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1978 DIGILAW 80 (PAT)

Googan Lal Marwari v. State of Bihar

1978-03-22

B.S.SINHA, MANORANJAN PRASAD

body1978
Judgment Manoranjan Prasad, J. This is an application under section 482 of the Code of Criminal Procedure, 1973 for quashing the Criminal Proceeding pending against the petitioners in the court of the Sub-divisional Judicial Magistrate, Dhanbad, in G.R. Case No. 1806 of 1976 under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as "the Act") on the ground that taking of cognizance of the offence by the Chief Judicial Magistrate, Dhanbad, by order dated 21.7.1977, on the basis of the Charge sheet dated 4.7.1977, submitted by the Officer-in-Charge of Dhanbad Police Station, which did not disclose the (acts constituting the offence, was had in law and without jurisdiction in view of the mandatory provisions of section 11 of the Act, which lays down that no court shall take cognizance of any offence punishable under the Act, except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in section 21 of the Indian Penal Code. 2. The short facts leading to the filing of the present application are that on 2.6.1976 Shri Karu Ram, Marketing Officer, Dhanbad, had inspected the business premises of M/s Googan Lal Marwari of which the petitioners are partners, and, on the basis of the said Inspection, he had submitted a written report to the Officer-in-Charge of Dhanbad Police Station for prosecution of the petitioners under section 7 of the Act, and on the basis of the said written report which was treated as the first information report, Dhanbad P.S. Case No. 15 dated 8.7.1976 was registered, and after investigation, the Officer-in-Charge of Dhanbad Police Station had submitted charge-sheet dated 4.7.1977 against the petitioners for their prosecution under section 7 of the Act, which contained only the following statement of facts : 3. It was on the b1Sis of the said charge-sheet containing only the aforesaid statements of facts that the Chief Judicial Magistrate Dhanbad, took cognizance of the offence under section 7 of the Act, against the petitioners on 21.7.1977 by passing the following order :- "Received charge-sheet, Perused it Cognizance of the offence U/s 7 E.C. Act, is taken against the accused Gogan Lal Marwari and Mahendra Kumar named in Co. 4 of C.S. and ,case transferred to the file of Sri P.N. Yadav, J.M. Dhanbad for disposal. Accused Binod Kumar named in Col. 4 of C.S. and ,case transferred to the file of Sri P.N. Yadav, J.M. Dhanbad for disposal. Accused Binod Kumar named in Col. 2 of C.S. as not sent up for trial is discharged," 4. It is quite obvious from what has been stated above that the charge-sheet which, a, the order of the learned Chief Judicial Magistrate quoted above shows, was the only document perused by the Chief Judicial Magistrate and on the basis of which alone he had taken cognizance of the offence under section 7 of the Act, against the petitioners, did not disclose the facts constituting the offence and consequently taking of cognizance of the offence on the basis of such it charge sheet was had in law in view of the provisions of section 11 of the Act, which lays down that no court shall take cognizance of any offence punishable under the Act, except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in section 21 of the Indian Penal Code. 5. Mr. Ram Nandan Sahai Sinha, Government Pleader, appearing for the State, had contended that the facts of the case are to be found in the report of the informant, Sri Karu Ram, Marketing Officer, Dhanbad, submitted to the Officer-in-Charge of Dhanbad Police Station which was treated as the first information report and on the basis of which Dhanbad P.S. Case No. 15 dated 8.7.1976 was registered under Section 7 of the Act, against the petitioners which sufficiently complied with the requirements of section 11 of the Act, and hence there was no illegality in taking cognizance of the offence by the Chief Judicial Magistrate. There could have been some force in the aforesaid contention of Mr. Sinha had the order of the learned Chief Judicial Magistrate taking cognizance of the offence disclosed that he had taken cognizance on the basis of the said first information report of Shri Karu Ram, Marketing Officer, Dhanbad, or that he had perused it before taking cognizance; but, as the order of the learned Chief Judicial Magistrate quoted above shows, he had only perused the charge-sheet and it was only on the basis of the said charge-sheet, which did not disclose the facts constituting the offence under Section 7 of the Act, that he had taken cognizance of the offence. In such circumstances, the contenof Shri Sinha must be rejected and it must be held that taking of cognizance of the offence under Section 7 of the Act, against the petitioners by the Chief Judicial Magistrate on the basis of such a charge-sheet which do not disclose the facts constituting the offence was had in law in view of section 11 of the Act. 6. In this connection a reference may be made to a decision of the Oudh High Court in the case of Rachpal Singh and others Vs. Rex in which while dealing with rule 130 of the Defence of India Rules, 1939 which was similarly worded as section 11 of the Act, it had been held that the failure to mention facts constituting the contravention of a rule in the charge-sheet, on the basis of which cognizance had been taken, means the absence in the report of the very first of the numerous steps in course of the trial of something which is vital and goes to the very root of the case, and such an error in the report means that there was no proper report on which the machinery of the law could be set in motion and the case could proceed. In other words, the very foundations of the prosecution are defective and the entire superstructure must fail. It had further been held therein that the first information report made at the Police Station containing facts constituting the contravention of the rule cannot be deemed to be sufficient compliance with rule 130, when cognizance was not taken upon the first information report but upon the charge-sheet submitted which did not disclose the facts constituting, he contravention of the rule. 7. 7. Again, in the case of Jiwan Agrawal and others Versus The State of Bihar ( 1976 BBCJ 518 ) decided by this Court it has been held, while dealing with rule 183 (1) of the Defence and Internal Security of India Rules, 1971, which is similarly worded as Section 11 of the Act, that taking of cognizance on the basis of a charge-sheet which does not contain the statements of facts constituting the offence is had in law, and for the purpose of ascertaining the facts of the case the first information report cannot be looked into when the Magistrate himself did not claim to have looked into the first information report before taking cognizance and he had taken cognizance solely on the basis of the charge-sheet. A similar view has also been taken in another decision of this Court dated 11.1.1977 in Criminal Miscellaneous No 4020 of 1975 (Sri Narain Prasad Khirwal Vs. The State of Bihar) wherein, on a consideration of the decision of the Supreme Court in Deo Karan Dos Agrawal and others Vs. the State of Bihar (Criminal Misc. No. 38 of 1968), it has been held that the charge-sheet submitted in a case under the Act, must be held to be the report of a public servant as contemplated in section 11 of the Act, and such a charge-sheet must disclose the facts constituting the offence complained of, and, in case cognizance is taken on a charge-sheet which does not disclose the offence complained of, the taking of cognizance is bad in law, and it is not permissible in such a case to look into the first information report to find out what offence had been committed of which cognizance can be taken. The aforesaid view taken in the case of Sri Nanin Prasad Khirwal Vs. the State of Bihar has been followed in another decision of this Court dated 11.8.1977 in Criminal Misc. No. 123 of 1975 Ramayodya Singh Vs. The State of Bihar 8. I find myself in respectful agreement with the aforesaid decisions, and consequently I hold that taking of cognizance of the offence under section 7 of the Act, against the petitioners by the learned Chief Judicial Magistrate, Dhanbad, on the basis of the charge-sheet which did not disclose the facts constituting the offence, was had in law, and the report of the Marketing officer, Dhanbad. to the Officer-In-charge of Dhanbad Police Station which was treated as the first information report and on the basis of which Dhanbad P.S. Case no. 15 dated 8.7.1976 was registered, cannot be looked into or pressed into service to find out the facts constituting the offence, specially when the order of the learned Chief Judicial Magistrate shows that he had only perused the charge-sheet before taking cognizance and he had taken cognizance on the basis of the same which did not disclose the facts constituting the offence and he had not claimed to have perused the said first information report of Marketing officer Dhanbad or to have taken cognizance on the basis of the same. 9. For the aforesaid reasons, the application is all owed and the order dated 21.7.1977 of the Chief Judicial Magistrate, Dhanbad, in G.R. Case No. 1806 of 1976 taking cognizance under section 7 of the Act, against the petitioners on the basis of the charge-sheet dated 4.7.1977 is quashed being in contravention of section 11 of the Act, and consequently the criminal proceeding in that case presently pending in the court of Sub-divisional Judicial Magistrate, Dhanbad are also quashed. Application allowed.