Holding

After the six‑month period, prosecution may be instituted only with prior sanction of the State Government, and the sanction need not be obtained before the six months expire; the High Court cannot quash proceedings that have not yet been instituted.

Summary

The Excise Department of West Bengal seized a large quantity of spirit and arrested several persons. Because the investigation and filing of the prosecution report extended beyond six months from the date of the alleged offence, the Department sought a magistrate’s order under CrPC Section 167(5) to continue the investigation and also applied to the State Government for sanction under Bengal Excise Act 1909 Section 92(1). The High Court quashed the proceedings, holding that sanction should have been obtained before the six‑month period expired and that the absence of a filed prosecution report justified discharge. On appeal, the Supreme Court held that the statute requires sanction only when prosecution is instituted after the six‑month period; the sanction need not be secured before the period expires, and the magistrate may take cognizance if prosecution is instituted within six months without sanction. Consequently, the High Court had no power to quash a prosecution that had not yet been instituted. The appeal was allowed and the High Court order set aside.

Issues considered

Whether Section 92(1) of the Bengal Excise Act, 1909 mandates that the State’s sanction be obtained before the expiry of the six‑month limitation period for instituting prosecution.
Whether a High Court can quash criminal proceedings when the prosecution report has not yet been filed.
Whether any limitation period applies after the initial six months for instituting prosecution with the required sanction.

Subjects

Bengal Excise ActSection 92sanctionlimitation periodCrPC Section 167(5)quash of prosecutionmagistrate cognizanceinvestigation delayanticipatory bail

Judgment

A STA TE OF WEST BENGAL
v.
RASHMOY DAS AND ORS .

. DECEMBER l, 1999

B [K.T. THOMAS AND M.B. SHAH, JJ.)

Bengal Excise Act, 1909-Section 92(1)-Criminal Courts-Cognizance
of Offence under the Act-When-Held, if the prosecution has been instituted
C within six months of the act alleged-If the period of six months is over,
when prosecution is instituted with previous sanction of the State-Not
necessary that proceedings for securing sanction should have commenced
before expiry of the period of six months-Code of Criminal Procedure, 1973
(West Bengal Amendment)-Section 167(5).

D Excise Department of appellant-State proposed to launch prosecution
against respondents for various offences under the Bengal Excise Act, 1909.
On the expiry of period of six months from the date of the act alleged, it
approached the Magistrate under Section 167(5) of the Criminal Procedure
Code, 1973 (West Bengal Amendment) seeking order for continuing the
investigation and also moved the State Government for sanctioning the
·E prosecution under Section 92(1) of the Bengal Excise Act, 1909. Respondents
approached the Magistrate under Section 167(5) Cr. P.C. to discharge them
from the case on the ground that the state faile~ to lau~ch prosecution within
the period of six months from the date of alleged commission of offence which
was dismissed. The respondents filed revision in the High Court which was
F allowed o!1 the ground that steps should have been initiated for securing
sanction before the expiry of six months from the date of occurrence and
quashed the proceedings against them. Aggrieved by the order of the High
Court, appellant- State has filed the present appeal.

The appellant-State contended that there was no scope for ordering
G quashment of the proceedings when the prosecution report had not been filed.

Allowing the appeal, the Court

HELD : 1.1. The power of criminal courts in taking cognizance of an
H offence under the Bengal Excise Act, 1909 has been circumscribed by the
80
ST A TE OF WEST BENGAL v. RASHMOY DAS 81
second paragraph of Section 92(1). A reading of it makes the position clear A
that there is no bar on the magistrate against taking cognizance of the offence
under the Act if one of the two conditions mentioned thereunder is satisfied.
If the prosecution has been instituted within six months of the act alleged
there is no question of producing any sanction as the magistrate then would
be free to take cognizance under the Act. But if the aforesaid six months
period is over the court can still take cognizance of the offence under the Act B
when the prosecution is instituted with the previous sanction of the State
Government. In other words the only requirement for initiating prosecution
proceedings against an offender after the expiry of the period of six months
from the date of the act alleged is that such institution should be accompanied
by the sanction granted by the State Government for such institution. C
[84-G-H; 85-A)

1.2. The necessi~y for obtaining sanction would arise only if the
prosecution has not been instituted till the expiry of the said period of six
months. Hence there is no scope for suggesting that the officer should have
commenced proceedings for securing sanction before the expiry of the said D
period of six months. If papers are complete for launching the prosecution
before the expiry of the said period they can straight away approach the
magistrate for initiating such prosecution. No question of sanction would then
arise. So the need for obtaining sanction would arise only after the expiry of
the said period of six months. (85-C, DJ
E
Superintendent and Remembrance of Legal Affairs, West Bengal v.
Mahendra Singh, (1972) Criminal Law Journal 544, approved.

2. The High Court cannot quash something which was n~>n-existent There
is no necessity for quashing prosecution in anticipation or initiation of such F
prosecution proceedings. (84-D)

3. It has to be noted that after the initial period of six months is lapsed
no further period of limitation is prescribed in the Act for instituting the
prosecution supported by the sanction. Of course such institution may be
subject to the other general provisions contained in the Code of Criminal G
Procedure. (85-B)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1287
of 1999.

- -
From the Judement and Order dated 12.8.98 of the Calcutta Hfgh Court H
82 SUPREME COURT REPORTS [1999] S.UPP. 5 S.C.R.

A in Crl. R.C. No. 47 of 1998.
Tapash Chandra Ray and Ms. Mita Mukherjee & Satish Vig for the
Appellant.

Mrs. Sarla Chandra, for the Respondent No. 1 Alok Sen Gupta and
B Parijat Sinha for the Respondent Nos. 2-3.

The Judgment of the Court was delivered by

THOMAS, J. Leave granted.

C The High Court seems to have pre-empted launching of prosecution
proceedings against the respondent as the High Court pre-maturely stepped
in with an order of quashment. State of West Bengal has therefore challenged
the said order of the High Court in this appeal by special leave.

The facts which appellant has set up against the respondents which led
D to the aforesaid order are the following:

A search was conducted by the officers of the Excise Department of the
West Bengal State, at the office-cum-godown of an institute called Mis
Homeo Implex India Private Limited on 22.3.1996. A huge quantity of spirit
(9,683 litres) was seized therefrom. As the storing of such spirit, according to
' E the officers, was without support of any valid authority, they took samples
from the contraband and forwarded them to the Chemical Examiner for the
purpose of testing them in the laboratory. On the same day the officers
arrested two persons. They were produced before the Sub-Divisional Judicial
Magistrate, Alipore who later released them on bail. The three respondents
F in. this appeal moved the sessions court for anticipatory bail and the sessions
judge granted an order in their favour on 16.4.1996.

On 19. l 0.1996, the Chemical Examiner forwarded the report of analysis
of the samples. The officers of the Excise Department took the view that
respondents, besides those who were arrested at the first instance were also
G responsible for the storage of the contraband and all of them are liable to be
prosecuted for various offences under the Bengal Excise Act 1909 (for short
the 'Act').

As they proposed to launch prosecution against those persons they
realised that there were two hurdles to be circumvented. First is, Section 92
H of the Act contains a rider that institution of the prosecution was to be made
STATE OF WEST BENGAL v. RASHMOY DAS [THOMAS, J.] 83
after the expiry of six months from the date of commission of offence, only A
with the sanction of the State Government. The second was that under
Section 167(5) of the Code of Criminal Procedure (West Bengal Amendment)
an order of the Magistrate was necessary for continuing the investigation
beyond six months from the date of arrest of the accused. As per the said
sub-section if investigation in a case triable by a magistrate as summons case B
could not be concluded within six months from the date on which the accused
was arrested or made his appearance, the magistrate shall make an order
stopping further investigation into the offence and shall discharge the accused
unless the officer making the investigation satisfies the magistrate that for
special reasons and in the interest of justice continuation of the investigation
beyond the said period is necessary. This is a special provision applicable C
only in the State of West Bengal.

By the time the Excise Officers received the report from the Chemical
Examiner the period of six months got expired. Hence they adopted a twin
measure-one, seeking the order of the magistrate for continuing the
investigation and the other, seeking the state Government's order sanctioning D
prosecution.

Though the magistrate initially granted further time to complete
investigation that period too expired and the officers again approached the
magistrate for further extension which was granted. In the meanwhile, the
respondents moved the magistrate to dis,harge them from the said case on E
the ground that the State failed to launch the prosecution within the period
of six months from the date of the alleged commission of offence. But the
magistrate dismissed the petition against which the respondents moved the
High Court in revision. Learned single Judge of the High Court disposed of
the said revision as per the impugned order and all the proceedings against F
the respondents were quashed.

On behalf of the respondents it was submitted before the High Court,
inter alia, that as per the provisions of the Act the Magistrate had no
authority to extend the time of filing the Police Report and that steps should
have been initiated for securing sanction within the period of six months from G
the date of occurrence. It appears that the learned Single Judge has upheld
the said argument which could be discerned from the following observations:

"In the background of the above submissions it appears that failure
of the prosecution to apply for sanction before the expiry of the
period of six months when it was unable or file the prosecution report H
84 SUPREME COURT REPORTS [1999) SUPP. 5 S.C.R.

A within six months and its failure to produce the sanction order as yet
',,
and its further failure to file the prosecution report by now have
entitled the accused persons to be discharged and the proceedings
qu~shed."

Learned Judge further observed that "where the prosecution intends to
B file the prosecution report beyond the prescribed period of six months for
initiation of proceedings with a view to take cognizance by the Magistrate it
must come with the sanction order together with the prosecution report. In
the instant case neither the prosecution report has been filed before the
Magistrate as yet nor the sanction order has been produced.'.'

c The final operative portion in the impugned judgment is "in the light of r
the above discussions the petition is allowed and the proceedings quashed.

Shri Tapas Chandra Ray, learned senior counsel who argued for the ~

ap_pellant State has submitted that when the High Court found that the •~
prosecution r:eport has not been filed there was no scope for ordering
D quashment of the proceedings. There is merit in the said contention that the )~
High Court cannot quash something which was non-existent. There is no
necessity for quashing prosecution in anticipation or initiation of such
prosecution proceedings. Further learned Single Judge has not correctly
interpreted Section 92( 1) of the Act. The sub-section is extracted below:
E "92. Limitation of suits and prosecutions.-{ I) No Civil Court shall try
any suit against the Government in respect of anything done or
alleged to have been done, in pursuance of this Act, and except with
the previous sanction of the State Government, no Magistrate shall
take cognizance of any charge made against any Excise Officer under
this Act or any other law relating to the excise revenue, or made
F
against any other person under this Act, unless the suit of prosecution
is instituted within six months after the date of the act complained of."
We need not bother ourselves in this case about the constraint imposed
by the section on the civil courts which alone is covered by first paragraph
of the said provision. The power of criminal courts in taking cognisance of
G
an offence under the Act has been circumscribed by the second paragraph
of the section. Nevertheless a reading of it makes the position clear that there
is no ban on the magistrate against taking cognizance of the offence under ....
H
the Act if one of the two conditions is satisfied. If the prosecution has been
instituted within six months of the act alleged there is no question of producing
any sanction as the magistrate would then be free to take cognizance under
-
,'t'
STATE OF WEST BENGAL v. RASHMOY DAS [THOMAS, J.) 85
the Act. But if the aforesaid six months period is over the court can still take A
cognizance of the offence under the Act when the prosecution is instituted
with the previous sanction of the State Government. In other words the only
requirement for initiating prosecution proceedings against an offender after
the expiry of the period of six months from the date of the act alleged is that
such institution should be accompanied by the sanction granted by the Sate B
Government for such institution.

It has to be noted that after the initial period of six months is lapsed
no further period of limitation is prescribed in the Act for instituting the
prosecution supported by the sanction. Of course such institution may be
subject to the other general provisions contained in the Code of Criminal C
Procedure. The reasoning adopted by the learned Single Judge that steps for
obtaining sanction should have been adopted before the expiry of the first
six months period has no support in Section 92 or any other provision of the
Act. However, even the necessity for obtaining sanction would arise only if
the prosecution has not been instituted till the expiry of the said period of
six months. Hence there is no scope for suggesting that the officer should D
have commenced proceedings for securing sanction before the expiry of the
said period of six months. If papers are complete for launching the prosecution
before the expiry of the said period they can straight away approach the
magistrate for initiating such prosecution. No question of sanction would
then arise. So the need for obtaining sanction would arise only after the expiry
of the said period of six months.

Attention of the learned Single Judge should have been drawn to an
earlier decision rendered by a Division Bench of the Calcutta High Court in
Superintendent and Remembrance of Legal Affairs, West Bengal v. Mahender
Singh, (1972 Criminal Law Journal 544). In the said case the situation was that F
the magistrate passed an order discharging the accused in a prosecution for
certain offences under the Act on the premise that no magistrate could take
, cognizance of the offence as the initial period of six months had already
expired. The Division Bench of.the High Court interfered with that order and
observed thus:
G
"The bar therefore to the institution of the proceedings without a
previous sanction as enjoined under Section 92 of Bengal Act V of
1909 relate:; only to a prosecution instituted after six months but if
and when the same is instituted within six months, no such sanction
would be necessary. The emphasis therefore put by the legislature is
on a sanction on the expiry of six months and the said provisions do H
86 SUPREME COURT REPORTS [1999) SUPP. 5 S.C.R.

A not constitute any bar simpliciter as Mr. Das contended. Therefore,
the ratio of the learned Magistrate's order in this context are not
correct. The State Government can conform to the requirements of the
statute on expiry of six months by getting a sanction before the court
takes cognizance, It is, therefore, premature at this stage to hold that
there has been a statutory limitation and that Section 92 of the Bengal
B Act V of 1909 lends assurance to the same."

We have no doubt that the learned Single Judge had missed the correct
legal position laid down by the Division Bench in the aforesaid decision. For
all those reasons we allow this appeal and set aside the impugned judgment.
c Learned counsel for the respondents pleaded that the respondents may
be allowed to raise all other contentions regarding the maintainability of the
prosecution. It is needless to observe that it is open to the respondents to
raise whatever contention they think proper for resisting the prosecution
pitted against them.
D
A.K.T. Appeal allowed.