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1985 DIGILAW 188 (PAT)

Ram Bilas Sah v. State of Bihar

1985-05-24

B.P.GRIYAGHEY

body1985
JUDGMENT : B. P. Griyaghey, J.-This is an application under section 482 of the Code of Criminal Procedure for quashing the ORDER :dated 11th October, 1980 passed by the Chief Judicial Magistrate, Madhubani, in G. R. Case No. 232 of 1980 taking cognizance in the case against the petitioner under section 7 of the Essential Commodities Act. 2. The Sub-divisional Magistrate, Madhubani, on 12.3.1980, made a raid of the shop of the Firm M/s Rambilas Kirana Bhandar, of which the petitioner is said to be the proprietor, and in the raid it was found that certain articles of the shop were kept on the backside of the shop, the stocks of which were noted neither in the stock or sale Register of the shop nor on the Display Board. A report was thus given at the Police Station for prosecution of the petitioner for the infringement of the ORDER :s both under the Bihar Essential Articles (Display of Prices and Stocks) ORDER :, 1977, (wrongly mentioned as 1970) (hereinafter to be referred to as 'the Display ORDER :') and the Bihar Foodgrains Dealers, Licensing ORDER :, 1967 (hereinafter to be referred to as 'the Foodgrains ORDER :'). On such report, a case was instituted at Madhubani Police Station. The police submitted charge sheet, and then the Chief Judicial Magistrate by his impugned ORDER :has taken cognizance against the petitioner under section 7 of the Essential Commodities Act for infringement of both above ORDER :s. 3. The learned counsel for the petitioner has raised only one point, namely, on clause 6 of the Display ORDER :which provides that no prosecution can lie for infringement of any direction contained in this ORDER :without the prior sanction of certain authorities mentioned in that Clause. Clause 6 of the Display ORDER :runs as follows : "6. Power of entry, inspection, search, seizure etc.......... . provided that no prosecution shall lie against a person for contravention of any of the provisions of this ORDER :unless the same has been sanctioned by the District Magistrate or Special Officer Incharge Rationing or Additional District Magistrate (Supply) or Sub-divisional Magistrate within limits of their respective local jurisdiction." 4. Power of entry, inspection, search, seizure etc.......... . provided that no prosecution shall lie against a person for contravention of any of the provisions of this ORDER :unless the same has been sanctioned by the District Magistrate or Special Officer Incharge Rationing or Additional District Magistrate (Supply) or Sub-divisional Magistrate within limits of their respective local jurisdiction." 4. On behalf of the State, it has been contended in reply that the prosecution in the present case is for the infringement of both the Dispaly ORDER :as well as the Foodgrains ORDER :, and that for the latter ORDER :no sanction is required, and that, therefore, the prosecuti0n can well proceed so far at least for the infringement of the Foodgrains ORDER :. But this contention of the learned counsel for the State cannot be accepted in view of the fact that in the present case on the same set of facts, namely, that certain items of the stock were not noted either in the Stock and Sale Register or on the Display Board, the prosecution has been started for the infringement of both the ORDER :s, the Display ORDER :and the Foodgrains ORDER :. To permit the prosecution to continue for the. Foodgrains ORDER :only would mean to circumvent the provisions of the Display ORDER :which requires prior sanction for the prosecution. This view finds support with the decision of this Court in the case of Suresh Kumar Agrawal vs. The State of Bihar in Cr. Misc. No. 951 of 1981 with Cr. Misc. No. 2129 of 1981 decided on 9th December, 1983. This has been the consistent view of this Court on principle also as long as ago in the year 1955 in the case of K. P. Sinha vs. Aftabuddin reported in A.I.R. 1955 Patna 453. 5. The second branch of the argument of the learned counsel for the State in this regard by way of reply is that the aforesaid Clause 6 of the Display ORDER :(quoted above) specifies the names of several officers as authorities which can sanction the prosecution for such a case. 5. The second branch of the argument of the learned counsel for the State in this regard by way of reply is that the aforesaid Clause 6 of the Display ORDER :(quoted above) specifies the names of several officers as authorities which can sanction the prosecution for such a case. It is submitted by the learned counsel for the State that since, in the present case, the Sub-divisional Magistrate was the person who had filed the complaint and the Sub-divisional Magistrate is one of such officers under that clause who can accord a sanction, it may be deemed that in the present case the sanction was implied. But I am unable to accept even this contention of the learned counsel for the State, because the act of sanction is something different from the act of filing a complaint. In a case of Mohd. Iqba I Ahmed vs. The State of Andhra Pradesh• reported in A. I. R. 1979 S.C. 677, their Lordships of the Supreme Court observed as follows : "The grant of sanction is not an idle formality or an acrimonious exercise but a solemn strictly and sacrosanct act....... and must therefore be strictly complied with before any prosecution can be launched..." In the act of an authority while considering whether sanction should be accorded or not, there is an element of applying a judicial mind to the facts and circumstances alleged in the petition of complaint and, therefore, in my opinion, that• act of according the sanction should not be exercised by the same person who is the complainant of the (sic). Similar is the strain in the views expressed by their Lordships in a Bench Decision of this Court in the case of M/s Googan Lal Marwari vs. The Additional District Magistrate (Supply) & Ors. (Civil Writ Jurisdiction Case No. 108 of 1977(R) decided on 6th September, 1977. So similar is the view expressed in the case of Chaman Modi vs. The State of Bihar reported in 1975 B.B.C.J. 688. Therefore, in the present case, only because the Sub-divisional Magistrate himself is the complainant of the case, that will not dispense with the necessity of a sanction for the prosecution and, secondly, the sanctioning authority cannot be the Sub-divisional Magistrate in the, present case, as he happens to be the complainant. Therefore, in the present case, only because the Sub-divisional Magistrate himself is the complainant of the case, that will not dispense with the necessity of a sanction for the prosecution and, secondly, the sanctioning authority cannot be the Sub-divisional Magistrate in the, present case, as he happens to be the complainant. It may be noted that the above quoted Clause 6 of the Display ORDER :specifies a list of several officers, any of whom can sanction such a prosecution and, therefore, in the present case, the prosecution should have been sanctioned by any of those other officers, other than the Sub-divisional Magistrate. The argument of the learned counsel for the State in reply in this connection, cannot, therefore, be accepted. The prosecution of the petitioner of the present case, therefore, suffers from for the want of sanction. 6. In the result, this application is allowed and the impugned ORDER :is quashed.