iminal Appeal No397 of 1993
From the Judgment and Order dated 11790 of the Calcutta High Court in Crl
Revision No 1453 of 1987
DN Mukherjee D Sinha and JR Das for the Appellant
Sukumar Guha and AK Sengupta for the Respondents
The Judgment of the Court was delivered by AHMADI J
Special leave granted
In this appeal by special leave two questions arise for our consideration namely i whether a Special Court constituted under Section 12A of the hereinafter called the Act  is empowered to exercise powers under sub section 5 of Section 167 of Code of Criminal Procedure 1973  the Code  for short in relation to an accused person forwarded to it under clause b of sub section 1 of section 12AA of the Act and ii whether a Special Court can notwithstanding the fact that the charge sheet has been filed after the expiry of the period of six months from the date of arrest of the accused person or the extended period take cognizance of the offence and proceed to try and punish the accused person These two questions arise in the backdrop of the following facts
A police party headed by an Inspector of Police raided the business premise 574 and godown of the respondents on March 16 1984 and in the presence of respondent Faguni Dutta seized certain essential commodities stored in contravention of certain orders issued under section 3 read with section 5 of the Act
The accused Falguni Dutta was arrested on the same day for the commission of an offence punishable under section 71 a ii of the Act but the charge sheet was submitted after the expiry of the period of six months from the date of arrest on September 30 1986
The learned Judge presiding over the Special Court Constitute of under section 12A of the Act took cognizance of the offence on March 13 1987 on the basis of the charge sheet submitted under section 173 of the Code
Thereupon the accused persons moved an application before the learned Special Judge for quashing the proceedings on the ground that since the case was triable as a summons case in view of section 12AA1 f of the Act clause 5 of section 167 of the Code was attracted which enjoined that the proceedings be dropped
The learned Special Judge relying on a decision of a learned Single Judge of the High Court in Kanta Dev vs The State of West Bengal 1986 Calcutta Criminal Law Reporter 158  1986 1 CHN 267 rejected the application on July 24 1987 holding that the provision of section 167 5 of the Code had no application to a case initiated for the commission of an offence punishable under section 7 1 a ii of the Act
We may incidentally point out that the same view was expressed in Babulal Agarwal vs State 1987 1 CHN 218
Being aggrieved by the rejection of the application the accused preferred a Revision Application to the High Court challenging the legality of the said order
A learned single Judge of the High Court placing reliance on a Division Bench decision of the High Court of Andhra Pradesh in the case of Public Prosecutor High Court of Hyderabad  etc
vs Anjaneyulu and etc
held that sub section 5 of section 167 of the Code stood attracted and the learned Special Judge ought to have stopped the further investigation on the expiry of six months and ought to have discharged the accused
He therefore set aside the order of the learned Special Judge and also quashed the prosecution and discharged the accused
It is against this order of the High Court that the present appeal is preferred
We may incidently mention that when the learned Single Judge was disinclined to follow the earlier two decisions of other learned single Judges of the High Court the proper course was to refer the matter to a Division Bench for decision
however has now lost significance in view of the subsequent decision of the Division Bench in Jnan Prakash Agarwala vs State of WestBengal 1992 1 CHN 213 taking a contrary view
In the said case the Division Bench has taken the view which the learned Single Judge has taken in the present case
We will deal with these decisions in some detail hereafter
At the outset we deem it appropriate to notice the relevant provisions of the 575 concerned statutes
The Act was enacted to provide in the interest of the general public for the control of production supply and distribution of and trade and commerce in certain commodities
Section 3 inter alia lays down that if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices it may by order provide for regulating and prohibiting the production supply and distribution thereof and trade and commerce therein
By section 4 it is provided that an order made under section 3 may confer powers and impose duties upon the Central Government or the State Government or officers and authorities of the Central Government or State Government and may contain directions any State Government or to officers and authorities thereof as to the exercise of any such powers or the discharge of any such duties
The Central Government is empowered by section 5 to direct that the power to make orders or issue notifications under section 3 shall in relation to such matters and subject to such conditions if any as may be specified in the direction be exercisable inter alia by such State Government as may be specified in the direction
In exercise of the power so conferred certain orders were issued by the State Government in regard to certain essential commodities from time to time
Section 7 prescribes the penalties for the contravention of any order made under section 3
The relevant portion of section 7 with which we are concerned reads as under 7 1 If any person contravenes any order made under section 3 a he shall be punishable i in the case of an order made with reference to clause i of subsection 2 of that section with imprisonment for a term which may extend to one year and shall also be liable to fine and iiin the case of any other order with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine
In the present case the accused came to be charged under section 7 1 a ii of the Act
Having regard to the fact that the punishment prescribed for the said offence extends to seven years and fine the case would fall within the definition of warrant case under section 2x of the Code
This becomes evident if we read the definitions of summons case  and  warrant case  together
They are as under 576 2 w Summons case means a case relating to an offence and not being a warrant case
2x Warrant case means a case relating to an offence punishable with death imprisonment for life or imprisonment for a term exceeding two years
 However by Amending Act 18 of 1981 the Legislature for dealing more effectively with persons indulging in antisocial activities like hoarding and blackmarketing and for combating the evil of inflationary prices considered it necessary to make special provisions for a temporary period of five years extended by another five yearsnamely to provide i for the control in a summary way of all offences under the Act and iifor the constitution
for the purposes of such trial of Special Courts consisting of a Single Judge
To achieve this objective section 12A was amended with a view to empowering the State Government for the purpose of providing speedy trial of the offences under the Act to constitute as many Special Courts as may be necessary for such area or areas to be to be specified in the notification
Section 12AA which too was inserted by the said Amending Act begins with a non obstance clause and provides that all offences under the Act shall be triable only by the Special Court constituted for the area in which the offence was committed or where there are more Special Courts than one in such area by one of them as may be specified in this behalf by the High Court
Clause b of sub section 1 of section 12AA next provides that where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub section 2 or subsection 2A of Section 167 of the Code such Magistrate may authorise the detention of such person such custody as he thinks fit for a period
not exceeding 15 days in the whole where such Magistrate is a Judicial Magistrate and 7 days in the whole where such Magistrate is an Executive Magistrate unless his detention for such period is unnecessary
Clause c of that sub section is relevant for our purpose and may be extracted c The Special Court may subject to the provisions of clause d of this Section exercise in relation to person forwarded to it under clause b the said power which a Magistrate having jurisdic 577 tion to try a case may exercise under section 167 of the Code in relation to an accused person in such case who has been forwarded to him under this section
 Sub clause dprovides that no court other than the Special Court or the High Court shall release an accused on bail
Sub clause f of this sub section is also relevant and reads as under f All offences under this Act shall be tried in a summary way and the provisions of sections 262 to 265 both inclusive of the Code shall
as far as may be
apply to such trioal Provided that in the case of any conviction in a summary trial under this section it shall be lawful for the Special Court to pass such sentence of imprisonment for a term not exceeding two years
 It will thus be seen that while the penalty provided for an offence under section 71 a ii extends to seven years and fine by virtue of clause f of subsection 1 of section 12AA if the offence is tried in a summary way applying the provisions of sections 262 to 265 of the Code the penalty would be restricted by the proviso to a maximum of two years which would it is argued bring the case within the meaning of a summons case  as defined in section 2w of the Code thereby attracting sub section 5 of section 167 of the Code
It would be advantageous to reproduce sub section 5 of section 167 of the Code
It reads as under If in any case triable by a Magistrate as a summons case the investigation is not concluded within a period of six months from the date on which the accused was arrested the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice the continuation of the investigation beyond the period of six months is necessary
 To complete reference to the provisions of the Act we may also state that section 10A posits that notwithstanding anything contained in the Code every offence punishable under the Act shall be cognizable and non bailable
Section 11 provides that cognizance of an offence under the Act shall be taken only on a written report
Section 12AC makes the provisions of the Code applicable to proceedings be fore a Special Court unless otherwise provided
These in brief are 578 the relevant provisions of the Act and the Code with which we are concerned
It may here be mentioned that section 12A was first inserted by Amendment Act of 1964
It then empowered the Central Government to specify any order under section 3 to be a special order the contravention whereof may be tried summarily to which the provisions of sections 262 to 265 of the Code were made applicable
The proviso stipulated that in the case of conviction in a summary trial it shall be lawful for the Magistrate to pass a sentence of imprisonment not exceeding one year Subsequently by Amendment Act 18 of 198 1
section 12A was substituted by the present provisions and new sections 12AA to 12AC were inserted
The avowed object of these legislative changes was expeditious disposal of offences under the Act by Special Courts employing summary procedure and applying the provisions of the Code to such trials save as otherwise provided
This enabled the Special Courts to take cognizance of the offences under the Act without a formal order of commitment
It thus becomes clear from the plain language of the provisions introduced by Act 18 of 1981 that the legislature desired to ensure that all offences under the Act were tried by the Special Court Constituted under Section 12A in a summary manner applying the provisions of sections 262 to 265 of the Code and further provided that in case of conviction the sentence shall not exceed two years bringing the offence within the definition of a summons case under the Code
But for the insertion of section 12A in its present form and section 12AA the offence under section 7 1 a ii of the Act would have attracted the definition of a warrant case
It is therefore obvious that the Amending Act 18 of 1981 has brought about a substantial change
The position in law as emerging after the amendment of the Act by Act 18 of 1981 is crystal clear namely that on the constitution of special Courts all offences under the Act are triable only by the Special Court for the Area in which the offence has been committed
Section 12AA 1 b provides that where a person accused of an offence under the Act is forwarded to a Magistrate under subsection 2 or sub section 2A of section 167 of the Code such Magistrate is empowered to authorise the detention of such person in such custody as he thinks fit for a period not exceeding 15 days in the whole where such Magistrate is a Judicial Magistrate and 7 days in the whole where he is Executive Magistrate
Clause c of that sub section provides that the Special Court may exercise in relation to the person forwarded to it under clause b the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code in relation to an accused person in such case who has been forwarded to him under that section
Section 12AC says that the provisions of the Code shall apply to proceedings before a Special Court save as otherwise provided in the Act
A conjoint reading of these provisions makes it clear that after the constitution of 579 Special Courts all offences under the Act have to be tried by that court in a summary way by applying the provisions of sections 262 to 265 both inclusive of the Code
The proviso places a fetter on the power of the Court in the matter of passing a sentence on conviction namely that notwithstanding the fact that section 7 1 a ii prescribes a punishment extending upto seven years and fine Special Court shall not pass a sentence of imprisonment for a term exceeding two years
It is this proviso which attracts the definition of a summons case the trial whereof must be undertaken in accordance with the procedure out lined in Chapter XX of the Code
Chapter XXI of the Code deals with Summary Trials
Section 262 of the Code which outlines the procedure for summary trials in terms states that the procedure specified in the Code for the trial of summons case shall be followed except otherwise provided
Section 167 5 says that if in any case triable as a summons case the investigation is not concluded within a period of six months from the date on which the accused came to be arrested
the Magistrate shall make an order stopping further investigation into the offence unless the Magistrate for special reasons and in the interests of justice considers it necessary to permit continuation of the investigation
The prosecution in question being a summons case triable in a summary manner as per procedure outlined in sections 262 to 265 of the Code which in turn attracts the procedure meant for summons case it is obvious that the power conferred by sub section 5 of section 167 can be invoked by the Special Court by virtue of clause c of section 12AA 1 of the Act which in terms states that the Special Court may exercise the same powers which a Magistrate may exercise under section 167 of the Code
Thus a special Court is expressly empowered by clause c of section 12AA 1 to exercise the same powers which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code in relation to an accused person who has been forwarded to him under that provision
We have therefore no manner of doubt that the High Court was right in concluding that section 167 5 of the Code was attracted in the present case and the Special Court was entitled to exercise the power conferred by that sub section
That being so the view taken by the Division Bench of the Calcutta High Court in the case of Jnan Prakash supra insofar as it relates to the application of section 167 5 to an offence under section 7 1 a ii of the Act triable by the Special Court constituted under section 12A of the Act cannot be doubted
That is also the view of the High Court of Andhra Pradesh in the case of Public Prosecutor High Court of Hyderabad supra
Therefore the Special Court can stop further investigation into the offence if the investigation is not concluded within a period of six month from the day of arrest of the accused person unless for special reasons and in the interest of justice the continuation of the investigation beyond that period is necessary
In the present case the officer making the investigation had not sought the permission of the Special Court to continue with the investigation even after the expiry of six months
The object of 580 this sub section clearly is to ensure prompt investigation into an offence triable as summons case to avoid hardship and harassment to the accused person
Both the High Courts of Calcutta and Andhra Pradesh have taken the view that after the amendment of the Act by Act 18 of 1981 and the introduction of section 12AA the power conferred on the Magistrate under section 167 5 of the code is exercisable by the Special Court constituted under section 12A of the Act
We also concur with the High Court of Calcutta that the two decisions rendered by the learned Single Judges of that Court earlier in point of time did not lay down the correct law
Similarly the Division Bench of the High Court of Andhra Pradesh was also right in holding that sub section 5 of section 167 of the Code would be applicable to prosecutions under the Act triable by the Special Court
The taxes us to the question whether the Special Court canbeside directing stoppage of investigation entertain and act on a charge sheet or a police report submitted under section 173 2 of the Code in such cases
The expression 1 police report  has been defined under the Code to mean a report forwarded by a police officer to a Magistrate under sub section 2 of section 173 section 21
Section 173 lays down that every investigation under Chapter XII shall be completed without unnecessary delay and as soon as it is completed the officer incharge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report a report in the form prescribed by the State Government
It will thus be seen that the police report under section 1732 has to be submitted as soon as the investigation is completed
Now if the investigation has been stopped on the expiry of six months or the extended period if any by the Magistrate in exercise of power conferred by sub section 5 of section 167 of the Code the investigation comes to an end and therefore on the completion of the investigation section 1732 enjoins upon the officer in charge of the police station to forward a report in the prescribed form
There is nothing in sub section 5 of section 167 to suggest that if the investigation has not been completed within the period allowed by that sub section the officer in charge of the police station will be absolved from the responsibility of filing the police report under section 1732 of the Code on the stoppage of the investigation The High Court of Andhra Pradesh rightly observed in paragraph 13 of the Judgment as under Under the new Code in addition to definition for investigation  in section 2h a separate definition for police report  is given by section 2r
This coupled with the newly introduced sub section 5 of section 167 brings out the distinction between investigation by the police and the police report on which a court is to take cognizance
The report cannot now be said to be an integral part of 581 investigation
The introduction of section 167 5 in the Code cannot have the effect of invalidating the investigation done within the period of six months or enabling the court to stopping the filing of police report under section 173 2
If the investigation done during the period of six months discloses an offence a police report may be founded on it and the court can take cognizance of the same in Hussainara Khantoon  Ors
vs Home Secretary State of Bihar Patna 1 9791 3 SCR 760 this Court held that the investigation done within the period of six months is not rendered invalid merely because the investigation is not completed and further investigation is stopped
The exact words used are   in such a case the Magistrate is bound to make an order stopping furthe r investigation in that event only two courses would be open either the police must immediately proceed to file a chargesheet if the in vestigation conducted till then warrants such a course or if no case for proceeding against the under trial prisoner is disclosed by the investigation the undertrial must be released forthwith from detention
 We therefore concur with the view taken by the Andhra Pradesh High Court in this regard
In the result we partly allow this appeal
While we agree with the view taken by the High Court of Calcutta that in the case of an offence punishable under section 71 a ii of the Act which is tried by a Special Court constituted under section 12A the provision of sub section 5 of section 167 of the Code gets attracted if the investigation has not been completed within the period allowed by that sub section but we find it difficult to sustain that part of the order of the High Court by which the order of the Special Court taking cognizance of the offence on the police report ie charge sheet submitted under section 173 2 of the Code came to be quashed
We set aside that latter part of the order and hold that the Special Court was competent to entertain the police report restricted to six months investigation and take cognizance on the basis thereof
We therefore direct that the Special Court will proceed with the trial from that stage onwards and complete the same as early as possible in accordance with law
Appeal partly allowed


Summary:
The mother of the respondent minors acting as their guardian sold their land while they were still minors to the appellant under a registered sale deed dated July 301964
The respondents upon attaining majority sued the appellant for possession of the said land on the ground that the sale thereof having been made without the permission of the court was void
The appellant in his written statement and at the time of hearing of the suit contended that the sale deed had been attested by the father of the respondents and the ale should therefore he deemed to have been a sale by the legal guardian of the respondents
It was also pleaded that the sale had been for legal necessity and the benefit of the respondents
It was also alleged that the suit was barred by limitation because the sale was voidable and not void and the suit had not been brought within three years of each of the respondents attaining majority
The trial court framed appropriate issues and came to the conclusion that it had not been proved that the sale was for legal necessity or for the benefit of the respondents that the sale by the respondent s mother without the permission of the court was void and the sale was void and not voidable and the suit was therefore in time and was decreed
590 The appeal filed by the appellant before the Additional Distt
Judge and the High Court failed
The appellant therefore preferred this appeal by special leave
Dismissing the appeal this court HELD  1
The provisions of section 8 of the Hindu Minority and Guardianship Act 1956 are devised to fully protect the property if a minor even from the depredations of his parents
Section 8 empowers only the legal guardian to alienate a minor s immovable property provided it is for the necessity or benefit of the minor or his estate and it further requires that such alienation shall be effected after the permission of the Court has been obtained
It was difficult therefore to hold that the sale by reason of the fact that the mother of the minor respondents signed the sale deed and the father attested it was voidable not void
592 G 3
The attestation of the sale deed by the father showed that he was very much existent and in the picture
If he was then the sale by the mother notwithstanding the fact that the father attested it cannot he held to be sale by the father and natural guardian satisfying the requirements of section 8
592 E Jijabai Vithalrao Gajre vs Pathankhan  Ors   distinguished
662 A