Report No. 178

19. Amendment of Chapter XIX of the Code of Criminal Procedur.-

Chapter XIX of the Code provides for trial of warrant cases by Magistrates. This chapter is sub-divided into two part.- Part-A (governing the cases instituted on a police report) and Part-B (governing cases instituted otherwise than on police report). The main difference in the procedure is that in cases governed by Part-A, the magistrate can frame charges straightaway after pursuing the police report and the accompanying documents. Section 239, no doubt, empowers him to examine the accused if he thinks it necessary and also to give an opportunity of hearing to the accused before framing the charge or discharging the accused, as the case may be, but this is only discretionary and not obligatory.

Whereas in cases governed by Part B, (i.e., in cases instituted otherwise than on Police report), the procedure is different and more elaborate. In such cases, the magistrate has to first hear the prosecution and take all such evidence as may be produced in support of the prosecution and on consideration of such evidence, he may either discharge the accused, if the complaint is found groundless or frame the charges, if he thinks there is material to show that accused has committed the offence triable under the said chapter. Thereafter the accused is asked whether he pleads guilty and if he denies the charge he will be asked to cross-examine the witnesses and the trial proceeds.

There is a very good reason behind the distinction made by the Code between cases instituted on police report and cases instituted otherwise than on police report. A police report is filed pursuant to and as a result of 136 investigation done by an independent agency i.e., the police, whereas in case of a private complaint, such an assurance is absent. It is for this reason that the distinction between the two procedures was upheld by the Supreme Court in Budhan Choudhary v. State of Bihar (AIR 1955 SC 191).

It is however brought to our notice that where the authority under the Income Tax Act, Central Excise Act, Customs Act, FERA/FEMA, Employees State Insurance Act, 1948 and the Companies Act, 1956 files complaints before a criminal court for prosecuting the persons under those enactments, the Courts are following the procedure in Part B of Chapter XIX, treating these cases as cases filed otherwise than on a police report. The course adopted by the Court appears to be unobjectionable on the language now employed in the chapter. In our opinion, however, this requires to be changed.

It must be provided that where a complaint is filed by the appropriate authority under any of the aforesaid enactments or similar enactments it should be proceeded with under Part A. This is for the reason that appropriate authorities under these enactments also file complaints after a good amount of investigation, inquiry and verification. Take for example, a criminal complaint filed under section 276 C of the Income Tax Act. According to this section "If a person willfully attempts in any manner whatsoever to evade any tax, penalty or interest chargeable or imposable under this Act, he shall, without prejudice to any penalty that may be imposable on him under on any other provision of this Act be punishable." by a criminal court.

It is obvious that such a complaint will not be filed merely on the filing of the Return by the assessee but only after 137 the appropriate authority is satisfied that there has been such a wilful attempt to evade the tax, penalty or interest chargeable/imposable under the Act. Indeed, no complaint can be filed under section 276-.- as a matter of a fact under any of the Sections 275-A, 276, 276-A, 276-B, 276-BB, 276- CC, 276-D, 277 and 27.- except with the previous sanction of the Commissioner, Commissioner (Appeals) or the appropriate authority (as defined in Explanation to sub-section (1) of section 279(1)) by virtue of the provision contained in section 279 of the Act.

The requirement of sanction of a higher official is a check against misuse of or frivolous resort to, the power to prosecute. In fact, the I.T. Act provides greater safeguard against misuse of this power than the code of criminal procedure. Even under the other enactments referred to above, a good amount of enquiry is made before launching the prosecutio.- it is never a matter of course. Treating the complaints filed after such elaborate enquiry ought not to be equated with the complaints filed by private individuals and should not be subjected to the procedure in Part B of Chapter XIX.

Applying Part-B is resulting in inordinate delay in processing these complaints, which in fact relate to economic offences, which must be given priority over the ordinary law and order crimes. It is, just and appropriate that the complaints filed by the appropriate authorities under taxing enactments and other enactments mentioned hereinabove, should be governed by the procedure contained in Part A of Chapter XIX.

For achieving the above purpose it is necessary to amend the heading of 'Part A'. The present heading should be substituted by the heading 138

"Cases instituted on a police report or on a complaint made by a public servant acting or purporting to act in the discharge of his official duties."

It is equally necessary to amend section 238 to provide that in any warrant case instituted upon a complaint made by a public servant, when the accused is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that all the relevant documents constituting the basis of the complaint or referred to therein, have been furnished to the accused. At present, section 238 requires that "when in any warrant case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of Section 207".

Section 207 requires that in proceedings instituted on a police report, the magistrate shall, without delay, furnish to the accused, free of cost, copy of the police report, FIR, statement recorded under section 161(3), confessions and statements, if any, recorded under section 164 and any other document or relevant extract thereof forwarded to the magistrate with the police report under section 173(5). A new section 207A is proposed to be inserted to provide that the Magistrate shall without delay, furnish to accused, free of cost, a copy of the complaint and documents on which it is based and other documents referred to therein.

This is a salutary provision and must be observed even by the authorities under the taxing and other enactments whose complaint is now suggested herein to be equated with the police report. The consequential amendments required to be carried out in other provisions of the Code are as follows:-

1. Amendment of section 19.- After clause (b) of sub-section (1) after the words "such facts" the following words shall be inserted, namely.-

"or upon a complaint of facts which constitute such offence made by a public servant acting or purporting to act in discharge of his official duties;"

2.Substitution of the heading of Part A under Chapter XI.- The existing heading of Part A under Chapter XIX shall be substituted as follows:-

"A.- Cases instituted on a police report or on a complaint made by a public servant acting or purporting to act in discharge of his official duties."

3. Insertion of new section 207.- After section 207 of the principal Act, the following section shall be inserted, namely :-

"207A. In any case, where the proceeding has been instituted on a complaint made by a public servant acting or purporting to act in the 140 discharge of his official duties, the Magistrate shall without delay furnish to accused, free of cost, a copy of the complaint and documents on which it is based and other documents referred to therein."

Provided that if the Magistrate is satisfied that any document referred to in the complaint is voluminous,he shall instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in court. "

4. Amendment of section 23.- Section 238 of the principal Act shall be renumbered as sub-section (1) and after sub-section as so renumbered, the following sub-section shall be inserted namely:-

"(2) When, in any warrant-case instituted upon a complaint made by a public servant acting or purporting to act in the discharge of his official duties, the accused is brought before a magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of section 207A." 141

5. Substitution of section 23.- For section 239 of the principal Act the following section shall be substituted, namely:-

"239. If, upon considering the police report and the documents sent with it under section 173 or upon

considering the complaint made by the public servant acting or purporting to act in the discharge of his official duties and the documents sent with it and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing." 142

6. Substitution of heading B below section 24.- The existing heading "B" below section 243 shall be substituted as follows:-

"B.-Cases instituted otherwise than on police report or on a complaint made by a public servant acting or purporting to act in discharge of his official duties"

7. Amendment of section 24.- In section 244 of the principal Act, in subsection (1) for the words, "When in any warrant case instituted otherwise than on a police report, the accused appears" the words "When in any warrant case instituted otherwise than on a police report, or upon a complaint made by public servant acting or purporting to act in the discharge of his official duties, the accused appears" shall be substituted.

8. Amendment of section 24.- in section 249 , for the words, "When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, 143 the complainant is absent," the words "When the proceedings have been instituted upon complaint other than a complaint made by a public servant acting or purporting to act in the discharge of his official duties, and on any day fixed for the hearing of case, the complainant is absent," shall be substituted.

9. Amendment of section 25.- In section 256 of the principal Act, in sub-section (1), for the words, " If the summons has been issued on complaint and on the day appointed for the appearance of the accused," the words " If the summons has been issued on complaint, other than a complaint made by public servant acting or purporting to act in the discharge of his official duties, and on the day appointed for the appearance of the accused," shall be substituted.

If the above suggestion is implemented it will cut down a good amount of delay which is occurring in prosecutions lodged under taxing enactments and other enactments like those referred hereinabove. It will advance the public interest and interests of justice without any manner compromising or affecting the legitimate rights of the accused. 144

This Report deals with various enactments of which some, like the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973, are procedural while some others, namely, the Partnership Act, 1932, Hindu Marriage Act, 1955, Hindu Adoption & Maintenance Act, 1956 etc. concern substantive laws. (Of course, some proposals relate to new offences which are created and these cannot be retrospective).

We, therefore, felt that it is necessary to set out in detail which of these provisions apply to pending suits, appeals under the Code of Civil Procedure and which provisions shall apply to the inquiries and judicial proceedings under the Code of Criminal Procedure and to what extent some of the proposals for amendment of the substantive laws shall apply to pending proceedings. We have, therefore, accordingly formulated these matters under Section 15 with the heading, "Transitory Provision".

The amendments in the Code of Criminal procedure, 1973, recommended in the 177th report on 'Law of Arrest', also need to be implemented along with the amendments recommended in the Criminal Procedure Code, 1973, in the Law Reform (Miscellaneous Provisions Amendment) Bill, 2002, annexed with this report. 145