It is duty of Police Officer, to register crime report under relevant provisions of law

PLJ 2018 Cr.C. (Lahore) 481[Multan Bench Multan]

Present: Asjad Javaid Ghural, J.

ABID HUSSAIN--Petitioner

versus

STATE--Respondents

Crl. Rev. No. 94 of 2017, heard on 4.10.2017.

Duty of Police Officer--

----Crime report--It is duty of Police Officer, to register crime report under relevant provisions of law after minutely going through written or verbal assertion of informer and thereafter during investigation, Investigating officer is always duty bound to collect evidence (for and against) and prepare a report under Section 173, Cr.P.C., on basis of material available on record under relevant provision of law--Before submission of challan, Investigating Officer had to see prima facie what offence was made out from allegation of cognizable offence--Police /officer, who had registered crime report as well as Investigating Officer remained fail to discharge their duties in accordance with law--Act of accused persons as alleged in crime report squarely falls under definition of terrorism.

                                                                                  [Pp. 483 & 484] A

Terrorism--

----Definition of--Accused persons have committed murder of innocent person, in police uniform for purpose to spread terror and 5 in society so that no one from law enforcement agencies step forward to take any action against them, is squarely falls under definition of “terrorism” as envisaged under statute--They not only refrained police officials from discharging their official duties but also given a message to police functionaries as well as public at large while creating panic, fear and insecurity in society.                   [P. 484] B

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), S. 439--Criminal Revision--Application for insertion of S. 7 of ATA 1997, was dismissed--Trial Court has not considered very purpose of enforcement of Anti-Terrorism Act 1997, especially at time of framing of charge trial Court was under legal obligation to go through entire record to proceed further--From bare reading of crime report taking and into an account facts and circumstances of case, this case falls within ambit of “terrorism” which is exclusively triable by Anti-Terrorism Court--Order impugned passed by trial Court is suffered with illegality and perversity and has prejudiced case of prosecution and, thus, invites the interference by High Court--Revision allowed.                                                   [P. 484] C

Mr. Basir Khan Sakhani, Advocate for Petitioner.

Qari Abdul Karim Shahab, Advocate for Respondents.

Mr. Muhammad Ali Shahab, DPG for State.

Date of hearing: 4.10.2017.

Judgment

Through this criminal revision petition Abid Hussain has assailed the legality and propriety of order dated 06.06.2013 passed by the learned Additional Sessions Judge, Kot Adu(Camp at Central Jail), Dera Ghazi Khan, whereby the application of the petitioner for insertion of Section 7-ATA of 1997 in case FIR No. 01 dated 01.01.2011 in respect of offences under Sections 302, 353, 186, 148, 149, PPC registered at Police Station Mehmood Kot District Muzaffargarh, was dismissed.

2.  The facts necessary for disposal of the instant petition are that Abid Hussain ASI, the complainant along-with Muhammad Ishaq 10820-C in an official vehicle Bearing No. 1455/MHC driven by Matloob Hussain 945/HC proceeding from Choki Abbas Wala to Sunalwan City in order to repair official motorcycle and for change of engine oil of the vehicle. At about 11:30 a.m. when they reached in the area of Mauza Thatha Gurmati, they saw six persons armed with kalashnikovs namely Javaid Lashari, Abdul Ghafoor alias Kali Kanera, RabNawaz alias Nabi Dadda, Sadiq, Abdul Razzaq and one unknown persons riding on two motorcycles, Honda-125. They haulted the police party, aimed their weapons towards them and directed them to deboard from the official vehicle. Abdul Ghafoor alias Kali Kanera inquired them whether the officials belonged to Police Station Kot Mehmood. On replying in positive the accused persons, who were already annoyed on police encounter made by the officials of Police Station Kot Mehmood, resulting into inflicting fire-arm injuries to Nadir Lashari, companions of the accused persons a day before the instant occurrence, in order to take revenge Sadiq Lashari accused made a brust of kalashnikov at the chest of Muhammad Ishaq constable who fell down smeared with blood, thereafter, Rab Nawaz, Abdul Razzaq and one unknown made a burst of kalashnikov on the tyres, bonnet and front screen of vehicle and made an alarm that who so ever attempted to assault upon them they will teach him a lesson. The complainant attended Muhammad Ishaq, constable who had succumbed to the injuries at the spot. It was further alleged that the accused were members of a gang of dacoits consisting of 14/15 persons who had been indulged in murder, abduction for ransom and such like other criminal activities. Hence this case was registered.

3.  Challan was submitted in the Court of ordinary jurisdiction and at present the case is being tried in the jail premises by the learned Additional Sessions Judge Kot Adu. During proceedings the complainant had filed an application with the submission that it was a case of terrorism and it was to be adjudicated by the Anti-Terrorism Court as offence under Section 7-ATA 1997 does attract to the facts and circumstances of the case but the said application was dismissed with the observation that initially the case was registered without insertion of Section 7-ATA 1997, and the case is being proceeded in Central Jail D.G Khan with the sanction of Home Department, where statements of some of the witnesses have already been recorded. It was further observed that prosecution had never added Section 7-ATA of 1997, while submitting the challan and no objection had been made by the Prosecution Department at the time of framing of the charge.

4. Learned counsel for the petitioner submits that the police officials were on duty, wearing police uniforms travelling on official vehicle when they were intercepted by the accused persons who had committed the murder of Muhammad Ishaq Constable having no fault on his part; that the bare reading of the crime report transpires that it was a case of terrorism and the police official who had registered the crime report, was under legal obligation to insert Section 7-ATA of 1997, along-with other enabling provisions of law. During investigation the Investigating Officer did not bother to add Section 7-ATA of 1997 and submitted challan in the Court of ordinary jurisdiction, which is not permissible under the law.

5.  Learned Prosecutor General has conceded in all fairness that the case was triable by the Anti-Terrorism Court and non-inserting of Section 7-ATA of 1997 is a fault on the part of Investigating Officer which can be cured while submitting supplementary report under Section 173, Cr.P.C.

6.  I have heard learned counsel for the petitioner as well as learned Deputy Prosecutor General appearing for the State and have perused the record.

7.  It is the duty of the Police Officer, to register the crime report under relevant provisions of law after minutely going through the written or the verbal assertion of the informer and thereafter during investigation, the Investigating officer is always duty bound to collect the evidence (for and against) and prepare a report under Section 173, Cr.P.C., on the basis of material available on record under the relevant provision of law. Before submission of challan, the Investigating Officer had to see prima facie what offence was made out from the allegation of cognizable offence. The police officer, who had registered crime report as well as Investigating Officer remained fail to discharge their duties in accordance with law. The act of accused persons as alleged in the crime report squarely falls under the definition of terrorism as envisaged under the statute i.e. Anti-Terrorism Act, 1997, the same is reproduced here:

Under Section 6(1). In this Act, “terrorism “ means the use or threat of action where:

(c)      “The use of threat is made for the purpose of advancing a religious, sectarian or ethnic cause {for intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies}.

Section 6(2)  An “action” shall fall within the meaning of sub-section (1), if it:

(O)     involves in acts as part of armed resistance by groups or individuals against law enforcement agencies.”

In the instant case the accused persons have committed the murder of innocent person, in police uniform for the purpose to spread the terror and Panic in the society so that no one from law enforcement agencies step forward to take any action against them, is squarely falls under the definition of “terrorism” as envisaged under the statute. They not only refrained the police officials from discharging their official duties but also given a message to the police functionaries as well as public-at-large while creating panic, fear and insecurity in the society.

8.  Learned trial Court has not considered the very purpose of the enforcement of Anti-Terrorism Act 1997, especially at the time of framing of charge the learned trial Court was under legal obligation to go through the entire record to proceed further. From the bare reading of crime report and taking into an account the facts and circumstances of the case, this case falls within the ambit of “terrorism” which is exclusively triable by the Anti-Terrorism Court. The order impugned passed by the learned trial Court is suffered with illegality and perversity and has prejudiced the case of the prosecution and, thus, invites the interference by this Court.

9.  For what has been discussed above, instant revision petition is allowed, impugned order dated 6.6.2017 is set aside and learned trial Court is directed to transmit the case file to the learned Anti-Terrorism Court concerned .after due process.

(A.A.K.)          Revision allowed

Procedure in case of Joint Trial of Challan and Complaint Case

PLJ 2016 SC 108[Appellate Jurisdiction]

Present: Asif Saeed Khan Khosa, Mushir Alam & Dost Muhammad Khan, JJ.

NIAZ AHMED--Petitioner

versus

HASRAT MAHMOOD, etc.--Respondents

Crl. Petition No. 685 of 2015, decided on 4.11.2015.

(Against the judgment dated 13.7.2015 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No. 307 of 2009).

Constitution of Pakistan, 1973--

----Art. 185(3)--Pakistan Penal Code, (XLV of 1860), S. 302--Acquittal--Allegations--Joint and simultaneous trial--Suspicion was expressed against accused--Circumstantial evidence in shape of last seen evidence, motive and extra judicial confession--Law is settled by now that if different versions of same incident are advanced by rival parties through cross-cases and such different versions contain different sets of accused persons then trial of such cross-cases is to be held simultaneously and side by side and a reference in that respect may be made--Law is equally settled on point that where same party lodging FIR also institutes a private complaint containing same allegations against same set of accused persons then trial Court is to hold a trial in complainant case first and in meanwhile challan case is to be kept dormant awaiting fate of trial in complaint case and a reference in that respect may be made.

                                                                                                                        [Pp. 110] A & B

PLD 1971 SC 713, PLJ 1981 SC 895, 1987 PSC 646, 2000 SCMR 641, PLD 1966 SC 708, 1981 SCMR 361, NLR 1984 Cr.LJ 300 SC, PLD 1986 SC 737 & PLD 1987 Lah.245, ref.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 537--Constitution of Pakistan, 1973, Art. 185(3)--Consolidated trial of challan case and complainant case--Mode of trial--Failure of justice--Identical allegations as leveled in FIR--Joint and simultaneous trial--Validity--No finding, sentence or order passed by a Court of competent jurisdiction is to be reversed or altered in appeal or revision on account of any error, omission or irregularity in mode of trial unless such error, omission or irregularity has in fact occasioned a failure of justice--Whether any error, omission or irregularity in any proceedings in Cr.P.C. has occasioned a failure of justice Court shall have regard to fact whether an objection in that regard could and should have been raised at an earlier stage in proceedings--After a consolidated trial having been ordered by trial Court petitioner had never raised any objection throughout trial against mode of trial adopted--Petitioner had remained unable to convince that mode of trial adopted by trial Court had caused any failure of justice because whatever be mode of trial adopted by trial Court evidence available with prosecution was not likely to improve--Evidence available with prosecution was not worthy of implicit reliance and, thus, Courts below had been found to be quite justified in concluding that prosecution had failed to prove its case against respondents beyond reasonable doubt--Petition was, dismissed.                                                   [Pp. 110 & 111] C, D & E

Sh. Ahsan-un-Din, ASC for Petitioner.

Mr. Tanvir Iqbal, ASC for Respondents No. 1 to 3.

Date of hearing: 4.11.2015.

Order

Asif Saeed Khan Khosa, J.--We have heard the learned counsel for the petitioner at some length and have gone through the relevant record of the case appended with this petition.

2.  As regards the merits of the case we have noticed that the occurrence in this case had taken place during a night and according to the FIR as well as the private complaint initially only a suspicion had been expressed by the petitioner against Respondents No. 1 to 3 vis-a-vis their involvement in the murder in issue. During the trial the proseuction had based its case against Respondents No. 1 to 3 only on circumstantial evidence in the shape of the last-seen evidence, motive and an extra-judicial confession. All the said three pieces of evidence had thread barely been discussed by the trial Court as well as the High Court and both the Courts below had concurred in their conclusion that the prosecution had remained unable to prove its case against Respondents No. 1 to 3 beyond reasonable doubt and resultantly the trial Court had acquitted the said respondents and the High Court had upheld such acquittal. Upon our own independent evaluation of the said pieces of evidence we have not been able to take a view of the matter different from that concurrently taken by the Courts below.

3.  It has vehemently been argued by the learned counsel for the petitioner that the petitioner had initially lodged an FIR in respect of the incident in question and subsequently, having remained dissatisfied with the investigation of the case by the local police, he had instituted a private complaint regarding the selfsame incident containing identical allegations as leveled in the FIR and, thus, by virtue of the law declared by this Court in many cases the trial Court ought to have conducted the trial in the complaint case first and it ought not to have consolidated the complaint case and the Challan case for a joint and simultaneous trial. In this regard the learned counsel for the petitioner has placed reliance upon the cases of Nur Elahi v. The State, etc. (PLD 1966 SC 708), Mst. Rasool Bibi v. The State and another (2000 SCMR 641), SyedMuhammad Hussain Shah v. Abdul Hamid and 5 others (1981 SCMR 361) and Muhammad Azam v. Muhammad Iqbal and others (PLD 1984 SC 95). We have attended to the said argument advanced by the learned counsel for the petitioner and have also perused the precedent cases referred to by him in support of such contention. The law is settled by now that if different versions of the same incident are advanced by the rival parties through cross-cases and such different versions contain different sets of accused persons then trial of such cross-cases is to be held simultaneously and side by side and a reference in this respect may be made to the cases of Muhammad Sadiqv. The State and another (PLD 1971 SC 713), Abdul Rehman Bajwa v. Sultan and Nine others (PLJ 1981 SC 895), Rashid Ahmad v. Asghar All etc. (1987 PSC 646) andMst. Rasool Bibi v. The State and another (2000 SCMR 641). The law is equally settled on the point that where the same party lodging the FIR also institutes a private complaint containing the same allegations against the same set of accused persons then the trial Court is to hold a trial in the complainant case first and in the meanwhile the Challan case is to be kept dormant awaiting the fate of the trial in the complaint case and a reference in this respect may be made to the cases of Nur Elahi v. The State, etc. (PLD 1966 SC 708), Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 53), Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others (1981 SCMR 361),Mumtaz and others v. Mansoor Ahmed and another (NLR 1984 Cr.L.J. 300 (SC)), Rashid Ahmad v. Asahar Ali and others (PLD 1986 SC 737) and Aziz-ur-Rehman v. The State (PLD 1987 Lahore 245). In the case in hand the trial Court had ordered a consolidated trial of the Challan case and the complainant case which apparently was not the recommended course to be adopted. Be that as it may the fact remains that the provisions of Section 537, Cr.P.C. provide that no finding, sentence or order passed by a Court of competent jurisdiction is to be reversed or altered in appeal or revision on account of any error, omission or irregularity in the mode of trial unless such error, omission or irregularity has in fact occasioned a failure of justice. An explanation attached with Section 537, Cr.P.C. clarifies that in determining whether any error, omission or irregularity in any proceedings in the

Code of Criminal Procedure has occasioned a failure of justice the Court shall have regard to the fact whether an objection in that regard could and should have been raised at an earlier stage in the proceedings. In the present case we have pertinently noticed that after a consolidated trial having been ordered by the trial Court the petitioner had never raised any objection throughout the trial against the mode of trial adopted. Apart from that the learned counsel for the petitioner has remained unable to convince us that the mode of trial adopted by the trial Court had caused any failure of justice because whatever be the mode of trial adopted by the trial Court the evidence available with the prosecution was not likely to improve. We have already noticed above that the evidence available with the prosecution was not worthy of implicit reliance and, thus, the Courts below have been found by us to be quite justified in concluding that the prosecution had failed to prove its case against Respondents No. 1 to 3 beyond reasonable doubt. In these circumstances no occasion has been found by us for interference in the matter by this Court. This petition is, therefore, dismissed and leave to appeal is refused.

(R.A.)  Leave refused

Judgment in a Central Excise Act 1944 Case

PLJ 2015 SC 701[Appellate Jurisdiction]

Present: Nasir-ul-Mulk, HCJ, Gulzar Ahmed & Mushir Alam, JJ.

DEPUTY DIRECTOR COLLECTOR CUSTOMS INTELLIGENCE AND INVESTIGATION, PESHAWAR--Appellant

versus

FARMAN ALI and others--Respondents

Civil Appeal No. 09 of 2006, heard on 27.1.2015.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 25.03.2006 passed in W.P. No. 85 of 2000)

Central Excise Act, 1944--

----S. 13--Power to arrest--Leave granting order--Comprehensive procedure for inquiry into offence--Validity--Comprehensive procedure for inquiry into an offence committed under Act, right up to filing of complaint before special judge--Central Excise Officer has been conferred power to arrest a person whom he believes to have committed a crime under Act--Upon arrest he is required to produce accused before special judge within 24 hours--Special judge may admit accused to bail or direct his detention “at such place as he deems fit.”      [P. 707] A

Central Excise Act, 1944--

----S. 13(6), (8) & (10)--Scope of--Leave granting order--Power to arrest--Procedure of inquiry into allegation--Sufficient evidence was required--Arrest of a suspect CEO is required to record fact of arrest and other relevant particulars in register and then to proceed with inquire into allegations--Where complete particulars of case are to be mentioned, including person arrested, time and date of arrest, things and documents recovered and taken into custody, details of information received and manner in which inquiry had been conducted--If Central Excise Officer does not proceed to release accused for lack of sufficient evidence he is required to submit complaint to special judge.         [P. 707] B & C

Criminal Procedure Code, 1898 (V of 1898)--

----S. 154--Central Excise Act, 1944, S. 13(6) & (10)--Power to registrar FIR--High Court had set aside F.I.R. in case on ground that Act, 1944 does not make any provision for it--Provision of sub-section (6) read with sub-section (10) of Act when examined in juxtaposition with Section 154 of Cr.P.C. bears material similarity between two and thus CEO is also empowered to register a criminal case in shape of F.I.R. [P. 707] D

Police Rules, 1934--

----R. 24, 1 & 5--Criminal Procedure Code, (V of 1898), Ss. 154, 156 & 157--Central Excise Act, 1944--S. 13(10)--Entry of information in a book--Investigation--Cognizable offence--Power of central excise officer--Validity--Absence of F.I.R. however, does not, in any way, take away or effect powers of CEO to arrest an accused under Act, to carryout inquiry into an offence and to file complaint before Special Court--By setting aside registration of F.I.R.--High Court had annulled entire criminal proceedings--Such an impression perhaps is being gathered as ordinarily when any F.I.R. is quashed by Court entire criminal proceedings are set at naught--Excise officer can still file complaint under S. 13(11) of Act before Special Judge                                [P. 708] E, F, G & H

Central Excise Act, 1944--

----S. 13--Criminal Procedure Code, (V of 1898), S. 173--Power to arrest--Nature of complaint--As regards nature of complaint to be filed by Central Excise Officer to special judge for trial of accused same has been expressly equated with police report submitted by S.H.O. under Section 173 of Cr.P.C.--It is in nature of police report (challan) submitted by police under Cr.P.C. and has all trappings of such a police report and trial Court shall proceed upon it accordingly--However, setting aside of registration of case in that format did not amount to quashment of criminal proceedings against respondents.                                      [Pp. 708 & 709] I, J & K

Central Excise Act, 1944--

----S. 13(10)--Criminal Procedure Code, (V of 1898), S. 173--Power to arrest--Complaint can be filed before special Court--Nature of police report--Validity--Recording of information under Section 13(10) of Act in register of arrest and detention, mentioning names of persons arrested, giving details of information regarding crime itself amounts to registration of a criminal case on basis of which complaint can be filed before Special Court in nature of police report under Section 173 of Cr.P.C.--Appeal was partially allowed.

                                                                                                                        [P. 709] L

Mr. Abdul Rauf Rohaila, ASC for Appellant.

Mr. Isaac Ali Qazi, ASC for Respondent Nos.1-2.

Mr. Waqar Ahmed Khan, Addl. A.G. KPK for Respondent
No. 3.

Mr. Sohail Mehmood, DAG On Court Notice.

Date of hearing: 27.1.2015

Judgment

Nasir-Ul-Mulk, CJ.--Leave to appeal was granted against the judgment of the Peshawar High Court on 02.01.2006. The points of law for determination with the brief background as stated in the leave granting order are reproduced:--

“By the impugned judgment of the Peshawar High Court, dated 25.6.2003 in Writ Petition No. 85 of 2000, filed by the respondents, Farman Ali and another, case F.I.R. No. 5 dated 25.1.2000, registered against the respondents, under a number of provisions of the Central Excise Act, 1944 and the Rules framed thereunder, was declared to be without lawful authority and consequently, of no legal effect, on the grounds that cognizance of the said offences can be taken by the Special Judge, under sub-section (6) of Section 9-A of the Central Excise Act, 1944, only upon a complaint in writing by the Central Excise Officer and that Section 13 of the Act, though empowers the Central Excise Officer to arrest an accused, it does not provide for the registration of the first information report.

2.  The submissions made by Mr. Abdul Rauf Rohila, ASC for the petitioner, Deputy Director Customs Intelligence and Investigation, Peshawar, and Barrister Masood Kauser, for the respondents, raise the following questions of public importance:--

(i)      Whether the complaint mentioned in sub-section (6) of Section 9-A of the Central Excise Act, 1944, by which the Special Judge, can take cognizance, is to be equated with the “complaint” under Section 200 of Cr.P.C. and thus the procedure thereunder to be followed or charge sheet submitted by a police officer under Section 173 Cr.P.C. as provided under sub-section (11) of Section 13 of the Act?

(ii)     Whether in the absence of express provisions in the Central Excise Act, 1944, the Central Excise Officer is precluded from registration of a case?

(iii)    Whether the High Court was correct in holding that in view of the special procedure provided under Section 13 of the Act for the investigation of a crime, the first information report could not be registered?

(iv)    That when the Central Excise Officer has been empowered under sub-section (1) of Section 13 of the Act to arrest a person without warrant and for the investigation of a case to exercise the powers conferred under criminal procedure code upon officer incharge of a police station, whether the registration of the first information report could be declared illegal?

(v)     That even if the first information report has been rightly held to have been registered without lawful authority can the Special Judge not take cognizance of the offences under sub-section (6) of Section 9-A of the Act, upon complaint mentioned in sub-section (11) of Section 13 of the Act?

We, thus, grant leave to appeal to determine the above questions.”

2.  In order to appreciate the arguments advanced and to answer the questions formulated in the leave granting order it is necessary to reproduce the entire Section 13 of the Central Excise Act, 1944 (hereinafter referred to as “the Act”):--

“13. Power to arrest.--(1) Any Central Excise Officer authorized by the Central Board of Revenue in this behalf who has reason to believe that any person has committed an offence under this Act may arrest such person:

          Provided that the Central Excise Officer shall immediately intimate the fact of the arrest of a person to the Special Judge who may direct such Officer to produce that person at such time and place and on such date as the Special Judge Considers expedient and such Officer shall act accordingly.

(2) Notwithstanding anything contained in proviso to sub-section (1), any person arrested under this Act shall be produced before the Special Judge or, if there is no Special Judge within a reasonable distance, to the nearest Judicial Magistrate, within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Special Judge or, as the case may be, of such Magistrate.

(3) When any person is produced under sub-section (2) before the Special Judge, he may, on the request of such person, after perusing the record, if any, and after giving the prosecution an opportunity of being heard, admit him to bail on his executing a bond, with or without sureties, or refuse to admit him to bail and direct his detention at such place as he deems fit:

          Provided that nothing herein contained shall preclude the Special Judge from cancelling the bail of any such person at a subsequent stage if, for any reason, he considers such cancellation necessary, but before passing such order he shall afford such person an opportunity of being heard, unless for reasons to be recorded he considers that the affording of such opportunity shall defeat the purposes of this Act.

(4) When such person is produced under sub-section (2) before a Judicial Magistrate, such Magistrate may, after authorizing his detention in such custody, at such place and for such period as he considers necessary or proper for facilitating his earliest production before the Special Judge, direct his production before the Special Judge on a date and time to be fixed by him or direct such person to be forthwith taken to, and produced before, the Special Judge and he shall be so taken.

(5) Nothing in sub-section (3) or sub- section (4) shall preclude the Special Judge or the Magistrate from remanding any such person to the custody of the Central Excise Officer holding inquiry against that person if such Officer makes a request in writing, to that effect and the Special Judge or the Judicial Magistrate, after perusing the record, if any, and hearing such person, is of the opinion that for the completion of inquiry or investigation it is necessary to make such an order; provided that in no case the period of such custody shall exceed fourteen days.

(6) When any person is arrested under this Act, the Central Excise Officer shall record the fact of arrest and other relevant particulars in the register mentioned in sub-section (10) and shall immediately proceed to inquire into the charge against such person and if he completes the inquiry within twenty-four hours of his arrest, excluding the time necessary for journey as aforesaid, he may, after producing such person before the Special Judge or the nearest Judicial Magistrate make a request for his further detention in his custody.

(7) While holding an inquiry under sub- section (6), the Central Excise Officer shall exercise the same powers as are exercisable by an officer in charge of a police-station under the Code of Criminal Procedure, 1898 (Act V of 1898), but such Officer shall exercise such powers subject to the foregoing provisions of this section while holding an inquiry under this Act.

(8) If the Central Excise Officer, after holding an inquiry as aforesaid, is of the opinion that there is no sufficient evidence or reasonable ground for suspicion against such person, he shall release him on his executing a bond, with or without sureties, and shall direct such person to appear, as and when required, before the Special Judge, and make a report to the Special Judge for the discharge of such person and shall make a full report of the case to his immediate superior.

(9) The Special Judge to whom a report has been made under sub-section (8) may, after the perusal of record of the inquiry and hearing the prosecution, agree with such report and discharge the accused or, if he is of the opinion that there is sufficient ground for proceeding against such person, proceed with his trial and direct the prosecution to produce evidence.

(10) The Central Excise officer empowered to hold inquiry under this section shall maintain a register to be called “Register of Arrests and Detention” in the prescribed form in which he shall enter the name and other particulars of every person arrested under this Act, together with the time and date of arrest, the details of the information received, the details of things, goods or documents, recovered from his custody, the name of the witnesses and the explanation, if any, given by him and the manner in which the inquiry has been conducted from day to day; and such register or authenticated copies of its aforesaid entries shall be produced before the Special Judge whenever such Officer is so directed by him.

(11) After completing the inquiry, the Central Excise Officer shall as early as possible, submit to the Special Judge a complaint in the same form and manner in which the officer in charge of a police-station submits a report before a Court.

(12) Any Magistrate of the first class may record any statement or confession during inquiry under this Act, in accordance with the provisions of Section 164 of the Code of Criminal Procedure, 1898 (Act V of 1898)

(13) Without prejudice to the foregoing provisions of this section, the Federal Government may, by notification in the official Gazette, authorize any other officer working under the Central Board of Revenue to exercise the powers and perform the functions of a Central Excise Officer under this section, subject to such conditions, if any, that it may deem fit to impose.”

3.  Perusal of Section 13 of the Act would show that it provides a comprehensive procedure for inquiry into an offence committed under the Act, right up to the filing of the complaint before the Special Judge. The Central Excise Officer has been conferred the power to arrest a person whom he believes to have committed a crime under the Act. Upon arrest he is required to produce the accused before the Special Judge within 24 hours. The Special Judge may admit the accused to bail or direct his detention “at such place as he deems fit.” Three provisions of Section 13 sub-sections (6), (8) and (10) are relevant for the present purpose. First, under sub-section (6) upon effecting arrest of a suspect the Central Excise Officer is required to record the fact of arrest and other relevant particulars in the register as are mentioned in sub-section (10) and then to proceed with inquire into the allegations. Sub-section (10) requires the maintenance of register called the “Register of Arrests and Detention” in the prescribed form where complete particulars of the case are to be mentioned, including the person arrested, the time and date of arrest, things and documents recovered and taken into custody, details of the information received and the manner in which the inquiry had been conducted. If the Central Excise Officer does not proceed under sub-section (8) to release the accused for lack of sufficient evidence he is required under sub-section (11) to submit a complaint to the Special Judge “in the same form and manner in which the officer in charge of a police station submits a report before a Court.”

4.  The High Court had set aside the F.I.R. in the case on the ground that the Act does not make any provision for it. The learned counsel for the appellant submitted that the provision of sub-section (6) read with sub-section (10) of the Act when examined in juxtaposition with Section 154 of the Criminal Procedure Code bears material similarity between the two and thus the Central Excise Officer is also empowered to register a criminal case in the shape of F.I.R. We need to take a look at Section 154 of the Criminal Procedure Code:-

“Information in cognizable cases.--Every information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf.”

5.  The above provision does not mention the phrase “First Information Report” (F.I.R.) but provides for entry of the information in a book in the prescribed form. It is the Police Rules, 1934 which makes reference to F.I.R. Rule 24.1 of the Rules read with Rule 24.5 of the Rules provides for the ‘First Information Report Register’ to be maintained in Form 24.5 prescribed in the Rules. This only provides a format for formal recording of the information whereas the power to record the same and to further investigate a cognizable offence is provided for in Sections 154, 156 and 157 of the Code of Criminal Procedure. The Police Rules obviously cannot be applied to the proceedings under Section 13, or for that matter, any other provision of the Act. The absence of F.I.R. however does not, in any way, take away or effect the powers of the Central Excise Officer to arrest an accused under the Act, to carryout inquiry into an offence and to file complaint before the Special Court. Sub-section (10) of Section 13 of the Act in fact provides for its own Register called “Register for Arrest and Detention” in which details referred to above are to be mentioned. Thus where the Form prescribed under the Police Rules for recording of the F.I.R. may not be used by the Central Excise Officer for recording information regarding the offence under the Act its exclusion will have no bearing on the criminal proceedings.

6.  It appeared from the arguments of the learned counsel for the appellant that by setting aside the registration of the F.I.R. the High Court had annulled the entire criminal proceedings. Such an impression perhaps is being gathered as ordinarily when any F.I.R. is quashed by the Court the entire criminal proceedings are set at naught. By the impugned judgment the High Court has set aside the F.I.R. but not the criminal proceedings. The proceedings are not liable to be annulled simply because the Central Excise Officer had used the format of F.I.R. prescribed in the Police Rules. The Excise Officer can still file complaint under sub-section (11) of Section 13 of the Act before the Special Judge, based on the information recorded under sub-section (10).

7.  As regards the nature of the complaint to be filed by the Central Excise Officer to the Special Judge for the trial of the accused the same has been expressly equated with the police report submitted by the officer in charge of a police station under Section 173 of the Criminal Procedure Code. The complaint is not to be treated as one filed under Section 200 of the Criminal Procedure Code. It is in the

nature of police report (challan) submitted by the police under the Criminal Procedure Code and has all the trappings of such a police report and the trial Court shall proceed upon it accordingly.

8.  It follows that the High Court may have been technically correct in holding that the case could not have been registered in the form of First Information Report. However, setting aside of the registration of the case in that format did not amount to quashment of the criminal proceedings against the respondents. The initiation of criminal proceedings, its investigation and trial is to be conducted in accordance with the procedure laid down in Section 13 of the Act. The very recording of the information under Section 13(10) of the Act in the register of arrest and detention, mentioning the names of the persons arrested, giving details of the information regarding the crime itself amounts to registration of a criminal case on the basis of which the complaint can be filed before the Special Court in the nature of police report under Section 173 of Criminal Procedure Code. The appeal is, therefore, partially allowed and the impugned judgment modified to the above extent.

(R.A.)  Appeal allowed