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1991 DIGILAW 155 (PAT)

Sarjug Sah v. State Of Bihar

1991-04-11

NAGENDRA RAI

body1991
Judgment NAGENDRA RAI, J. 1. The petitioner has filed the present application for quashing the order, dated 6-8-1988, passed by the Special Judge (under E. C. Act), Madhepura, in Special Case No. 21 of 1986, taking cognizance under Section, 7 of the Essential Commodities Act and Section 409 of the Indian Penal Code, against the petitioner and three others. 2. Sri Harindra Nana, Executive Magistrate, Madhepur lodged a first information report on 20th August, 1986 at 6 P.M. alleging, inter alia, that the Sub-divisional Magistrate, Madhepura, ordered for an enquiry on the petition filed by one Surendra Kumar with regard to the irregularities committed in construction of the school buildings falling within Sakarpura Gram Panchayat under National Rural Employment Scheme. The Subi divisional Magistrate entrusted enquiry to him and he enquired into the matter and found that under the said Scheme a proposal to construct at building for primary school was approved and the petitioner, who wast Panchayat Sewak at the relevant time in Madhepura Block, was entrusted with the construction work of the said building. Rs. 9,000/- was given as advance for purchasing iron rods, for the construction of the building in question. The iron rods weighting 256 Kgs. purchased for the construcd tion of the said building were sold in the black market by the petitioned in conspiracy with the proprietor of the Madhepura Iron Trders. During inspection he also found that Madhepura Iron Traders had not issued cash memo or granted receipt with regard to the aforesaid 256 Kgs. iron rods found in its premises. He also found that no price list was displayed at the business premises of the iron traders and, accordingly, he lodged as written report and on the basis of which Madhepura Police registered a case against the petitioner and others for the offence under Section 7 of the Essential Commodities Act for the violation of the provisions of Bihar Essential Articles (Display of Price and Stock) Order, 1977 (hereinafter referred to as the Display Order) as well as Sections 409, 414 and 411 of the Indian Penal Code. The Police after investigation submitted eharge- Sheet under Section 7 of the E.C. Act and Section 409 of the Penal Code, and, thereafter, the Special Judge passed the impugned order. 3. Learned counsel appearing for the petitioner raised two points. The Police after investigation submitted eharge- Sheet under Section 7 of the E.C. Act and Section 409 of the Penal Code, and, thereafter, the Special Judge passed the impugned order. 3. Learned counsel appearing for the petitioner raised two points. Firstly, that the Special Judge, appointed under the E.C. Act, is not competent to take cognizance under Section 409 of the Penal Code, in view of the special provision of Section 12-AA (2) of E.C. Act, which provides, inter alia, that the special Court may also try an offence other than an offence under E. C. Act, with which the accused may be charged under the Code of Criminal Procedure at, the same trial provided such offence under the relevant law for the time being in force is triable in a summary way. As the offence under Section 409 of Penal Code is not triable in a summary. way, the cognizance taken with regard to the said offence is vitiated in law. Secondly, that no sanction was taken for the prosecution of the petitioner under the provisions of the Display Order. 4. On the other hand, learned counsel for the State submitted that facts alleged in the case constitute an offence under the Penal Code as well as under Essential Commodities Act and the accused may be charged together for the said offences at the same trial under the Code of Criminal Procedure and, accordingly, the petitioner can be charged and punished for both the offences by the Special Judge under Section 12-AA (2) of the Act. He also, stated that if both the offences will not be tried together by the Court constituted under the E. C. Act, in that case, the petitioner cannot be tried separately for the same acts and omissions on the ground that no person should be vexed twice for the same offence. In this connection be referred to the provisions of Article 20 (2) of the Constitution of India, Section 26 of the General Clauses Acts and Section 300 of the Code of Criminal Procedure. He also submitted that the question of sanction can be raised at any time and the Court, at the initial stage, cannot quash the prosecution for want of sanetion under the provisions of Display Order. 5. He also submitted that the question of sanction can be raised at any time and the Court, at the initial stage, cannot quash the prosecution for want of sanetion under the provisions of Display Order. 5. As in the present case, controversy centres round the language of Section 12-AA of the E. C. Act, it is necessary to quote the relevant part of the said Section 12-AA. Offences triable by Special Courts : (1) Notwithstanding anything contained in the Code, (a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court; * * * * (b) all offences under this Act shall be tried in a summary way and the provisions of Sections 262 to 265 (both inclusive) of the Code shall, as far as may be apply to such trial : Provided that in case of any conviction in a summary trial under this section, it shall be lawful for the Special Court to pass a sentence of imprisonment for a term not exceeding two years. * * * * * (2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code, be charged at the same trial : Provided that such other offence is, under any other law for the time being in force, triable in a summary-way : Provided further that in the case of any conviction for such other offence in such trial, it shall not be lawful for the Special Court to pass a sentence of imprisonment for a term exceeding the term provided for conviction in a summary trial under such. other law. * * * * * * * * The aforesaid amendment was inserted in the Principal Act by Act 18/81 [Essential Commodities (Special Provisions) Act]. The purpose and object for bringing the said amendment was that the provisions of the Act even after several amendments made earlier olid not achieve the object for which the Act was enacted. other law. * * * * * * * * The aforesaid amendment was inserted in the Principal Act by Act 18/81 [Essential Commodities (Special Provisions) Act]. The purpose and object for bringing the said amendment was that the provisions of the Act even after several amendments made earlier olid not achieve the object for which the Act was enacted. It was found, inter alia, that a large number of cases were pending under the E. C. Act all over the country and for dealing with more effectively and quickly the anti-social activities the aforesaid provisions were inserted in the Act. By the aforesaid amendment the Special Court was constituted for trial of the offence under the said Act and all the offences under the Act shall be tried in a summary-way. Sub-section (2), which is quoted above, provides trial of the offence under the Act as well as the trial of other offence with which the accused may be charged under the Code of Criminal Procedure at the same trial. 6. It is well-settled rule of interpretation that the primary and fore most task of the Court in interpreting the statutory provision is toi ascertain the intention of the legislature actual or imputed and after ascertaining the intention, the Court will make every endeavour to inter- prete the statute with a view to promote the object and the purpose of enactment. It is also well-settled that the words, phrases and the sentences should be construed according to the intendments of the legislature that passed the Act. If the words of statute are clear and precise among themselves no more is necessary than to expound those words, phrases and sentences in their natural and ordinary sence. Only in case of ambiguity or confusion the other rules of interpretation are to be followed with a view to find out the intention of the legislature. 7. The proviso is added to the section for different purposes and function, generally the proviso is subordinate to the main section and its function is to except and to deal with the case which would otherwise fall within the general language and meaning of the main section. Some times, it is added to an enactment of remove possible doubts by way of abundant cautions. In exceptional cases, the proviso is appended as substantive provision itself. 8. Some times, it is added to an enactment of remove possible doubts by way of abundant cautions. In exceptional cases, the proviso is appended as substantive provision itself. 8. Now, the relevant provisions of Section 12-AA of the E. C. Act have to be construed in the light of the aforesaid observations with a view to find out whether the submissions made on behalf of the petitioner is worth acceptance or not. 9. A bare reading of Section 12-AA E. C. Act clearly shows that all the offences under this Act are to be tried by a Special Court in a summary way. Sub-section (2) provides that the Special Magistrate may also try the offences other than the offence under this Act with which the accused could be charged and tried at the same trial under the provisions of the Code of Criminal Procedure. The first proviso added to the said sub-section says that only those offences as enumerated in sub-section (2) which are triable in summary way under the relevant law will be tried along with the offence under the Act by the Special Judge. The second proviso provides that in case of conviction for other offences at the trial by the Special Judge he cannot pass a sentence of imprisonment for a term exceeding the period provided for conviction for summary trial under such other law. Section 12-AA (1) (f) E. C. Act clearly shows that all offences under the Act should be triable in a summary way and in view of the aforesaid clear provision even in absence of the first proviso to sub-section (2), the only reasonable construction of provision of sub-section (2) would be that only those offences which are triable in a summary way under other Act would be tried along with the offence under the Act. The reason being that the trial of the offence under the other Act not triable in a summary way along with the offence under this Act would cause prejudice to the accused and would amount to violation of constitutional guarantee of fair trial. The first proviso to sub-section (2) of Section 12-AA of the E. C. Act has been added by way of abundant precaution by the legislature to clarify or to remove the possible doubt regarding the subject-matter covered by sub-section (2) of the aforesaid section. The first proviso to sub-section (2) of Section 12-AA of the E. C. Act has been added by way of abundant precaution by the legislature to clarify or to remove the possible doubt regarding the subject-matter covered by sub-section (2) of the aforesaid section. In my opinion, from reading of the relevant provisions of Section 12-AA of the E. C. Act it is clear that only those offences which are triable in a summary way under the other Act would be tried along with the offences under the E. C. Act by the Special Judge and the other offences which are not triable in a summary way have to be tried by other Court, according to the relevant provisions of the Code of Criminal Procedure or other Act. 10. If the submissions raised by the counsel for the State is accepted then the two provisos of the aforesaid sub-section would be redundant. It is well-settled that the Court should make every effort to make all provisions of section workable and no part of it may be made redundant by interpretation. In my opinion, it is clear from the provisions of the aforesaid section that the legislature intended with only those offences which are tried in a summary way should be tried along with the offences under the provisions of the E. C. Act. To give any other interpretation will make the first proviso to the said section redundant and will also frustrate the aims and objects of the amendment. 11. Learned counsel appearing for the State submitted that if the acts and omissions forming the part of the same transaction constituting offences both under the E. C. Act and under the General Law will not be tried by the Special Court and separate trials are heldOne for the offence under the E. C. Act and another for General Law, then one of the trials will be held to be bad in law on principle of double jeopardy. The aforesaid submissions at the first instance appeared to be attractive but on a closure scrutiny. It appears that the said submission is devoid of any substance. Article 20(2) of the Constitution of India which provides that no person shall be prosecuted and punished for the same offence more than once. The aforesaid submissions at the first instance appeared to be attractive but on a closure scrutiny. It appears that the said submission is devoid of any substance. Article 20(2) of the Constitution of India which provides that no person shall be prosecuted and punished for the same offence more than once. Section 300 of the Code of Criminal Procedure and Section 26 of the General Clauses Act enact the rules against the double jeopardy. Section 300 sub-section (1) Cr. P. C. provides, inter alia, that a person who has once been tried by a Court of competent jurisdiction for art offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence. Section 26 of the General Clauses Act provides as follows : Section 26. Provision as to offences punishable under two or more enactment : Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence. 12. The question of double jeopardy arises when an accused who is tried more than once for the same offence, but when the ingredients of the offence are different, though the acts and omissions may be the same, then the aforsaid principle does not apply and accused may be tried for more than once for different offences. The question is no longer res Integra and has been settled by the Supreme Court in catena of cases. In the case of State of Bombay V/s. S. L. Apte, reported in AIR 1961 SC 578 , the question involved was whether on the same allegation the accused was once tried and convicted under Section 409 IPC can again be tried for the offence under Section 105 of the Insurance Act. It appears from the facts of the said case that initially the acused persons were tried under Section 409 IPC and 105 of the Insurance Act and they were convicted and sentenced under both the sections. It appears from the facts of the said case that initially the acused persons were tried under Section 409 IPC and 105 of the Insurance Act and they were convicted and sentenced under both the sections. On appeal, the appellate Court maintained the conviction under Section 409 IPC but acqcitted the accused persons under Sec. 105 of the Insurance Act on the ground that there was no valid sanction 105 of the Insurance Act on the ground that there was no valid sanction for their prosecution. Subsequently, the Insurance Company, after obtaining, sanction filed a petition of complaint for their prosecution under Section 105 of the Act and the second trial was challenged on the ground of principle of double jeopardy. The Supreme Court has held as follows : "If, therefore, the offence were distinct there is no question of the rule as to double jeopardy as embodied in Article 20 (2) of the Constitution being applicable. The next point to be considered is as regards the scope of Section 28 of the General Clauses Act. Though Section 26 in its opening words referred to the act or omission constitute an offence under two or more enactments, the emphasis is not on the facts alleged in the two complaints but rather on the ingredients which constitute the two offences with which a person is charged. This is made clear by the concluding portion of the section which refers to "shall not be liable to be punished twice for the same offence". If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked. This is made clear by the concluding portion of the section which refers to "shall not be liable to be punished twice for the same offence". If the offences are not the same but are distinct, the ban imposed by this provision also cannot be invoked. It there fore follows that in the present case as the respondents are not being sought to be punished for "the same offence" twice but for two distinct offences constituted or made up of different ingredients the bar of the provision is inapplicable." In passing, it may be pointed out that the construction, we have placed on Article 20 (2) of the Constitution and Section 26 of the General Clauses Act, is precisely in line with the terms of Section 403 (2) of the Criminal Procedure Code." Recently, the Supreme Court in the case of State of Bihar V/s. Murad Ali Khan, reported in 1989 PLJR 6 : 1989 (1) BLJ 168 (SC), has held that if there are two distinct and separate offence with different ingredients under two different enactments, a double punishment is not barred : 13. In view of the aforesaid authoritative pronouncements of the Supreme Court the submission made on behalf of the counsel for the State is rejected. 14. In the present case cognizance has been taken under Section 409, I.P.C. and the said offence is punishable with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Section 260 of the Code of Criminal Procedure provides for summary trial and sub-section (1) Section 260 provides, inter alia, that any Chief Judicial Magistrate ; any Metropolitan Magistrate and any Magistrate of the first class, specially empowered in this behalf by the High Court may, if he thinks fit, try in a summary way the offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years ; as well as other specific offences enumerated in the aforesaid section. As one of the sentence provided for the offence under Section 409, I.P.C. are imprisonment for life or imprisonment for a term exceeding upto ten years, the said offence cannot be tried in a summary way under the Code of Criminal Procedure and, accordingly, the Special Judge has no power to take cognizance and try the offence under Section 409, I.P.C. along with the offence under the Act, in view of proviso to sub-section (2) of Section 12-AA. 15. In support of his second submission, learned counsel for the petitioner referred to the provisions of Clause 6 of the Bihar Essential Articles (Display of Price and Stocks) Order, 1977 and stated that according to the proviso to the said clause sanction for prosecution is essential and as in this case no sanction has been obtained, the prosecution is not sustainable in law. The counsel appearing for the State, on the other hand, did not challenge the factual aspect of the matter but contended that the question of sanction will be considered at the subsequent stage of the trial. A bare reading of proviso to Clause 6 of the said Control Order show that no prosecution shall lie against a person for contravention of any of the provisions unless there is valid sanction by the authority mentioned therein and in this case there is no sanction order on the record and in absence of the same, in my opinion, the prosecution for violation of the said Control Order is not permissible in law. This Court in the case of Shree Lal Saraf V/s. The State of Bihar, reported in 1987 PLJR 678, has held that in absence of prosecution; the cognizance is bad in law. 16. After considering the respective submissions raised on behalf of the parties, I hold that the Special Judge has no power to take cognizance and try the offence under Section 409, I.P.C. as the same is not triable in a summary way under the provisions of the Code of Criminal Procedure. The prosecution of the petitioner for offence under Section 7 of the E. C. Act is also not sustainable in law for want of valid sanction for prosecution, as required under the proviso to Clause 6 of the said Control Order. 17. The prosecution of the petitioner for offence under Section 7 of the E. C. Act is also not sustainable in law for want of valid sanction for prosecution, as required under the proviso to Clause 6 of the said Control Order. 17. In the result, the application is allowed and the order taking cognizance is quashed with the observation that it will be open for the prosecution to file a fresh report for prosecution of the petitioner for the offence under Section 7, E. C. Act after obtaining sanction, as provided under Clause 6 of the Display Order. It will also be open for the prosecution to take steps for prosecution of the petitioner for the offence under Section 409, I.P.C.. under the relevant provisions of the Code of Criminal Procedure.