Karnataka High Court

Milap Jain @ Milap Kumar Jain vs Superintendent Of Police on 25 January, 2022

Bench: M.Nagaprasanna

                         1



  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 25TH DAY OF JANUARY, 2022

                      BEFORE

      THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

          CRIMINAL PETITION No.7603 OF 2016

BETWEEN

MILAP JAIN @ MILAP KUMAR JAIN
@ MILAP RATAN CHAND JAIN,
S/O RATTAN CHAND JAIN,
AGED 51 YEARS,
PROPRIETOR,
M/S TIRUPATI EXPORTS,
NO.27, INDUSTRIAL ESTATE,
CHUNCHAGHATTA ROAD,
KONANAKUNTE,
BANGALORE-560078                    ... PETITIONER

(BY SRI KIRAN S JAVALI, ADVOCATE A/W.
    SRI CHANDRASHEKARA K., ADVOCATE
    (PHYSICAL HEARING))

AND

SUPERINTENDENT OF POLICE
CENTRAL BUREAU OF INVESTIGATION,
BELLARY ROAD,
BANGALORE-560036.                ... RESPONDENT

(BY SRI P. PRASANNA KUMAR, ADVOCATE
    (PHYSICAL HEARING))

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER
DATED 16.09.2013 PASSED IN C.C.NO.33942/2011 BY
                            2



THE XVII ACMM AND SPL. COURT FOR CBI, BANGALORE
AND CONFIRMED BY ORDER DATED 20.08.2016 IN
CRL.R.P.NO.333/2013 BY THE XXXII ADDL. CITY CIVIL
AND S.J., AND SPL. JUDGE FOR CBI CASES, BANGALORE
(CCH-34)   AND   DISCHARGE    THE   PETITIONER  IN
C.C.NO.33942/2011 BY THE XVII ACMM AND SPL. COURT
FOR CBI, BANGALORE.

    THIS CRIMINAL PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS AND COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :-
                        ORDER

The petitioner is before this Court calling in

question the order dated 16.09.2013 passed by the XVII

Additional Chief Metropolitan Magistrate and Special

Court for CBI cases, Bangalore in C.C.No.33942/2011

and the order dated 20.08.2016 passed by the XXXII

Additional City Civil and Sessions Judge and Special

Judge for CBI Cases, Bangalore in Crl.R.P.No.333/2013

declining to discharge the petitioner from criminal trial

in C.C.No.33942/2011.

2. Brief facts as projected by the prosecution

which are germane for disposal of this criminal petition

are as follows:-

A case was registered against several officers of

the Department of Central Excise working in the Excise

Commissionerate, Bangalore along with the petitioner,

the proprietor of M/s.Tirupati Exports, for offences

punishable under Sections 420, 468, 471 of the IPC

read with Sections 132, 135 and 135(A) of the Customs

Act, 1962. Pursuant to registration of FIR against all

the accused, the CBI filed a charge sheet on

05.11.2011, against the petitioner only in

C.C.No.33942/2011. The allegation against the

petitioner in the charge sheet was that he had entered

into a criminal conspiracy with several others during

the period 2008-2009 and in furtherance of the same,

the public servants by abusing their respective official

positions, falsely certified the declarations made by the

petitioner in the export documents as genuine which

facilitated the petitioner in permitting/availing duty

drawback benefit to the tune of Rs.1.74 crores against

exports in the name of proprietary concern M/s.Tirupati

Exports without exporting anything, which declared a

quantity of 100% cotton knitted T-Shirts as mentioned

in the export documents.

3. This alleged fraud came to light on 10.06.2009

when the Directorate of Revenue Intelligence (DRI),

Zonal Unit, Bangalore based on specific information

intercepted the containers of M/s Tirupati Exports

booked through M/s Ankita Trading FZE, UAE through

Tuticorin Port and seized the containers. On

verification, it was seen that the containers did not

contain the declared number and the cartons were

empty and the quantity in some of the cartons were far

less than the declared quantity in the export

documents.

4. The case at hand concerned 22 containers

exported by M/s Tirupati Exports without actually

exporting and drawing a duty drawback from the

customs department to the tune of Rs.1,74,28,414/-.

During the period 2008-2009 the petitioner appears to

have exported factory stuffed bought out non duty paid

100% cotton knitted men's T-Shirts to M/s Ankita

Trading, UAE which were covered under 14 shipping

bills, dishonestly declaring the quantity in the export

documents only with a view to cheat the Central

Government by availing the aforesaid drawback. The

drawback amount so released by the Customs House

was credited to the current account of M/s Tirupati

Exports. It was alleged that the petitioner being the

proprietor of M/s Tirupati Exports had committed

offence of cheating, forging the documents for the

purpose of cheating, using the forged documents as

genuine and making false declaration to the customs

authorities and claiming false duty drawback. On

detection of the fraud by the Revenue Intelligence, the

petitioner confessed and paid a sum of Rs.12 lakhs in

two installments and the balance amount of

Rs.98,34,264/- still remained and the same was

declared to have been fraudulently derived by the

petitioner by cheating Government of India. The

investigation conducted by the CBI did not reveal any

criminality on the part of public servants and charge

sheet is filed only against the petitioner on 05.11.2011.

5. The Special Court took cognizance of the offence

against the petitioner and declined to discharge the

petitioner and ordered framing of charges. Against the

said order of framing of charges by the Special Court,

the petitioner sought discharge from the case which was

considered and rejected by the Special Court on

16.09.2013. Against the said order of declining to

discharge, the petitioner preferred a Criminal Revision

Petition in Crl.R.P.No.333/2013. The said petition

having been rejected by an order of the Revisional

Authority on 20.08.2016, the petitioner knocked the

doors of this Court calling in question both the orders

(supra).

6. Heard Sri Kiran S.Javali, learned counsel along

with Sri Chandrashekara.K, learned counsel appearing

for the petitioner and Sri P.Prasanna Kumar, learned

counsel representing the respondent/CBI.

7. The learned counsel appearing for the petitioner

would contend that the CBI has no jurisdiction to

investigate into the offences under the Customs Act,

1962. Sanction that is accorded by the Competent

Authority was for setting the criminal law in motion as

available under the Customs Act. The offences alleged

under the Customs Act were non-cognizable and

bailable prior to 10.05.2013. The amendment to the

Customs Act came about only on 10.05.2013.

Therefore, the procedure stipulated for non-cognizable

offences has been violated. It is his further contention

that Sections 135 r/w 114 of the Customs Act are

matters equivalent to offences punishable under

Sections 420, 468 and 471 of the IPC. The respondent-

CBI could not have usurped the powers provided under

the Customs Act and create new proceedings before a

Court which has no jurisdiction. He would add that the

principle provision invoked being that of the Customs

Act, the jurisdiction to try was exclusively to be with the

Special Court for Economic Offences. Any other

proceeding is bad in law.

8. On the other hand, the learned counsel

representing the respondent would vehemently refute

the contention and submit that the Government of India

has by notification empowered the CBI to inquire into

offences concerning violation of Customs Act as well.

The learned counsel would submit that the offences

alleged are both cognizable and non-cognizable and

therefore, Section 155(4) of the Cr.P.C. would become

applicable. The allegations against the petitioner is so

grave that any such technical contention should not be

permitted to make him walk scot-free.

9. I have given my anxious consideration to the

submission made by the learned counsel for the

respective parties and perused the material on record

10. In furtherance of the aforesaid contention

advanced by the learned counsel for the petitioner and

the respondent what is required to be noticed is that,

whether the CBI can continue to try offences under the

Customs Act, 1962, against the petitioner who is a

private individual and whether the procedure followed in

conducting proceedings which involved both cognizable

and non-cognizable offences is correct?

11. On 29.10.2010, a case was registered against

several officers of the Central Excise and the petitioner

who was the proprietor of M/s.Tirupati Exports for

offences punishable under Sections 420, 468 and 471 of

IPC as also under Sections 132, 135 and 135(A) of the

Customs Act, 1962. Based upon the investigation, a

final report was filed under Section 173 of the Cr.P.C.

wanting to conduct a trial only against the petitioner

and found nothing against the officers of the Central

Excise. When the respondent filed a final report before

the Special Court, the petitioner sought discharge from

the hands of the Special Court which came to be

rejected. This was challenged by the petitioner by filing

a criminal revision petition in Crl.R.P.No.333/2013

before the Sessions Court. This also came to be rejected

by an order dated 20.08.2016. It is the rejection of the

aforesaid discharge application that has driven the

petitioner before this Court in the present proceedings.

12. The petitioner reiterates those very grounds

that were urged before the respective Courts in the

impugned proceeding. The Government of India has by

notification issued under the Delhi Special Police

Establishment Act, 1946 permits the Central Bureau of

Investigation to enquire into offences under the

Customs Act, 1962 and various other enactment

including the offences punishable under the Indian

Penal Code as well. This notification is issued under

Section 3 of the Delhi Special Police Establishment Act,

1946. Section 3 of the Act reads as follows:

           "3.    Offences   to      be   investigated   by
     special     police   establishment.--The Central

Government may, by notification in the Official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment."

Section 3 empowers the Government to issue such

notification in the official gazette specifying offences or

class of offence that could be investigated by the Delhi

Special Police Establishment. The aforesaid notification

is one such issued in terms of Section 3. Therefore, the

CBI has been empowered by issuance of appropriate

notification.

13. It is also germane to notice that this Court in

MANOHAR CHATLANI V. RAMA T. HARPALANI1, while

considering an identical argument has held as follows:

"6. Having heard learned Counsel for partied with reference to adjudicatory proceedings and contents of charge sheet filed against petitioners, I formulate following points for determination:--

1) Whether initiation of investigation by C.B.I., and consequent prosecution are without jurisdiction, in view of the fact adjudicatory proceedings in the matter of levy of penalty and collection of duty are decided in favour of petitioner and attained finality by virtue of orders passed by CEGAT and the Supreme Court?

2) Whether offences alleged against petitioners would fall within the purview of section 193 IPC?

3) Whether C.B.I., could not have investigated into the matter, in the absence of complaint under section 195 Cr. P.C.?

4) Whether C.B.I., established under the Delhi Special Police Establishment Act, 1946, in the absence of notification by State Government had power to investigate into the matter?.

ILR 2008 KAR 2466

Regarding point No. 1:

7. This is essentially question of fact and law. At the first instance, let me deal with fact situation.

On careful consideration of order-in-original and order passed by CEGAT, it is seen, department had alleged accused No. 1 had evaded payment of Central Excise duty by adopting following methods:--

I. Under valuation of goods.

II. Clubbing of clearances.

III. Clandestine clearances.

8. The petitioners in order to substantiate Favourite Mannequin Company was in existence, had filed certain affidavits, as alleged in charge sheet. The Collector of Central Excise has answered issues relating to 'undervaluation' and 'clubbing of clearances' in favour of II-petitioner and issue relating to 'clandestine clearances' in favour of Department and confirmed levy of penalty.

In the appeal, CEGAT has decided these issues separately. The issues relating to 'undervaluation' and 'clubbing of clearances' are answered in favour of petitioner-II. On the issue relating to 'clandestine clearances', CEGAT has remanded the matter to Collector of Central Excise to determine quantum of penalty if clandestine clearances are more. The relevant portion of the order-in-appeal found at para 16, reads thus:--

"16. We feel that as regards the plea for enhancement of penalty is concerned we notice that the matter pertaining to clandestine removal having been remanded, it would be proper in the facts and circumstances to direct the Collector to re-determine the quantum of penalty if the clandestine removals are found to be more than what has been confirmed in the impugned order."

Therefore, submission of learned Counsel for petitioners, adjudicatory proceedings as they relate to 'clandestine removal' are decided in favour of II-petitioner, cannot be accepted.

9. The next question for determination is when civil proceedings are concluded, whether criminal proceedings could be initiated on the issues conclusively adjudicated upon by civil Courts.

The Supreme Court in the case of Iqbal Singh Marwah v. Meenakshi Marwah, reported in (2005) 4 SCC 370, relevant page 389, at para 32, has held:--

"32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given.

There is neither any statutory provision nor any legal principle that the findings recorded

in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under section 476 of the old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras give a complete answer to the problem posed:

"15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard- and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.

16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is

that it is undesirable to let things slide till memories have grown too dim to trust.

This, however, is not a hard-and-fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished."

In the case on hand, CEGAT remanded the matter pertaining to clandestine clearances to the Collector of Central Excise to redetermine quantum of penalty if clandestine clearances are found to be more than what has been confirmed in the order- in-original. The II-petitioner has not challenged this order. Therefore, findings recorded by the Collector of Central Excise and CEGAT and matter pertaining to clandestine clearances have attained finality as far as II-petitioner is concerned. The remand is only for limited purpose to redetermine quantum of penalty if clandestine clearances are found to be more than what has been confirmed in the order- in-original. Therefore, petitioners cannot contend matter pertaining to clandestine clearances has been decided in favour of II- petitioner.

The matter pertaining to clandestine clearances has been decided in favour of Department. The Collector of Central Excise has to redetermine quantum of penalty if

clandestine clearances are found to be more than what has been decided in the order-in- original. In these circumstances, petitioners cannot find fault with the C.B.I., to investigate into falsity or otherwise of affidavits filed by petitioners. For these reasons, I answer point No. 1 against petitioners.

Regarding Point No. 2:

10. The learned Counsel for petitioners, referring to section 14(3) of Central Excise Act, 1944, has contended Central Excise Officer, includes Collector of Central Excise and proceedings before him are judicial proceedings, within the meaning of sections 193 and 199 IPC. The learned Counsel has contended in the case on hand, Collector of Central Excise had received and recorded evidence. Therefore, if accused had given false evidence or fabricated evidence for the purpose of being used in proceedings before Collector of Central Excise and offences would fall within the purview of section 193 IPC. Therefore, in the absence of complaint under section 195(2) Cr. P.C., the Court below ought not have taken cognizance of offences alleged against petitioners and the impugned proceedings are void ab initio.

11. In order to appreciate this contention, it is necessary to advert to facts. The petitioners are alleged to have filed false and fabricated affidavits before Collector of Central Excise. For the purpose of adjudication before Collector of Central Excise, the procedure envisaged under the provisions of Central Excise Act does not provide acceptance of affidavits as evidence. Even otherwise, under the Central Excise Act, 1944, evidence has to be recorded in the form of examination-in-chief, cross-examination and re-

examination and affidavits alleged to have been filed before Collector of Central Excise cannot partake character of evidence to attract section 193 IPC. Therefore, I answer this point against petitioners.

Regarding Point No. 3:

12. The learned Counsel for petitioners, relying on judgments reported in 1999 SC 1201 (in the case of State of Uttar Pradesh v. Ranjit Singh) and (2000) 1 SCC 278 (in the case of M.S. Ahlawat v. State of Haryana), has contended if procedure contemplated under section 195 Cr. P.C., is not followed, entire investigation is vitiated. Therefore, learned Counsel for petitioners has contended there is legal bar to continue proceedings before Court below.

13. The learned Counsel for C.B.I., drawing my attention to section 195(3) Cr. P.C., would submit, 'the term 'Court' means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act, if declared by the Act to be a Court for the purposes of this section.'

14. On careful consideration of relevant provisions of Central Excise Act, 1944, I find Collector of Central Excise has not been defined as 'Court' for the purpose of section 195(2) Cr. P.C.

15. The learned Counsel for C.B.I., relying on judgment of Supreme Court, reported in (2005) 4 SCC 370 (in the case of Iqbal Singh Marwah v. Meenakshi Marwah), has contended affidavits filed before Collector of Central Excise had been forged elsewhere. The learned Counsel would submit bar contained under section 195 Cr. P.C.,

would come into play only if forgery is committed when documents are in the custody of Court. In the judgment, reported in (2005) 4 SCC 370, at para 34, the Supreme Court has held:--

"34. In the present case, the Will has been produced in the Court subsequently. It is nobody's case that any offence as enumerated in Section 195(1)(b(ii) was committed in respect to the said Will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by section 195(1)(b)(ii) Cr. P.C. would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference."

16. In view of what has been held by the Supreme Court, contention of learned Counsel for petitioners there is legal bar to continue proceedings, as complaint was not filed in terms of section 195 and 340 Cr. P.C., cannot be accepted. Therefore, I answer this point against petitioners.

Regarding Point No. 4:

17. The learned Counsel for petitioners, referring to section 6 of the Delhi Special Police Establishment Act, 1946, has contended in terms of section 6 of the Act, C.B.I., cannot exercise power or jurisdiction, in any part of Karnataka. The learned Counsel for petitioners would further submit inclusion of Sri M.V. Reddy, the then Collector of Central Excise as an accused was a device adopted by C.B.I., to circumvent provisions

of section 6 of the Delhi Special Police Establishment Act, 1946.

18. The learned Counsel for C.B.I., has contended in view of section 5 of the Delhi Special Police Establishment Act, 1946, C.B.I., had power to investigate into offences committed by an officer of Central Government.

In the case on hand, when investigation was commenced, Sri M.V. Reddy, the then Collector of Central Excise, was an officer of Central Government. At first instance, Sri M.V. Reddy was arrayed as accused and there was investigation into offences alleged against him under the provisions of Prevention of Corruption Act. The investigation did not conclusively prove commission of offences by Sri M.V. Reddy, therefore, C.B.I., decided not to file charge sheet against him.

19. Thus, we find C.B.I., had power and jurisdiction to investigate into the matter, in terms of section 5 of the Delhi Special Police Establishment Act, 1946. After completion of investigation, it was found investigation did not conclusively prove commission of offences by Sri M.V. Reddy, therefore charge sheet was filed against petitioners. In these circumstances, it cannot be said C.B.I., had deliberately included Sri M.V. Reddy, the then Commissioner of Central Excise to circumvent the provisions of section 6 of the Delhi Special Police Establishment Act, 1946. For these reasons, I answer this point against petitioners 20. In view of foregone discussion, I hold there are no grounds to

quash proceedings and there is no legal bar to continue proceedings against petitioners before Court below. Accordingly, these two petitions are dismissed. The observations made herein shall not be read as expression of opinion on merits of the case."

(emphasis supplied)

Later, the Apex Court in FERTICO MARKETING &

INVESTMENT (P) LTD. V. CBI2 has held as follows:

"19. It could thus be seen that the State of Uttar Pradesh has accorded a general consent for extension of powers and jurisdiction of the Members of DSPE in the whole of the State of Uttar Pradesh for investigation of offences under the Prevention of Corruption Act, 1988 and attempts, abetments and conspiracies in relation to all or any of the offence or offences committed in the course of the transaction and arising out of the same facts. The same is however with a rider that no such investigation shall be taken up in cases relating to the public servants, under the control of the State Government, except with prior permission of the State Government. As such, insofar as the private individuals are concerned, there is no embargo with regard to registration of FIR against them inasmuch as no specific consent would be required under Section 6 of the DSPE Act.

20. Vide Notification dated 15-6-1989, the State of Uttar Pradesh has accorded a general consent thereby enabling the Members of DSPE to exercise powers and jurisdiction in the entire

(2021)2 SCC 525

State of Uttar Pradesh with regard to investigation of offences under the Prevention of Corruption Act, 1988 and also to all or any of the offence or offences committed in the course of the same transaction or arising out of the same facts. As such, for registration of FIR against the private individuals for the offences punishable under the Prevention of Corruption Act and other offences under the IPC, committed in the course of the same transaction or arising out of the same facts, the Members of DSPE have all the powers and jurisdiction. As such, we find absolutely no merit in the appeals filed by the private individuals."

It is also germane to notice that the State of

Karnataka has accorded a blanket consent in terms of

notification dated 10.01.2005, after which a notification

was also issued on 28.02.2005, by the Central

Government conferring powers to CBI to exercise its

jurisdiction within the State of Karnataka in terms of

Section 5 of the Delhi Police Special Establishment Act.

14. Therefore, in the light of the notification and

the judgments rendered by this Court and the Apex

Court (supra), the contention of the learned counsel

appearing for the petitioner with regard to the CBI

lacking jurisdiction in trying offences punishable under

the Customs Act, 1962 deserves to be rejected and is

rejected.

15. The other ground the learned counsel did

emphasize that the procedure stipulated for non-

cognizable offences has been violated is also

unacceptable for the reason that the offences alleged

against the petitioner was an amalgam of both

cognizable and non-cognizable offences procedure for

which is stipulated under Section 155 of the Cr.P.C.,

which reads as follows:

"155. Information as to non-cognizable cases and investigation of such cases.--(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.

(2) No police officer shall investigate a non- cognizable case without the order of a Magistrate

having power to try such case or commit the case for trial.

(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.

(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable."

(emphasis supplied)

Section 155(4) of the Cr.P.C. mandates that where

a case relates to two or more offences of which atleast

one is cognizable, the case shall be deemed to be a

cognizable case, notwithstanding the other offences

being non-cognizable. This very provision fell for

interpretation before the Apex Court in the case of

STATE OF ORISSA V. SHARAT CHANDRA SAHU3,

wherein the Apex Court holds as follows:

"10. Sub-section (4) of this section clearly provides that where the case relates to two offences of which one is cognizable,

(1996) 6 SCC 435

the case shall be deemed to be a cognizable case notwithstanding that the other offence or offences are non-cognizable.

11. Sub-section (4) creates a legal fiction and provides that although a case may comprise of several offences of which some are cognizable and others are not, it would not be open to the police to investigate the cognizable offences only and omit the non-cognizable offences. Since the whole case (comprising of cognizable and non-

cognizable offences) is to be treated as cognizable, the police had no option but to investigate the whole of the case and to submit a charge-sheet in respect of all the offences, cognizable or non-cognizable both, provided it is found by the police during investigation that the offences appear, prima facie, to have been committed.

12. Sub-section (4) of Section 155 is a new provision introduced for the first time in the Code in 1973. This was done to overcome the controversy about investigation of non-cognizable offences by the police without the leave of the Magistrate. The statutory provision is specific, precise and clear and there is no ambiguity in the language employed in sub-section (4). It is apparent that if the facts reported to the police disclose both cognizable and non- cognizable offences, the police would be acting within the scope of its authority in investigating both the offences as the legal fiction enacted in sub-section (4) provides that even a non-cognizable case shall, in that situation, be treated as cognizable."

(emphasis supplied)

In the light of the provision and its interpretation,

the grounds so urged by the learned counsel for the

petitioner would again hold no water and are to be

rejected. Insofar as the judgments relied on by the

learned counsel appearing for the petitioner in the cases

of RAMESH CHANDRA MEHTA Vs. STATE OF WEST

BENGAL reported in AIR 1970 SCC 940 and OM

PRAKASH AND ANOTHER VS. UNION OF INDIA AND

ANOTHER reported in (2011) 14 SCC 1 and the latest

judgment in the case of CANON INDIA PRIVATE

LIMITED VS. COMMISSIONER OF CUSTOMS reported