Pravin Chandra Mody Vs. State of
Andhra Pradesh  INSC 194 (15 September 1964)
15/09/1964 HIDAYATULLAH, M.
CITATION: 1965 AIR 1185 1965 SCR (1) 269
R 1969 SC 355 (10) R 1979 SC 339 (9) R 1980
SC 506 (7) F 1987 SC1167 (9)
Essential Commodities Act (10 of 1955), s.
7--Offence underReport under s. 11.-Whether amounts to Police Report requisite
under s. 251-A and s. 190(l) (b) of Code of Criminal Procedure (5 of
1898)-Whether triable under s. 251A or s. 252 of the Code.
The appellant was being tried before a
Magistrate for offences under s. 420 of the Indian Penal Code and s. 7 of the Essential
Commodities Act, 1955. The offences arose out of the same set of parts and were
investigated together under Chapter XIV of the Code of Criminal Procedure. At
the end of the investigation the police officer filed in respect of the offence
of cheating a charge-sheet against the appellant under s. 173 of the Code which
was intended to serve also as a report in writing of a public servant as
required by s. 11 of the Essential Commodities Act. At the trial the appellant
objected that as the police had filed a report under s. 11 of the Essential
Commodities Act, the trial of the offence under s. 7 could not be under s.
251-A but should be under s. 252 of the Code of Criminal Procedure. The
Magistrate overruled his objection, and in revision the Sessions Judge and the
High Court upheld the Magistrate's order. Thereupon, the appellant came to the
The appellant's contention in the appeal was
that under s. 251-A as well as under el. (b) of s. 190(1) the report must be a
report of a police officer under s. 173 after investigation under Chapter XIV
of the Code of Criminal Procedure, that the report in the appellant's case being
under s. 11 of the Essential Commodities Act, and not a report under s. 173 it
could only be treated as a complaint under s. 190(1)(a), and that the procedure
applicable was that under s. 252.
HELD : (i) Cases falling under cls. (a) and
(c) of s. 190(l) are triable according to the procedure in s. 252 while those
falling under el. (b) of that section are triable under s. 251-A of the Code of
Criminal Procedure. As the report in the present case was made by a police
officer it could not be taken cognizance of under cls. (a) and (c) which
expressly exclude report or information given by a police officer. The offences
mentioned in such a report could therefore not be tried under s. 252. [272H;
273C-D] (ii) A report under s. I 1 is not a charge-sheet, but a report made
under s. 173 satisfies the provisions of s. I I as the police officer who makes
it is also a public servant.
The report regarding the offence under s. 7
was rightly included in the charge-sheet under s. 173 because both the offences
were investigated under Chapter XIV. The case therefore was one instituted on a
police report under s. 173 and s. 251-A was applicable. [273G; 274D-E; 275C-E]
Bhagwati Saran V. State of U.P.  3 S.C.R. 563, Rain Krishna Dalmia V.
State A.I.R. 1958 Punj. 172 and Premchand Khetry v. State A.I.R. 1958 Cal. 213,
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 49 of 1964.
270 Appeal by special leave from the judgment
and order dated September 3, 1963 of the Andhra Pradesh High Court in Criminal
Revision Case No, 132 of 1963 and Cr. R. Petition No. 118 of 1963.
J.L. Jain, K. Jayaram, for J. R. Gagrat, for
K. R. Chaudhry and B. R. G. K. Achar, for the
The Judgment of the Court was delivered by
Hidayatullah J. The appellant is being prosecuted under s.
420, Indian Penal Code and under S. 7 of the
Essential Commodities Act, 1955 for contravention of cls. (4) and (5) of the
Iron an-,I Steel Control Order. The prosecution was commenced by the Inspector
of Police, Crime Branch, C.I.D., Hyderabad by filing against him a charge-sheet
tinder S. 173 of the Code of Criminal Procedure in respect of the offence of
cheating which was intended to serve also as a report in writing of a public
servant as required by S. 11 of the Essential Commodities Act, 1955. Learned
City Magistrate of Secunderabad framed a charge against him under s. 251A(3) of
the Code of Criminal Procedure in respect of both the offences. The appellant
then raised two preliminary objections : the first was that as the commodity
was obtained and disposed of at Bombay, the Court at Secunderabad had no
jurisdiction to try him. This objection, which would have necessitated the
recital of facts, has not been raised before us and it is not necessary to
mention it again. The second objection was that as the police had filed a
report under s. I 1 of the Essential Commodities Act, a trial of the offence
under s. 7 could not be under s. 251A but under s. 252 of the Code of Criminal
Procedure. He, therefore, asked that the charge framed against him should be
quashed. This objection was rejected.
The appellant thereupon moved the Sessions
Judge in revision who declined to interfere. He filed a second revision in the
High Court of Andhra Pradesh but it was dismissed by the order which is now
In so far as the trial of the alleged offence
420, Indian Penal Code is concerned there is
no objection to its trial under S. 251A, Code of Criminal Procedure. That
provision is made for the procedure to be adopted in cases "instituted on
a police report". Under that procedure the Magistrate has to satisfy
himself, at the commencement of the trial, that the documents referred to in s.
173 have been furnished to the accused and if they have not been furnished to
cause them to be so furnished.
271 The Magistrate must then consider all the
documents and after making such examination, if any, of the accused, as the
Magistrate thinks necessary and after giving the prosecution and the accused'
in opportunity of being heard, the Magistrate must consider whether a charge
should be framed against the accused or not. If he comes to the conclusion that
the charge is groundless he must discharge him. On the other hand, if he is of
the opinion that there is ground for presuming that the accused has committed
an offence triable under this Chapter, which he is competent to try and which,
in his opinion, could be adequately punished by him, he must frame a charge in
writing against the accused and after explaining it to him record his plea and
proceed according to it. Under s. 252, Criminal Procedure Code, it is provided
as follows :"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 think
necessary." Under s. 253, Criminal Procedure Code, if, upon taking all the
evidence referred to in the section just quoted and making such examination, if
any, of the accused as the Magistrate thinks necessary, he finds that no case
against the accused has been made out which, if unrebutted, would warrant his
conviction, the Magistrate can discharge him.
On the other hand, if it appears to the
Magistrate that there are grounds for presuming that the accused has committed
an offence which the Magistrate is competent to try and which, in his opinion,
could be adequately punished by him, he frames a charge against him and records
If the accused does not plead guilty the
Magistrate gives him time to state which of the prosecution witnesses be wishes
to cross-examine, if any, and if he says that he does so, the witnesses are
recalled and are allowed to be crossexamined.
272 Contention of the appellant. is that by
the words 'police report' in s. 25 1A of the Code of Criminal Procedure, is
meant the report mentioned in S. 173 which the police officer makes to a
Magistrate in respect of offences investigated by him under Chapter XIV. The
investigation is in respect of cognizable offences because noncognizable
offences may only be investigated by police officers after being authorised in
that behalf by a competent Magistrate.
-It is pointed out that under S. 190,
cognizance of an offence is taken in different ways : (a) upon receiving a
complaint of facts which constitute an offence; (b) upon a report in writing of
such facts made by any police officer;
and (c) upon information received from any
person other than a police officer, or upon the Magistrate's own knowledge or
suspicion that such offence has been committed. It is argued on the basis of
this threefold distinction that by the 'police report' in s. 190 (1 ) (b) is
meant the chargesheet of the police officer under S. 173 of the Code, and since
the report in writing which the police officer makes under s. I I of the Essential
Commodities Act, 1955 is not a chargesheet under S. 173 of the Code it must be
equated to a complaint of facts under s. 190(l) (a). In view of this
distinction it is contended that while the offence under S.
420, Indian Penal Code is triable under the
procedure laid down in S. 251A, Criminal Procedure Code, the offence under S. 7
of the Essential Commodities Act is triable under the procedure laid down under
S. 252, 'Criminal Procedure Code.
The appellant submits that either the two
charges should be split up or the two offences should be tried under the
procedure laid down by S. 252 of the Code of Criminal Procedure as the
procedure under S. 251A, Criminal Procedure 'Code, does not afford the accused
the chance of a second crossexamination which S. 252 of the Code gives, and
there is prejudice 'to him in the trial of the offence under S. 7 of the Essential
In our judgment the meaning which is sought
to be given to a police report' is not correct. In S. 190, a distinction is
made between the classes of persons who can start a criminal prosecution. Under
the three clauses of S.
190(l), to which we have already referred,
criminal prosecution can be initiated (i) by a police officer by a report in
writing, (ii) upon information received from any person other than a police
officer or upon the Magistrate's own knowledge or suspicion, and (iii) upon
receiving a complaint of facts. If the report in this case falls within (i)
above, then the procedure under S. 251A, Criminal Procedure 'Code, must be
followed. If it falls in (ii) or (iii) then the pro273 cedure under s. 252,
Criminal Procedure Code, must-be followed. We are thus concerned to find out
whether the report of the police officer in writing in this case can be
described as a "complaint of facts" or as "information received
from any person other than a police officer". That it cannot be the latter
is obvious enough because the information is from a police officer. The term
"complaint" in this connection has been defined by the Code of
Criminal Procedure and it "means the 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 it does not
include the report of a police officer". [See s. 4 (1) (h) ].
It, therefore, follows that s. 252, Criminal
Procedure Code, can only apply to those cases which are instituted otherwise
than on a police report, that is to say, upon complaints which are not reports
of a police officer or upon information received from persons other than a
police officer. The initiation of the prosecution in this case was upon a
report in writing by the police officer. Section 1 1 of the Essential
Commodities Act, 1955 reads as follows " 11. Cognizance of offences.--No
Court shall take cognizance of any offence punishable under this Act except on
a report in writing of the facts constituting such offence made by a person who
is a public servant as defined in section 21 of the Indian Penal Code." In
Bhagwati Saran v. State of U.P.(1) this Court explained the nature of a report
under S. 11 of the Essential Supplies (Temporary Powers) Act, 1946 which was a
provision in the same words. This Court has held that the function of the
report under s. 1 1 is not to serve as a charge-sbeet against the accused, and
that the purpose of s. 11 is to eliminate private individuals such as rival
traders or general public from initiating the prosecution and to insist that
before cognizance is taken the complaint must emanate from a public servant.
The police officer is a public servant and this was not denied before us. The
requirements of s. 11 are, therefore, satisfied, though s. I 1 does not make
the report, if filed by a police officer, into a charge-sheet. It is then
contended that the report under s. II cannot be treated as a report under s.
173 but only as a complaint under s. 190(l) (a). The police officer was
investigating under S. 156(1) of the Code of Criminal Procedure an offence
under s. 420, Indian Penal Code which was based on the same facts as the
offence under s. 7 of the Essential Commodities Act. He investigated the latter
offence along with the (1)  3 S.C.R. 563.
274 former and joined it with the former in
the charge-sheet which presented.
Section 156(2) provides that where a police
officer enquire into an offence under S. 156(1) his action cannot be called
into question on the ground that he was not empowered to investigate the
offence. The enquiry was an integrated one, being based on the same set of
facts. Even if the offence under the Essential Commodities Act may not be
cognizablothough it is not alleged by the appellant that it is noncognizable-the
police officer would be competent to include it in the charge-sheet under S.
173 with respect to a cognizable offence. In Ram Krishna Dalmia v. State(1),
Falshaw J. (as he then was) observed that the provisions of s. 155(1), Criminal
Procedure Code, must be regarded as applicable to those cases where the
information given to the police is solely about a non-cognizable offence. Where
the information discloses a cognizable as well as a noncognizable offence the
police officer is not debarred from investigating any non-cogniz,able offence
which may arise out of the same facts. He can include that non-cognizable
offence in the charge-sheet which he presents for a cognizable offence. We
entirely agree. Both the offences if cognizable could be investigated together
under Chapter XIV of the Code and also if one of them was a non, cognizable
It was contended before us on the authority
of Premchand Khetry v. The State (2) that a prosecution under S. 25 1 A,
Criminal Procedure Code can only commence on a report under S. 173 of the Code
of Criminal Procedure. It is submitted that the report of the police officer
cannot be regarded as a charge-sheet for purposes of S. 173, Criminal Procedure
Code. In that case the learned Judges of the Calcutta High Court went
elaborately into the meaning of the expression 'police report' in S. 190(1)(b)
and held that those words were confined to a charge-sheet under S. 173 of the
We have pointed out above that in all those
cases where the law requires a report in writing by a public servant the
requirements of the law are satisfied when a report is filed by a public
servant who is also a police officer. We have also pointed out that even in
cases where the police office cannot investigate a non-cognizable offence
without the permission of a Magistrate he is not prevented by anything in the
Code from investigating a non-cognizable offence along with a cognizable
offence when the two arise from the same facts. In the Calcutta (1) A.T.R. 1958
(2) A.I.R. 1958 Cal. 213.
275 case to which we have last referred,
there was a provision (s. 20G) in the Opium Act, as amended in Bengal, which
provided that a report in writing by an officer of the Excise, Police or the
Customs Department shall be enquired into and tried as if such report was a
report in writing made by police officer under cl. (b) of s. 190 (1) of the
Code of Criminal Procedure, 1898. The Divisional Bench in the Calcutta High
Court held that the section created a fiction by which the report of an Excise
or Customs officer was to be regarded as the report of a police officer but
only for the purpose of s. 190(l) (b), that it did not make the report a
charge-sheet under s. 173 of the Code, and that s. 251,A, Criminal Procedure
Code, was not applicable because it contemplated a report under s. 173 of the
We invited counsel to tell us that if the
effect of the fiction did not make it a report under s. 173, Criminal Procedure
Code, what other purpose could the Legislature have had in mind in saying that
it was a police officer's report ? He could suggest none, and we cannot also
see what other purpose was intended. In our opinion, the position is clear that
such reports, if they are regarded as made under s.
190(1) (b), must attract the provisions of s.
251A of the Code, because if the fiction is given full effect they cannot be
regarded as falling within 'complaints' under s. 190(1) (a) or within s.
190(1)(c). In any case, the Divisional Bench also said that s. 251A is
applicable to the trial of a case which is initiated on a police report under
s. 173 if the investigation is one to which s. 173, Criminal Procedure Code may
be applied, and both the conditions are fulfilled in this case The High Court
was right in not interfering in revision with the trial of the case. We dismiss
the appeal. The appellant has succeeded in delaying this trial for a
considerable time. We direct that the trial shall take place from day to day
till the case is disposed of according to law.