JUDGMENT Amaresh Ku. Singh, J.

1. Heard learned Counsel for the petitioner and learned Counsel for the non-petitioners.

2. In these six petitions filed under Section 482 of the Code of Criminal Procedure, common question of law has arisen for decision. All the 6 petitions are against the orders passed by the Addl. Chief Judicial Magistrate, Balotra on 7th February, 1986 in criminal cases pending before him. Six revision petitions were filed by the petitioner under Section 397 of the Code of Criminal Procedure in the Court of District & Sessions Judge, Balotra against the order dated 7.2.1986 passed by the Addl. Chief Judl. Magistrate, Balotra and all the six criminal revision petitions were disposed of by the learned District & Sessions Judge by a common order. It is, therefore, proper to dispose of these petitions by a common order.

3. Shorn of details the relevant facts for the purpose of disposing of these petitions We as given below:

Criminal Original Cases No. 270 of 1983, 272 of 1983, 269 of 1983, 268 of 1993, 271 of 1983, and 267 of 1983 were instituted on the basis of the complaints filed on behalf of the Rajasthan State Board for Prevention and Control of Pollution, Jaipur alleging the commission of offences punishable under Sections 42 and 44 of the Water (Prevention & Control of Pollution) Act, 1974 (in short, referred to hereinafter as 'the Act of 1974'). The above-mentioned cases were registered as cases instituted on complaint, as cognizance of the offences was taken under Section 190(1)(a) of the Criminal Procedure Code, 1973. On 7.2.1986, the complainant did not appear in the Court of the Addl. Chief Judl. Magistrate when the cases were called for hearing. The Addl. Chief Judl. Magistrate, Balotra, on the same day, discharged the accused-persons under Section 249 of the Criminal Procedure Code, 1973 because the complainant was not present. The powers under Section 249 of the Criminal Procedure Code were exercised by the learned Addl. Chief Judl. Magistrate, Balotra because it was urged before him that the offences under Sections 42 and 44 of the Act of 1974 were non-cognisable offences and, therefore, the learned Addl. Chief Judl. Magistrate on the footing that offences under Sections 42 and 44 of the Act of 1974 were non-cognisable offences passed the order under Section 249 of the Criminal Procedure Code discharging the accused persons.

4. The revision petitions were filed under Section 397 of the Criminal Procedure Code in all the six cases mentioned above. The learned District & Sessions Judge, Balotra dismissed the revision petitions as he held that the offences under Sections 42 and 44 and the Act of 1974 were non-cognisable offences. He further considered it not necessary to interfere with the discretion exercised by the Addl. Chief Judl. Magistrate.

5. Feeling aggrieved by the orders passed by the Addl. Chief Judl. Magistrate, Balotra and the District & Sessions Judge, Balotra, the petitioner has filed these 6 petitions under Section 482 of the Criminal Procedure Code.

6. Learned Counsel for the petitioner has submitted that the offences under Sections 42 and 44 of the Act of 1974 is punishable with more than 2 years imprisonment and, therefore, the cases were warrant cases, but, the powers conferred by the Section 249 of the Criminal Procedure Code could not have been exercised by the Addl. Chief Judl. Magistrate for the purpose of discharging the accused persons on account of non-appearance of the complainant, as the offences of which cognizance has been taken were neither compoundable nor they were non-congnisable offences. He has therefore, submitted that the orders passed by the Courts below are illegal, without jurisdiction and amount to the abuse of the process of the Court and, therefore, deserve to be set aside.

7. Learned Counsel for the non-petitioners have submitted that though these offences under Sections 42 and 44 of the Act of 1974 "are not compoundable", they are "non-cognisable offences" and, therefore, the Addl. Chief Judicial Magistrate, Balotra could exercise the power under Section 249 of the Criminal Procedure Code for discharging the accused-persons on the ground that the complainant was not present. It is, therefore, prayed that these petitions should be dismissed.

8. In view of the submissions made by learned Counsel for the parties, the only question which arises for decision is whether the offences under Sections 42 and 44 of the Act of 1974 are non-congnisable offences.

9. Section 2(c) of the Criminal Procedure Code, 1973 defines the expression "cognisable offence" in the following words:

2(c),-"Cognisable offence" means an offence for which and "cognisable case" means a case in which, the police officer may, in accordance with the First Schedule or under any other law for the time being in force arrest without warrant.

Section 2(1) defines the expression "non-cognisable offence" in the following words:

2(1).-"non-cognisable offence" means an offence for which, and "non-cognisable case" means a case in which, the police officer has no authority to arrest without warrant.

A bare reading of the definitions given in clauses (c) and (1) of Section 2 of the Criminal Procedure Code shows that the legislature had defined 4 expressions which are:

(a) cognisable offence,

(b) non-cognisable offence,

(c) cognisable case, and

(d) non-cognisable case.

Section 2(c) makes it very clear that cognisable offence means an offence for which the police officer may arrest without a warrant in accordance with the First Schedule or under any other law for the time being in force and the cognisable case means a case in which the police officer may arrest in accordance with the First Schedule or any other law for the time being in force. In other words, the test for determining whether the "offence" and the "case" referred to in Section 2(c) is cognisable or not, is to find out whether the police officer can make arrest in accordance with the First Schedule or under any other law for the time being in force. If the police officer can be said to be vested with the power to make arrest, whether this power is in accordance with First Schedule or under any other law, it will have to be said that the offence or the case, as the case may be, is a cognisable one. On the other hand, if no such power to make arrest is vested in the police officer, the offence or the case, as the case may be, would be non-cognisable by virtue of the definition contained in Section 2(1) of the Criminal Procedure Code.

10. What is to be noted is that Sections 2(c) and 2(1), separately mention "offence" and "case". It is, therefore, appropriate that...these two different expressions are the subject matter of Section 2(c) and Section 2(1) because the legislature considered it necessary to make a distinction between "offence" and "case". What is defined in Section 2(c) is expression cognisable and Section 2(1) defines the expression "non-cognisable". The criterion for distinguishing "cognisable" from "non-cognisable" is the power of police, to make arrest without a warrant, irrespective of the fact whether such power is available to him in accordance with the First Schedule of the Criminal Procedure Code or under any other law for the time being in force. Keeping the above scheme of Section 2(c) and Section 2(1) in mind, the reasons given by the Courts below may be scrutinised to find out whether the offences under Sections 42 and 44 of the Act of 1974 are cognisable offence or they are non-cognisable offences.

11. The Addl. Chief Judl. Magistrate has relied on the observations made by the learned Single Judge of this Court in Prahlad Rai v. State of Rajasthan, Cr. L.R., 1987 Page. 286. In that case, an application for anticipatory bail was filed under Section 438 of the Criminal Procedure Code by a person who was apprehending his arrest on the charges under Sections 276(c) and 276(CC) of the Income Tax Act. At page 208 of the report, the learned Single Judge observed:

The offence under Section 276C, under Section 276CC is such of which cognisance can be taken by the Magistrate only when a complaint is filed by the Department. Therefore, it cannot be said that this is cognisable offence as it requires a complaint to be filed by the Department before the Magistrate can take cognizance of the same.

A perusal of the order passed by the learned Single Judge shows that neither the provisions of Section 249, Cr. P.C. nor the definitions contained in Sections 2(c) and 2(1) of the Criminal Procedure Code, 1973 were considered. Since it was an application under Section 438 of the Criminal Procedure Code which was pending before the Court, the only point to be decided was whether the petitioner was entitled to bail under Section 438, Cr. P.C. Whether the offences under Sections 276C and 276CC of the Income Tax Act were or were not cognisable offences by virtue of the definition contained in Section 2(c) and 2(1) of the Criminal Procedure Code did not arise for decision in that case. In view of these facts, the observations (above quoted) can at the most be said to lay down the law that the Magistrate cannot take cognizance of the offences under Sections 276C and 276CC of the Income Tax Act unless a complaint is filed by the Income Tax Department and, in that, sense, those offences are non-cognisable offences. There is nothing in the order passed by the learned Single Judge to indicate that by the aforesaid observations it was intended to lay down the law that since the Magistrate cannot take cognizance of the offence without the complaint by a particular person or by the Department, the offence would be regarded as non-cognisable offence for the purpose of Section 2(1) and Section 249 of the Criminal Procedure Code.

12. For the above reasons, it is proper to hold that the observations made by the learned Single Judge of this Court in Prahlad Rai's Case (supra) cannot be used as authority for the proposition that the Magistrate cannot take cognizance of an offence without a complaint filed by a particular person or Department, the offence shall be treated as non-cognisable offence for the purpose of Section 2(1) and Section 249 of the Criminal Procedure Code.

13. In Union of India v. Maj. I.C. Lala , the Hon'ble Supreme Court observed:

Unless there are clear and compelling reasons to hold otherwise the division of offences given in the Code of Criminal Procedure as cognisable and non-cognisable should be given effect to. When the same Code makes sanction under Section 196-A necessary for trial of non-cognizable offences it clearly contemplates non-cognizable offences as defined in the Code. There is no justification for relying upon extraneous considerations and far-fetched reasoning in order to get over the effect of these provisions.

In view of the above observation of the Hon'ble Supreme Court, the only way in which it may be ascertained whether a certain offence is not a cognisable offence, is to apply the definition contained in Sections 2(c) and 2(1) of the Criminal Procedure Code to the offence in question.

14. Section 2(c) gives the definition of "cognisable offence" and "cognisable case" and Section 2(1) gives the definition of "non-cognizable offence" and "non-cognisable case". By the above definition, the legislature has made a distinction between the expression "offence and the expression "case". The reasons for making these distinctions are not difficult to ascertain. A bare perusal of Section 41 of the Criminal Procedure Code shows that under the Section a police officer has been given the legal authority to make arrest without a warrant not only when the offence committed by the offender is a cognisable offence but also when the offence is non-cognisable. If, there are circumstances justifying his arrest under Section 41 without warrant the warrant of arrest. Whereas Clause (a) of Section 41 refers to the involvement in any cognisable offence, the cases referred in clauses (b) to (i) are not necessarily restricted to cognisable offences. The case referred in Clause (b) to (1) may be related to cognisable offences as well as non-cognisable offences. It is, therefore, obvious that whereas arrest under Clause (a) of Section 41 may be said to be arrest on charge of a cognisable offence the arrest made under clauses (b) to (1) of Section 41 of the Criminal Procedure Code cannot be said to be arrest on the charge of cognisable offence if the person to be arrested is not involved in the commission of any cognisable offence. The cases in which power under clauses (b) to (1) of Section 41 of the Criminal Procedure Code may be exercised would attract the definition of "cognisable case" rather than the definition of "cognisable offence".

15. Section 42 of the Criminal Procedure Code expressly confers on a police officer power to make arrest of the offender who has committed or has been accused of committing a non-cognisable offence and who, refuses, on demand of such officer, to give his name and residence or givens a name or residence which such officer has reason to believe to be false. It is obvious that Section 42 of the Criminal Procedure Code would attack the definition of "cognisable case" rather than "cognisable offence". I am, therefore, of the view that the definitions given in Sections 2(c) and 2(1) of the Criminal Procedure Code make a distinction between an 'offence' and a 'case' and it is quite conceivable that in a given case the offence may not be cognisable but the case may be cognisable if the police officer is empowered according to the First Schedule or under any other law for the time being in force to make arrest without a warrant. Similarly, it is conceivable that though the offences may be cognisable, the cases may be non-cognisable if the police officer has been deprived of his power to make arrest without a warrant. An example of this kind of cases is to be found in Section 202(3) of the Criminal Procedure Code which denies to the officer-in-charge of the police station the power to arrest without a warrant while he is conducting investigation under the order issued by the Court under the proviso to Sub-section (2) of the Section 202 of the Criminal Procedure Code.

16. If the distinction between the 'offence' and the 'case' is kept in view, the confusion which sometimes arises on account of restrictions placed on the power of the court to take cognisance under Section 190 of the Criminal Procedure Code would be avoided. Cognisability of the offences as well as cases under Sections 2(c) and 2(1) of the Criminal Procedure Code does not depend on the answer to the question whether the Magistrate can or cannot take cognizance unless the conditions imposed by law are satisfied. It may be, that unless the conditions necessary for taking cognizance are not fulfilled, the Court may not take cognizance under Section 190 of the Criminal Procedure Code, but that does not mean that the offence will not be cognisable offence within the meaning of Section 2(c) even if the police officer has the legal power to make arrest without a warrant, in accordance with the provisions of the First Schedule, or under any other law for the time being in force.

17. In Tej Khan v. State of Rajasthan , the Court observed:

The fact that the power to investigate or to arrest without warrant has been circumscribed by certain conditions (which conditions were clearly provided for the purpose of safeguarding public servants from harassment at the hands of subordinate police officers) under the proviso to Section 3 of the Said Act cannot lead to the conclusion that such offence is non-cognizable.

In view of the above observations, it may be said that if there is a power to make arrest without a warrant, the offence will have to be treated as cognizable offence even if the power to make arrest has been circumscribed by the imposition of certain conditions.

18. For reasons mentioned above, I hold that the conditions circumscribing the powers of the Court to take cognizance under Section 190 of the Criminal Procedure Code, having direct relevance to the definitions given in Sections 2(c) and 2(1) of the Criminal Procedure Code and that the conditions which are imposed to circumscribe the power of the police officer to make arrest without a warrant, do not convert a cognisable offence into a non-cognisable offence and, that, in view of the definitions contained in. Sections 2(c) and 2(1), the expression "offence" and the expression "case" cannot be taken as synonymous. They have to be treated as separate and distinguishable signifying different things and, therefore, it is conceivable that though offence may be cognizable yet there may be no cognisable case if the power to make arrest without a warrant is denied. The instance, a case under Section 202 of the Criminal Procedure Code and that there may be a case in which the power to make arrest without a warrant may be available and, therefore, the case may be cognisable though the offence which is alleged to have been committed may be a non-cognizable offence.

19. The offence under Section 42 of the Act of 1974 is punishable with imprisonment which may extend to 3 months or with fine which may extend to 10,000/- rupees. The offence under Section 44 of the Act of 1974 is punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to 6 years and with fine. Having regard to the punishment prescribed by the Act, the offence under Section 42 must be regarded as non-cognisable offence because offences is punishable with less than 3 years imprisonment. But the offence under Section 44 of the Act deserves to be regarded as a cognisable offence, according to Schedule-I as the maximum punishment prescribed for this offence is 6 years.

20. I am, therefore, of the view that offence under Section 44 of the Act of 1974 is a 'cognizable' offence within the meaning of Section 2(c) of the Criminal Procedure Code and, therefore, the provisions of Section 249 were not applicable. The view taken by the learned Addl. Chief Judicial Magistrate as well as by the learned District & Sessions Judge that the above-mentioned offences are non-cognisable offences is erroneous. The impugned orders of discharge passed on 7.2.1986 purporting to be under Section 249 of the Criminal Procedure Code are without jurisdiction and they amount to the abuse of the process of the Court.

21. For the reasons mentioned above, all the six petitions filed under Section 482 of the Criminal Procedure Code deserve to be allowed. The impugned orders dated 7.2.1986 passed by the learned Addl. Chief Judicial Magistrate, Balotra and the impugned order dated 31.7.1987 passed by the learned District & Sessions Judge, Balotra are hereby quashed and set aside. The Addl. Chief Judicial Magistrate, Balotra is hereby directed to proceed with the cases and decide them in accordance with law.