1. This Rule, at the instance of the State of West Bengal, is directed against an order dated January 25, 1978 passed by the learned Judicial Magistrate, 5th Court, Sealdah discharging the accused-opposite party, Jogindar Mallick, from a prosecution under S. 33A of the Calcutta Suburban Police Act, 1866 (hereinafter referred to as the Act).

2. It has been alleged that the accused was found in possession of six bundles of human bones at Nilratan Sarkar Hospital on July 7, 1974 and as he failed to account for such possession, he was arrested by a police officer of the Entally Police Station. He was produced before the learned Police Magistrate, Sealdah on the self-same day and was released on bail. After completion of investigation into the case, a report was submitted by the Officer-in-charge on October 7, 1974 praying for prosecution of the accused under S. 33A of the Act. The substance of the accusation was explained to the accused under S. 251 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) to which he pleaded not guilty. After a few witnesses on behalf of the prosecution were examined, an application was filed by the accused stating that the proceeding against him was not legally maintainable having regard to the fact that no prior permission was obtained from a competent Magistrate to investigate into the offence alleged against him, which was a non-cognizable one, as required under S. 155(2) of the Code. This application was opposed by the petitioner by contending that the offence alleged against the accused was a cognizable one and therefore the provisions of S. 155(2) of the Code had no application. The learned Magistrate accepted the contention of the accused opposite party that the offence was a non-cognizable one and held that as there was no order of a competent Magistrate permitting the police to investigate into the offence, the proceeding against the accused was bad in law. On such finding, by the impugned order, he discharged the accused and directed that the seized goods be returned to the person from whom seized.

3. While the learned Advocate for the opposite party was present at the time of the hearing of the Rule on January 10, 1979, no one was present on behalf of the petitioner. Under such circumstances, this Court was deprived of the opportunity of hearing the learned Counsel the State. Be that as it may, from the revisional application it appears that the only ground that has been raised on behalf of the petitioner is that the offence under S. 33A of the Act is a cognizable one and as such S. 155(2) of the Code has no manner of application. The learned Advocate on behalf of the opposite party contended that the maximum punishment for the commission of an offence under S. 33A of the Act being imprisonment for a term of three months, the offence was not a cognizable one under S. 2(c) of the Code, and as such the police could not have investigated into the offence without order of a competent Magistrate. In the context of the contentions raised on behalf of the parties, the first point to be decided is whether the offence under S. 33A of the Act is a cognizable one or not.

4. Section 33A of the Act, so far as it is relevant for our present purpose, provides that whoever is found in possession of anything which there is reason to believe to have been stolen or fraudulently obtained shall, if he fails to account for such possession to the satisfaction of the Magistrate, be liable to fine which may extend to one hundred rupees, or to imprisonment with or without hard labour, for a term which may extend to three months, Section 43(1) of the Act empowers any police officer to arrest without warrant any person committing in his presence in any street or public place any offence punishable under any section of the Act. From the order of the learned Magistrate, it appears, that inspiration was drawn by the petitioner from this provision to contend that the offence under S. 33A of the Act was a “cognizable offence” within the meaning of S. 2(c) of the Code, which defines cognizable offence to mean an offence for which a police officer may, in accordance with the First Schedule of the Code or under any other law for the time being in force, arrest without warrant. Apparently though it may seem that by virtue of S. 43(1) of the Act the offence under S. 33A becomes a cognizable offence, a closer look would show otherwise.

5. The offence under S. 33A is possession of anything which is reasonably believed to be stolen or fraudulently obtained, and failure on the part of the person to give account for such possession to the satisfaction of the Magistrate would make him liable to punishment. When such an offence is committed in presence of a police officer in any street or public place, then only a police officer can arrest him without a warrant in exercise of the powers conferred by S. 43(1) of the Act. It would thus appear that the power of the police officer to arrest for an offence under S. 33A is not plenary, but qualified, and can be exercised only when the conditions of S. 43(1) are satisfied, namely, that the offence is committed in his presence, in any street or public place. An offence under S. 33A can also be committed by a person by keeping anything in his house or godown, and when the offence is committed in such manner, the police would not have any power to arrest the person concerned without warrant. Possession, as mentioned in S. 33A, by itself is an offence but when such offence is committed under certain circumstances as mentioned is S. 43(1), the police officer has the power to arrest without warrant. But if the offence is committed under different circumstances, the police officer will have no power to arrest without warrant.

6. In my considered view, to bring an offence within the definition of “cognizance offence” under S. 2(c) of the Code, the offence by itself should be such for which the offender can be arrested without a warrant of arrest. If for commission of such offence under certain circumstances the police is given the power to arrest without warrant that would not make the offence cognizable. In that view of the matter and in view of the punishment provided for the offence under S. 33A of the Act it is not a “cognizable offence” under the First Schedule of the Code nor has the offence been made a cognizable one under the Act. The only power that has been given under the Act is that when it is committed under certain circumstances, the police has a right to arrest without warrant. The purpose for which such a power has been given to a police officer is also patent. When a person is found in possession of anything within the meaning of S. 33A of the Act on a street or public place, by a police officer, it will be ridiculous to suggest that the police officer will have to rush to a Magistrate to obtain a warrant for apprehending him. It must, therefore, be held that notwithstanding the power of the police officer to arrest without warrant, a person committing an offence under S. 33A of the Act, in exercise of the powers conferred by S. 43(1), the offence is not a cognizable one.

7. The next point to be considered is whether the learned Magistrate was justified in holding that the entire proceeding was bad in law due to non-compliance of S. 155 of the Code. This finding of the learned Magistrate is entirely wrong as it is based on the assumed premises that the offence that was being investigated by the police was one under S. 33A of the Act. The first report of the police dated July 7, 1974, which was submitted before the Magistrate at the time of producing the accused, indicates that the police officer arrested the accused under S. 41 of the Code for an offence under S. 411 of the Indian Penal Code as he had a reasonable suspicion that the bundles of human bones were stolen. The arrest of the accused, therefore, was not under S. 43(1) of the act for an offence under S. 33A of the Act. Section 41(d) of the Code empowers a police officer to arrest any person, without a warrant and without any order from a Magistrate in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing. Section 157 of the Code provides that if from information received or otherwise an officer-in-charge of a Police Station has reason to suspect the commission of an offence, which he is empowered under S. 156 to investigate, he can investigate into the same in the manner indicated thereunder. Admittedly, S. 411 of the Indian Penal Code is a cognizable offence, and as such, if the officer-in-charge had reasons to suspect from information received or otherwise, the commission of such an offence, he was entitled to investigate into the same under S. 157 of the Code and if such investigation ultimately disclosed commission of non-cognizable offence, then the report that would be submitted by him shall be deemed to be a complaint under the explanation to S. 2(d) of the Code, which defines “complaint.”

8. In the instant case, the police started on the premises that the goods were reasonably suspected to be stolen property and, therefore, the police officer was within his right to arrest the accused under S. 41 of Code read with S. 411 of the Indian Penal Code. The Officer-in-charge of the concerned Police Station, on receiving such information from the police officer who arrested the accused, in his turn was within his rights to investigate under S. 157 of the Code. If the officer found that the materials collected during investigation fell short for proving that the goods were stolen property, he was equally competent to submit a report before the learned Magistrate to say that the goods that were found in possession of the accused were reasonably believed to be stolen or fraudulently obtained, and to pray for prosecution of the accused under S. 33A of the Act. Such report is to be treated as a complaint and the cognizance taken thereunder will be valid under S. 190(1)(a) of the Code.

9. From the foregoing discussions, therefore, it must be held that the learned Magistrate erred in concluding that the investigation that was undertaken by the police officer was in respect of a non-cognizable offence and the entire proceeding was bad due to non-compliance of the provisions of S. 155(2) of the Code.

10. On the conclusions as above, this application succeeds and the Rule is made absolute. The impugned order of the learned Magistrate dated January 25, 1978 passed in U.R Case No. 23 of 1974 is hereby set aside and the learned Magistrate is directed to proceed with the case from the stage it reached prior to the passing of the impugned order.

11. As the matter is long pending, the learned Magistrate will try to dispose of the case with utmost dispatch.

Let the records be sent down at once.

Rule made absolute.