 200 and the succeeding provisions under Chapter XV of Cr.P.C. But when a complaint is filed, the Magistrate can forward the complaint to the Police under section 156(3) of Cr.P.C., but a complainant cannot insist that the complaint so filed by him has to be forwarded to the Police under section 156(3) of Cr.P.C. That is only an enabling provision so far as the Magistrate is concerned. There is no provision which mandates or compels the Crl.R.P. No.395/2001 -12- Magistrate to forward such a complaint to the police under section 156(3) of Cr.P.C. It was held by this Court in Sreenivasan v. Nair - 2005(2) KLT 396 thus:
"When a complaint is received by the Magistrate, he has two options. He may either apply his mind for the purpose of proceeding under section 200 and the succeeding sections in Chapter XV of the Code of Criminal Procedure. He may instead of proceeding under Chapter XV, order investigation by the police under section 156(3) of Cr.P.C. When the Magistrate decides to proceed under section 200, he is said to have taken cognizance of the offence. If he refers the case to police, he cannot be said to have taken cognizance of any offence.
If the complaint is referred to Station House Officer under section 156(3), the police has to register a case and investigate the same. The discretion is Crl.R.P. No.395/2001 -13- that of the Magistrate. There is no provision of law which compels a Magistrate to refer the matter to the police. When a person files a complaint, the discretion is that of the Magistrate. He may either take cognizance or refer the matter to the police. The complainant has no legal right or privilege to insist that the Magistrate shall not take cognizance and without taking cognizance, refer the matter to the police."
18. There is yet another aspect. Suppose the complaint filed before the Magistrate is referred to Police for investigation under section 156(3) of Cr.P.C. and after conducting investigation a negative report is filed; to mean that no offence under Abkari Act is made out against persons named in the complaint, the complainant cannot adduce evidence so as to enable the Magistrate to take Crl.R.P. No.395/2001 -14- cognizance of the offence, since the Magistrate can take cognizance of the offence based only on a report filed under section 173(2) of Cr.P.C. In other words, no enquiry, contemplated under section 202 of Cr.P.C., could be followed in such a case. If it is legally possible for the court to conduct enquiry under section 202 of Cr.P.C., then, in spite of the fact that a report filed by the police officer was a negative one, still it may be possible for the Magistrate to conduct enquiry under section 202 of Cr.P.C. and then take cognizance of the offence. But since there is a total embargo against taking cognizance of an offence, otherwise than on a report under section 173(2) of Cr.P.C., it would be a futile exercise to entertain a complaint filed by a private person. Of course, it can be said that if such a complaint is filed, the Magistrate can forward it to the Police Officer (who satisfies the definition of an Abkari Officer within the meaning of section 4 of the Abkari Act) to conduct Crl.R.P. No.395/2001 -15- investigation. But, it may be said that practically no useful purpose would be served since the court cannot insist or issue direction to the investigating officer to conduct investigation or to file a report in a particular manner.
19. It is argued on behalf of the petitioner that under section 39 of the Abkari Act, a duty is cast on the jenmies, proprietors, tenants etc to give notice of the fact that cultivation of the hemp or coca-plant or any manufacture of liquor or intoxicating drugs, and so it cannot be said that no complaint can be filed by a private person. But, section 39 only makes it obligatory on a tenant, jenmi, or proprietor of a building or land to give notice of the commission of such offence. That cannot be treated as a complaint. If, what was filed by the revision petitioner herein was only an information or intimation to the Magistrate as required under section 39 of the Act, then the Magistrate should Crl.R.P. No.395/2001 -16- have forwarded the same for appropriate action to be taken by the Abkari Officer. That cannot be treated as a complaint within the meaning of section 2(d) of Cr.P.C.
20. Drawing inspiration from the decision of the Supreme Court (Constitution Bench) in A.R. Antulay v. Ramdas Srinivas Nayak and Another - (1984) 2 Supreme Court Cases 500 it is argued by the learned counsel for the petitioner that it is a well recognized principle of criminal jurisprudence that any one can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. It is also argued that locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant. By necessary implication, the general principle gets excluded by such statutory provision. Crl.R.P. No.395/2001 -17- The learned counsel for the respondent would submit that while Sec. 190 of the Cr.P.C. permits anyone to approach the Magistrate with a complaint; so far as the provisions of the Abkari Act are concerned, any person cannot file a complaint. Sec.50(2) of the Abkari Act makes it clear that the cognizance can be taken only on the basis of a final report under Sec.173 (2) Cr.P.C. Taking cognizance based on a private complaint does not arise at all. Therefore, it is submitted that a private person has no locus standi to file a complaint so as to warrant invocation of the power of the Magistrate to take cognizance of the offence. Since taking cognizance of the offence is circumscribed by the limitations contained in Sec.50 (2) of the Act, the contention that a private complaint can be entertained even though ultimately cognizance cannot be taken by the Magistrate, would be against the provisions contained in the Abkari Act, the learned counsel for the respondent submits. Crl.R.P. No.395/2001 -18-
21. In A.R. Antulay's case cited supra it was held by the Hon'ble Supreme Court:
"Punishment of the offender int he interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception".
22. There can be no doubt that the provisions of the Prevention of Corruption Act, 1947 and Prevention of Corruption Act, 1988 are not identical to the provisions contained in the Abkari Act. The provisions of the P.C. Act do not curtail the right of a party to file a private complaint though ultimately the cognizance can be taken only if Crl.R.P. No.395/2001 -19- sanction under Sec.19 of the P.C. Act is obtained, if the public servant is still in service. If sanction is obtained cognizance can be taken even on a private complaint. Therefore, there is a distinction between the provisions of Prevention of Corruption Act and that of Abkari Act. But, at the same time the contention that the private complaint cannot be entertained at all may not be conducive to the cause of justice or to the good of the Society or the public at large. It is pointed out that suppose a complainant gets direct knowledge or has occasion to see an illicit distillery or brewery being carried on unnoticed by others and if he has reasonable belief that the persons who are engaged in such liquor trade are in close association with the Abkari or police officials and if he also reasonably believes that if it is allowed to carry on, it will result in a major hootch tragedy, can it be said that such a person/complainant cannot approach the Magistrate, though, ultimately, the cognizance Crl.R.P. No.395/2001 -20- cannot be taken based on that complaint alone. In such circumstances, can it be said that the complaint so filed by the complainant should not be referred to the police for investigation under Sec. 156 (3) of the Cr.P.C. It is true that the complainant cannot insist that his complaint should be forwarded under Sec.156 (3) Cr.P.C. nor can the Court take cognizance in view of the specific embargo contained in Sec.50 (2) of the Abkari Act. But there may be exceptional circumstances where, the Magistrate is convinced from the factors placed before him that there are sufficient grounds to order investigation under Sec. 156 (3) of Cr.P.C. In such cases it cannot be said that the hands of the Magistrate are fettered in view of the fact that ultimate taking of cognizance is restricted or controlled by the provisions contained in Sec. 50 (2) of the Abkari Act. Crl.R.P. No.395/2001 -21-
23. Therefore, according to me though cognizance of an offence under the Abkari Act can be taken based only on a report under section 173(2) of Cr.P.C. and cognizance cannot be taken based on a private complaint and even though a complainant cannot insist the learned Magistrate to have an investigation under Sec. 156(3) Cr.P.C., in exceptional circumstances if the Magistrate, before whom the complaint is filed, is convinced of the existence of certain concrete factors, then certainly the Magistrate would be justified in forwarding such a complaint for investigation under Sec. 156 (3) Cr.P.C.
24. It may also be argued that if a complaint is forwarded to the Police under section 156(3) of Cr.P.C., it may not be possible for the Magistrate to take cognizance unless a positive report under section 173(2) Cr.P.C. is filed so as to enable the Magistrate to take cognizance of the Crl.R.P. No.395/2001 -22- offence. But at the same time it can also be argued that even if the report under section 173(2) is only a negative report, still it may be possible for the Magistrate to go through the records produced before Court to find whether the negative report under section 173(2) of Cr.P.C. is acceptable or not. Though it may not be possible for the Magistrate to proceed further on the original complaint so as to take cognizance of the matter, still it may not be illegal if the Magistrate proceeds to treat the report filed under section 173(2) of Cr.P.C. ignoring the negative opinion expressed by the Investigating/Abkari Officer, since the report filed under section 173(2) of Cr.P.C. would include a negative report also. What is required is that the report filed by the Police officer under section 173(2) of Cr.P.C. should be the entire material collected during investigation. Therefore, even if the Magistrate does not accept the opinion expressed by the Investigating Officer, it Crl.R.P. No.395/2001 -23- may be possible in certain cases to take cognizance of the offence if there are sufficient materials to proceed against the accused. (See the decision of the Supreme Court in M/s. India Carat Pvt. Ltd. v. State of Karnataka - AIR 1989 SC 885 which has been followed by the Hon'ble Supreme Court in the subsequent decisions as well). The procedure to be adopted by the Magistrate on receipt of the final report under section 173(2) cannot be treated as the one under section 200 or 202 of Cr.P.C. But instances, referred to earlier, may arise only in very exceptional circumstances. Therefore, in such exceptional circumstances the Magistrate may be justified in forwarding such a complaint to the Police Officer for investigation under section 156(3) of Cr.P.C. The Magistrate must also cautiously take note of the fact that if there are no sufficient material to forward the complaint under section 156(3), such complaints should not be entertained. Crl.R.P. No.395/2001 -24-
25. So far as the case on hand is concerned, cognizance against the accused was taken for offence under section 63 of Abkari Act, based on a private complaint, after conducting enquiry under section 202 of Cr.P.C. In view of the specific embargo contained in section 50(2) of the Act, the cognizance so taken by the learned Magistrate was bad in law and was thus liable to be set aside. It is true that when illegality was noticed by the successor Magistrate, he should have addressed the learned Sessions Judge for passing appropriate orders, since the very same Magistrate has no jurisdiction to set aside the cognizance taken by his predecessor. However, based on that complaint, the accused cannot be convicted as the cognizance taken was bad in law. It took place in the year 2000. Therefore, even if there is illegality in the procedure followed by the learned Magistrate, that is not a reason to allow this Crl.R.P., since Crl.R.P. No.395/2001 -25- the cognizance taken against the accused is bad in law. Therefore, I find no reason to interfere with the order passed by the learned Magistrate.
In the result this Criminal Revision Petition is dismissed.
Sd/-
N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj