1976 (12) TMI 182
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....t Class, Badami, charging him with having committed an offence punishable under Section 34 of the Mysore Excise Act, 1965. The learned Judicial MagiStrate by an order dated 3rd October, 1970 refused to take cognizance of the offence on this charge-sheet, since it was filed by the Police and not by an Excise official. The view taken by the learned Magistrate was that under Section 60 clause (b) as amended by Mysore Ordinance No. 4 of 1970 which represented the law as it then stood, it was not competent to him to take cognizance of an offence punishable under Section 34, except on the complaint or report of an Excise Officer and since the charge:sheet in the present case was filed by the police and not by an Excise Officer, he was precluded f....
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.... force on 7th August 1970. Section 18 of this amending ordinance omitted the words "or police" in clause (b) of Section 60. The result was that cognizance of an offence punishable under Section 34 could not be taken by a Magistrate "except on his own knowledge or suspicion or on the complaint or report of an excise officer". Section 60 (B) was also added at the same time and by this new Section inter-alia offence under Section 34 was made cognizable and the provisions of the Code of Criminal Procedure 1898 with respect to cognizable offences were made applicable to such offence. It was on the basis of the amended clause (b) Section 60 that the learned Judicial Magistrate as well as the Sessions Judge held that cognizance of the offence und....
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...., the Court should not allow its imagination to boggle but must carry the legal fiction to its logical extent and give full effect in it. We must, therefore, proceed on the basis that the words "or police" were always there in clause (b) of Section 60, even at the time when the learned Judicial Magistrate made his order dated 3rd October, 1970 refusing to take cognizance of the offence and returning the charge-sheet to the police. If these words were in clause (b) of Section 60 at that time, then obviously the learned Magistrate was in error in refusing to take cognizance of the complaint on the ground that the charge-sheet was not filed by an excise officer but by the police. That is the clear effect of the legal fiction enacted in Section....