S. K. DHAON, J. ( 1 ) BY means of this application under section 482 of the Code of Criminal Procedure, 1973 (herein after referred to as the Code) an order purporting to have been passed under section 319 of the Code directing the applicant to face his prosecution for committing an offence under section 3/7 read with Section 8 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) is being impugned. ( 2 ) ONE Badal Dass is being prosecuted before the special Judge (Essential Commodities Act) under section 3/7 of the Act. The prosecution Case is that Shri Banal Dass, a licensed miller, failed to supply to the State Government certain quantity of rice thereby contravening clause (3) (i) if the U. P. Rice and Paddy (Levy, Regulation and Trade) Order, 1981. The prosecution examined Shri Jai Prakash, the applicant, as one of its witnesses. In his deposition the applicant admitted that during the relevant period he was running the rice mill in question on behalf of Shri Banal Dass and during the relevant period he was in actual physical control of the rice mill. He also deposed that he was aware that certain amount of rice, had to be supplied to the State Government as a levy. Shri Banal Dass made an application under section 319 of the Code praying that the applicant too be prosecuted along with him. The Special Judge while accepting the said application has taken the view that, prima facie, the applicant has committed an offence. He has, therefore, issued non bailable warrants against the applicant. ( 3 ) LEARNED counsel for the applicant has submitted that on a combined reading of the provisions contained in Sections 8 and It of the Act it is apparent that the learned Special Judge has no jurisdiction to proceed against the applicant without taking a fresh cognizance of the offence as against the applicant on the basis of a report in writing made in accordance with the provisions contained in Section 11. The Special Judge cannot proceed against the applicant by taking resort to the provisions of Section 319 of the Code. In other words, the submission is that by necessary implication the operation of the provisions of Section 319 of the Code stands excluded in proceedings in respect of any offence punishable under the Act. The Special Judge cannot proceed against the applicant by taking resort to the provisions of Section 319 of the Code. In other words, the submission is that by necessary implication the operation of the provisions of Section 319 of the Code stands excluded in proceedings in respect of any offence punishable under the Act. ( 4 ) THE question is : Are the provisions of Section 319 of the Code in any manner repugnant to the provisions of Section 11 of the Act? For answering this question we will have to determine the scope and ambit of Section 11 of the Act, Section 7 of the Act provides for the punishment for the contravention of any order made under section 3 of the Act. Section 8 and 11 may be extracted: Section 8- Any person who attempts to contravene, or abets a contravention of any order made under Section 3 shall be deemed to have contravened that order. Section 11-No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by order of, or under authority from the District Magistrate or such other officer as may be empowered by the State Government by general or special order in this behalf. At the time when the Act was brought into the statute book the provisions of Code of Criminal Procedure, 1898 (hereinafter referred to as the Old Code) were in operation. The view taken by the Courts under the Old Code was that once cognizance had been taken of a certain offence by a competent court and it transpired to that court later on that some persons, other than the accused before it, should also face their prosecution for committing the same offence along with accused already before it such persons could be summoned by the Court wit bout taking a fresh cognizance of the offence. However, if the Court came to the conclusion that some other persons were liable to be prosecuted or committing an offence different to the one of which it had taken cognizance but such person should be tried along with the accused already before it, summons could not be issued to such persons without taking cognizance of the offence attributed to them. Section 351 of the Old Code empowered the Court to detain any person attending it (the Court) for the purpose of enquiry into or trial of any offence of which such Court could take cognizance and which, from the evidence, appeared to have been committed. The Court could proceed against such a person although he had not been arrested or summoned. Here too, the view taken was that such a person could be proceeded against straightway for committing an offence of which cognizance bad already been taken by the Court without taking a fresh cognizance. On the other hand, if the Court felt that such a person should be proceeded against for committing an offence of which cognizance had not already been taken by it, the court had first to take cognizance and then proceed against the person concerned. It may be noted that Section 351 was confined in its operation to a person attending a Court. If the person was not before the Court he could not be detained and, therefore, this provision could not be used against him. The other feature was that the Indian Penal Code in Section 109 did not make an attempt to commit an offence punishable. The question whether the provisions of Section 109 of the Indian Penal Code could be invoked for punishing a person who had abetted a contravention of any law or Order under a special statute was also debatable. ( 5 ) LET us now consider the purpose for which Section 8 found its place in the Act. Before doing so, Section II may be considered. This provision, as it originally stood in the Act, was 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 was a public servant as defined in Section 21 of the Indian Penal Code. The provision, as quoted above, was substituted by U. P. Act no. 9 of 1974. It is evident that Section II was and is in contradiction of Section 190 of the Old Code as well as the Code. Section II of the Act, as it originally stood, was in pan materia with Section. 11 of the Essential Supplies (Temporary powers) Act, 1946. 9 of 1974. It is evident that Section II was and is in contradiction of Section 190 of the Old Code as well as the Code. Section II of the Act, as it originally stood, was in pan materia with Section. 11 of the Essential Supplies (Temporary powers) Act, 1946. The Supreme Court in Bhagwati Saran and another v. State of U. P. 1 considered the function or the purpose of Section 11 of the latter Act thus: The function or purpose of the second of the above three requirements of Section 11 is to eliminate private individuals such as rival traders or the general public from initiating a prosecution and for this purpose before cognizance is taken the complaint is required to emanate from a public servant. The two further, requirements, viz, that the report should be in writing and regarding the contents of the report, are to ensure that there shall be a record that the public servant is satisfied that a contravention of the law has taken place. . ( 6 ) ACCORDING to Section 8, any person who attempts or abets a contravention of any order made under section 3 shall be deemed to have contravened that order. In it a legal fiction has been created. It means that in the eye of law any person who attempts or abets shall be kept at par with the person who actually contravences an order made under section 3. To put it differently, persons failing in either of the three categories shall be held liable for contravening any order made under section 3. Likewise, persons falling in either of the three categories should be subject to the penalties enumerated in Section? Therefore, it is apparent that the purpose of creating a legal fiction in Section 8 is to put attempters and abettors at per with the offenders of any order made under section 3 for the purposes of punishment. ( 7 ) IN Raghubansh Dube v. State of Bihar2 the Supreme Court considered the import of the word cognizance of any offence under the Old Code which was in operation when the Act was brought- into force with Sections 8 and 11. ( 7 ) IN Raghubansh Dube v. State of Bihar2 the Supreme Court considered the import of the word cognizance of any offence under the Old Code which was in operation when the Act was brought- into force with Sections 8 and 11. Speaking through Sikri J. {as he then was) it said: "in our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes Cognizance of an offence it is his duty to find out who the offenders really arc and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in (1965) S. C. R. 269; (A. I. R. 1965 S. C. 1185) the term complaint would include allegations made against persons unknown. If a Magistrate takes cognizance under Section 190 (1) (a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted even though persons who had committed the offence were not known at that time. The same position prevails, in our view, under Section 190 (1) (b ). ( 8 ) THE next question is did the Legislature, by creating a fiction in Section 8, intend that the law as it prevailed then and as enunciated by the Supreme Court in the case just quoted and as contained in Section 351 of the Old Code should be ignored while administering Section 8 read with Section 11 of the Act? Differently stated, did the Legislature intend that, despite the fact that a competent Court had taken cognizance of a certain offence under the Act in accordance with Section 11 and some person was facing his prosecution before the Court a fresh complaint in accordance with Section 11 should be filed to enable the Court to proceed against some persons who were not before it but who were considered liable for prosecution under section 5 for the same offence of which the Court had already taken cognizance. Subsection (2) of Section 5 of the Old Code provided that all offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provision, but subject to any enactment for the time being in force, regulating the manner or place of investigation, enquiring into, trying or otherwise dealing with such offence. Normally, a complaint in accordance with Section 11 of the Act was required to be filed in order to initiate proceedings against persons falling in Section 8. That is the clear import of the legal fiction. But this fiction was not intended to have any play in relation to the filing of a complaint and the taking of the cognizance of an offence under section II, if in accordance with that provision a complaint had already been filed and upon that complaint cognizance of an offence had already been taken and proceedings were sought to be taken under section 8 against persons for having committed the same. If the Legislature thought otherwise, surely it would have used better language to express its intendment, particularly when it was aware of the prevailing law and the provisions contained in sub section (2) of Section 5 of the Old Code. The Legislature, in my opinion, did not intend to throw the prevailing law under the old code overboard. It did not create the legal fiction in Section 8 for that purpose. In any view of the matter even if it intended to make the law prevailing at that time in applicable to proceedings under section 8 of the Act, it failed to achieve that purpose. ( 9 ) THERE is yet another aspect of the matter. The clear intention of the Legislature in Section 8 was to punish the offenders falling under section 8 as if they had contravened the terms of an order made under section 3. In such a situation there was no point in duplicating the work of the public servant by directing him to make a fresh report of the commission of an offence of which he had already made a report. The Legislature could not have intended that the Court concerned too should have applied its mind afresh for the purpose of taking a fresh cognizance of the offence of which it had already taken cognizance. The Legislature could not have intended that the Court concerned too should have applied its mind afresh for the purpose of taking a fresh cognizance of the offence of which it had already taken cognizance. ( 10 ) SECTION 12ac provides for the application of the Code to proceedings before a Special Court in the following words; Save as otherwise provided in this Act, the provisions of the code (including the provisions as to bail and bonds) shall apply to the proceedings before a Special court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a public prosecutor. Section 2 (ia) of the Act defines Code to mean the Code of Criminal Procedure 1973. Section 12 A of the Act provides for the constitution of Special Courts. It is not disputed that the learned Special Judge, in the instant case, is acting as Special Court within the meaning of Section 12 A. The plain meaning of this provision is that all the provisions of the Code shall apply to the proceedings before the Special Court except those excluded by the Act. This provisions has been inserted by the Legislature to mitigate the rigor created by Section 5 of the Code which provides that nothing contained in the Code shall in the absence of a specific provisions to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form or procedure prescribed, by any special law for the time being in force. ( 11 ) WE have already seen that the application of the provisions of Section 190 of the Code stands excluded. By a fiction, the Legislature has in Section 12 AC equated the Special Court with the Court of Session. Section 193 of the Code provides that in a normal situation no Court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by the court of the Magistrate under the Code. The said provision also contains explanation, one of them being that any other law for the time being in force may empower a court of Session to take cognizance of any offence by itself. The said provision also contains explanation, one of them being that any other law for the time being in force may empower a court of Session to take cognizance of any offence by itself. At this stage Section 11 comes into picture again. Compliance of Section 11 bas been made in the instant case in so far as the learned Special Judge has taken cognizance of the offence upon a report made in writing in accordance with that provision. The cognizance having been taken in accordance with the provisions of the Act, there is now no impediment in the application of the provisions contained in Section 319 of the Code. The provisions contained in sub section (4) of Section 319 may now be focussed. Sub-section (1) of Section 319 provides: Where, in the course of any inquiry into, or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. It will be immediately seen that the said provision will take in its fold an abettor of an offence when a person alleged to have committed the same offence is before the court. Sub section (4) may now be read: 11 (4) Where the Court proceeds against any person under sub section (1) then (a) the proceedings in respect of such person shall be commenced afresh, and the witness reheard. (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced. In clause (b) we find a legal fiction. The purpose of this fiction is to assume that the person referred to in sub section (I) and against whom the Court is proceeding was an accused person when the Court took cognizance of the offence. The Legislature here is giving a mandate to treat an imaginary affair as real. It enjoins upon the Court to treat the person concerned as an accused on the footing that he was be fore it (the court) at the time when it took cognizance of the offence. The Legislature here is giving a mandate to treat an imaginary affair as real. It enjoins upon the Court to treat the person concerned as an accused on the footing that he was be fore it (the court) at the time when it took cognizance of the offence. Applying this fiction, to the facts of the instant case, the learned Special Judge was justified in assuming that the applicant was before him as an accused when the took cognizance of the offence alleged to have been committed by Shri Banal Das. The learned Special Judge, therefore, acted in accordance with law when he passed an order to proceed as against the applicant under section 319 of the Code. ( 12 ) IN Joginder Singh and another v. State of Punjab3, Section 319 of the Code came up for consideration. The facts of the case were these. A criminal case was registered at a Police Station against Joginder Singh, Ram Singh (the two appellants before the Supreme Court) and Bhan Singh, Darshan Singh and Ranjit Singh. The Police found the two appellants before the Supreme Court innocent and, therefore, did not submit any charge sheet against them. However, it submitted a chargesheet against the remaining three persons. The case in which the three persons had been charge sheeted was committed to the Court of Sessions. Charges were framed against them. Certain witnesses were examined who implicated the two appellants before the Supreme Court. Upon an application made by the Public Prosecutor the Trial Judge passed an order directing that the attendance of the two appellants be procured. It further directed that they should stand their trial together with the three accused. The appellants having lost before the High Court in the writ petitions preferred by them, approached the Supreme Court by means of a Special Leave Petition. The argument before the Supreme Court was that having regard to the provisions of Sections 193 and 205 of the Code there was a bar to the Court of Sessions taking cognizance of any offence as the court of original jurisdiction unless the appellants were committed to it by a Magistrate under the Code. The argument before the Supreme Court was that having regard to the provisions of Sections 193 and 205 of the Code there was a bar to the Court of Sessions taking cognizance of any offence as the court of original jurisdiction unless the appellants were committed to it by a Magistrate under the Code. The other argument was that the provisions of Section 319 were not applicable as the phrase any person not being the accused occurring in the said Section excluded from its operation an accused who had been realised by the police under section 169 of the Code. For the present controversy the first argument is relevant. In paragraph 6 Honble Tulzapurkar; J. speaking for the Court, observed: A plain reading of Section 319 (1) which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all die Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused arid direct him to be tried along with the other accused but the question is whether it has power to do so without there being a committal order against such person? In this context the provisions of Sections 193 and 209 of the present Code vis-a-vis the equivalent provisions under the old Code will have to be considered. Section 193 and Section 209 of the present code fun as follows: 193. Cognizance of offences by courts of Sessions: Except as otherwise expressly provided by this code or by any other law for the time being in force, no court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code. 2o9 Commitment of case to court of Sessions when offence is triable exclusively by it. 2o9 Commitment of case to court of Sessions when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall - (a) commit the case to the Court of Session: (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial, (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence: (d) notify the public Prosecutor of the Commitment Of the case to the Court of Session. It will be noticed that both under section 193 and Section 209 the commitment is of the case and not of the accused whereas under the equivalent provision of the old code viz. section 193 (1) and Section 207 A it was the accused who was committed and not the case. It is true that there cannot be a committal of the case without there being an accused person before the Court, but this only means that before a case in respect of an offence is committed there must be some accused suspected to be involved in the crime before the Court but once the case in respect of the offence qua those accused who are before the Court is committed then the cognizance of the offence can be said to have been taken property by the Sessions Court and the bar of section 193 would be out of the way and summoning of additional persons who appears to be involved in the crime from the evidence led during the trial and directing them to stand their trial along with those who had already been committed must be regarded as incidental to such cognizance and a part of the normal process that follows it : otherwise the conferral of the power under Section 319 (1) upon the Sessions Court would be rendered nugatory. Further Section 319 (4) (b) enacts a deeming provision in that behalf dispensing with the -formal committed order against the newly added accused. Further Section 319 (4) (b) enacts a deeming provision in that behalf dispensing with the -formal committed order against the newly added accused. Under that provision it is provided that where the Court proceeds against any person under sub-section (1) then the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced: in other words, such person must be deemed to be an accused at the time of commitment because it is at that point of time the Sessions Court in law takes cognizance of the offence. Then in paragraph 8 their Lordships observed: It will thus appear clear that under Section 193 read with Section 209 of the Code when a case is committed to the Court of Sessions in respect of an offence the Court of Session takes cognizance of the offence and not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under Section 319 (1) can come into play and such Court can add any person, not an accused before it, as an accused and direct him to be tried with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial. Looking at the provision from this angle there would be no question of reading Section 319 (1) subject or subordinate to Section 193. ( 13 ) THE ratio of the decision in Joginder Singhs case (supra) is opposite to the facts and circumstances of the instant case. The Supreme Court has clearly ruled that once cognizance of an offence has been taken by a particular court and once that Court is properly seized of the case and some accused are before it, the provisions of Section 319 (1) can be invoked. Therefore the action of the Special Judge in adding the applicant as an accused in the proceedings in which Banal Dass has already been arrayed as an accused is perfectly legal. ( 14 ) THIS application lacks merits and is dismissed summarily. (Application dismissed in limini) .