JUDGMENT 1. - These two petitions arising out of F.I.R. No. 69/89 registered at police station Malviya Nagar (Jaipur City) and common order dated the 15th January, 1990 of the Special Judge, Special Court (Under Essential Commodities Act), Jaipur City, Jaipur, have been heard together and are being disposed of by this order. 2. M/s Shruti Enterprises, partnership firm consisting of partners, Prem Prakash Bhardwaj and Smt. Shobha Bhardwaj, is allegedly an authorised distributor of Handy Gas for the areas, Jaipur, Ajmer, Tonk and Sikar districts of M/s Associated Cylinder Industries Pvt. Ltd., Jammu, and admittedly, with the firm, the petitioners have no concern. 3. A criminal case bearing F.I.R. No. 69/89 was registered at police station Malviya Nagar for offence under Section 286, Indian Penal Code, and Section 3/7 of the Essential Commodities Act, 1955 (for brevity, 'the Act') on a report lodged by Ramesh Chand Meena on April 29, 1989 alleging therein that, a garage situated outside residential plot No. 144, Nandpuri Colony of Malviya Nagar, Jaipur was a godown for storage of gas cylinders; that, on April 26, 1989 handy gas cylinders in addition to big ones, brought in a matador were stored in the said garage; that, Samundra Singh and Ramgopal - employees of M/s Shruti Enterprises were found filling up gas from one cylinder to another but at ,.bout 6.30 p.m. a sudden violent burst with a loud thereby two persons, aforesaid, sustained burnt injuries. Subsequently, both the injured persons, named above, died, and Section 304, Indian Penal Code was added. 4. Smt. Shobha and Prem Prakash Bhardwaj, Partners of the Firm, moved for their anticipatory bail under Section 438, Criminal Procedure Code in S.B. Cr. Misc. Bail Petition No. 1365/89 (Order reported in 1990 (1) RLR 528 ). Admittedly, the prosecution case is that the cooking gas stored in handy gas cylinders is compressed gas and not liquefied petroleum product. That being so, the Public Prosecutor arguing in the bail application, frankly conceded during the course of the hearing, that the provisions of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1988 (for short, 'the Order, 1988') was not applicable to the present case. That being so, the Public Prosecutor arguing in the bail application, frankly conceded during the course of the hearing, that the provisions of the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1988 (for short, 'the Order, 1988') was not applicable to the present case. Therefore, this Court observed as under : "Confronted with the above, Shri V.S. Gurjar, learned counsel for the petitioner wrangled with his legal quibbling that there is no dispute that the petitioners firm was dealing in handy gases and the same is not covered by the provisions of the Order, 1988 so as to apply the provisions of the Essential Commodities Act. This position has been fairly and frankly conceded by the learned Public Prosecutor for obvious reasons. I am also of the opinion that the storing of the handy gas cylinder does not fall within the purview of Rajasthan Petroleum Products (Licensing and Control) Order,1979 and the Order, 1988, and, therefore, not punishable under Section 3 read with Section 7 of the Essential Commodities Act. Cooling gas stored in a handy gas cylinder is compressed gas and not liquefied petroleum products. The matter is governed by the Explosive Act, 1884 and Gas Cylinders Rules, 1981 framed by the Central Government as is contended by the petitioners in the bail petition." The police after investigation found that M/s Shruti Enterprises is a partnership firm and before 24.4.1989, though Smt. Shobha Bhardwaj and Kumari Shruti (petitioner) were its partners but petitioner, Kumari Shruti, retired from partnership, and a new partnership firm was constituted on 27.6.89 between Prem Prakash and Smt. Shobha Bhardwaj. The police also found that offence punishable under Section 3/7 of the Act was not prima facie made out against any one of the accused, but offence under Section 304-B, Indian Penal Code 286, and 120-B, Indian Penal Code and Rule 51 of the Gas Cylinders Rules, 1981 read with Section 9-B and 9-C of the Indian Explosive Act was prima facie made out. 5. Charge-sheet No. 72 of 7th October, 1989 was filed before the judicial Magistrate No. 3, Jaipur City, Jaipur against the accused including the petitioners. Learned Judicial Magistrate vide order dated 2.11.89 took cognizance upon the charge-sheet, referred to above, under criminal case No. 826/89. 6. The petitioners appeared before the Special Judge, on 14.9.1989. 5. Charge-sheet No. 72 of 7th October, 1989 was filed before the judicial Magistrate No. 3, Jaipur City, Jaipur against the accused including the petitioners. Learned Judicial Magistrate vide order dated 2.11.89 took cognizance upon the charge-sheet, referred to above, under criminal case No. 826/89. 6. The petitioners appeared before the Special Judge, on 14.9.1989. The Special Judge on 14.9.1989 directed the Investigating Officer to produce a copy of the entries appearing in the case diary along with other documents in the light of the provisions of Section 167 (1) Criminal Procedure Code so as to apprise the Court of the progress in the case, and further directed the parties to address the Court on the point, whether on the material available on record on 14.9.89, the cognizance for the alleged offences can be taken or not. According to the learned counsel for the petitioners, the Special Judge adopted injudicious procedure on 14.9.1989 while issuing directions to keep the copy of the entries appearing in the case diary and documents separately. 7. The order dated 14.9.89 of the Special Judge, referred to above, was challenged in S.B. Criminal Mix. Petition No. 1056/89 before this Court by Prem Prakash Bhardwaj. In the said petition decided on October 27, 1989, the arguing Public Prosecutor conceded that the Special Judge had no jurisdiction to direct the production of documents from the case diary prior to the stage that a final report or charge sheet is submitted in the Court, inasmuch as the case diary can only be used for limited purpose and not for finding out the documents which may or may not make out a case against a party. This Court observed as under : "... This Court observed as under : "... before passing the impugned order the learned Judge should have first decided in light of the judgement delivered in Abhinandan Jha v. State of Bihar ( AIR 1968 SC 117 ) and further explain though on some points distinguished also in AIR 1980 SC 1980, hence I deem it proper to direct the learned Special Judge to first decide as to whether he could have directed the Public Prosecutor to produce the document from the diary before the investigating officer has formed its own opinion and has decided to file a police report and then also to make it clear that he intends to proceed under which part of Section 190(1) Cr.P.C. It is only thereafter that he will take cognizance in the case. The learned Special Judge shall proceed with the case onwards in the light of the observations made above. The learned counsel for the petitioner should advance the arguments before the learned Special Judge which he seeks to advance before this Court and I am not inclined to interfere at this stage. It will however be open to the petitioner to approach this court if there is any grievance remaining and he is so advised." 8. The police then submitted a charge sheet against the accused persons for the offences under Sections 304, 286, 120-B, Indian Penal Code and R. 51 of the Gas Cylinders Rules, 1981 read with Section 9-B and 9C of the Explosive Act. It was stated in the charge-sheet that offence under Section 3/7 of the Essential Commodities Act was not prima facie made out against any of the accused persons. An application was moved by the Police Inspector, CID (CB), Jaipur, before the Special Judge(EC Act), to release the accused under Section 169, Criminal Procedure Code keeping in view the fact that the charge sheet has already been filed before the judicial Magistrate No.3, Jaipur City where the proceedings under case No.826/89 were pending, and further that, office (sic offence) under Section 3/7 of the Essential Commodities Act was not found to have been committed by the accused. However, the learned Special Judge vide his order dated 15.1.1990 took cognizance under Section 3/7 of the Act. Feeling aggrieved against the order of taking cognizance, the petitioners have approached this court under Section 482, Criminal Procedure Code. 9. However, the learned Special Judge vide his order dated 15.1.1990 took cognizance under Section 3/7 of the Act. Feeling aggrieved against the order of taking cognizance, the petitioners have approached this court under Section 482, Criminal Procedure Code. 9. I have heard the learned counsel for the parties and perused the record in addition to the papers annexed to the respective petitions. 10. First contention of the learned counsel for the petitioners was that the procedure adopted by the Special Judge was inappropriate because, he has erred in calling for the record from the police case diary on 14.9.89 directing the Asstt. Public Prosecutor to submit the copies of the documents from the case diary in addition to the entries made therein. Such a direction was challenged before this Court in S.B.Criminal Misc. Petition No. 1056/89 which was allowed on 27.10.1989 with the observations, quoted above. Shri R.S.Rathore therefore, strenuously urged that even after observations made by this Court, the learned Special Judge failed to comply with the directions issued by this Court in order dated 27.10.89 (supra) and in this state of disobedience he took cognizance under Section 190(1)(b), Criminal Procedure Code whereas no police report was produced before him under Section 173(2), Cr.P.C. Further more, according to Shri Rathore, the learned Special Judge grossly erred in observing that even after the state of the above situation, the Court had always powers and every jurisdiction to direct the production of the documents from the case diary prior to the filing of the police report under Section 173, Criminal Procedure COde. 11. Shri Rathore drew my attention to the following statement made by the learned Public Prosecutor by way of conceding the situation while arguing before this Court in S.B. Cr. Misc. Petition No.1056/89 (supra); "The learned Public Prosecutor also concedes to the situation that the Court had no jurisdiction to direct the production of the documents from the case diary prior to the stage that a final report or a charge-sheet has been submitted in the Court. Case diary can only be used for limited purpose and not for finding out the documents which may or may not make out a case against a party. Case diary can only be used for limited purpose and not for finding out the documents which may or may not make out a case against a party. It is conceded that it is not within the domain of the court." Taking the aid of the aforesaid situation, Shri Rathore urged that it is thus clear that the learned Special Judge in utter disregard to the observations made by this court, quoted above, while disposing of earlier petition (supra), proceeded against the directions, and in this view of the matter, he grossly erred in taking cognizance under Section 190(1)(b), Criminal Procedure Code particularly when there was no police report under Section 173(2), Criminal Procedure Code before him. Shri Rathore also urged that the Special Judge could have taken the congnizance under the Act only when the complaint is presented before him as has been held by the Patna High Court in Lakhan Prasad v. States, 1980 Cr. LJ 537, where in it has been observed that the Court cannot take cognizance of offence under the Act unless there is complaint under Section 11 of the Act. Shri Rathore further argued that even due to insufficiency of the evidence, if a final report has been submitted by the Police or by the investigating agency, in that situation also, the Court could not have taken cognizance under Section 3/7 of the Act. He cited another decision in Satya Narain v. State of Bihar, AIR 1980 SC 506 , according to which, section 11 of the Essential Commodities Act precludes a Court from taking congnizance of the offence punishable under the Act except upon a report in writing of the facts constituting such offence. Taking the note of the aforesaid decision, the Court cannot take congnizance of the offence under the Act unless there is a report under Section 173(2), Criminal Procedure Code together with the documents and statements of witnesses presented before it and that police report shall be a report under Section 11 of the Act. 12. Having considered the aforesaid contentions I avert to the facts and circumstances of the present case and the controversy raised by the parties. 12. Having considered the aforesaid contentions I avert to the facts and circumstances of the present case and the controversy raised by the parties. In the instant case, report under Section 173(2), Criminal Procedure Code was submitted before the Judicial Magistrate No.3, Jaipur City who, as stated earlier, has taken cognizance of the offence under Sections 304, 286, 120-B, Indian Penal Code read with R.51 of the Gas Cylinder Rules, 1981 and Section 9B and 9C of the Indian Explosives Act, and at the time when the Special Judge passed the impugned order, the case before the judicial Magistrate was pending and the provision contained in Section 11 of the Act was not complied with, the Special Judge had no jurisdiction to take cognizance, because, before taking such cognizance, the following requirements are necessarily to be satisfied, as has been laid down by this Court in Mahesh Chandra v. State of Rajasthan, 1981 Cr. L.R. (Rajasthan) 580, while following the decision of the Apex Court in Saran and another v. State of Uttar Pradesh, AIR 1961 SC 928 : (a) the report should be in writing; (b) the public servant should be satisfied that a contravention of law has taken place; (c) it should contain a statement of facts constituting the offence. In this view of the matter, the report should be in writing and regarding the contents of the report and this requirement is to ensure that there shall be a record that the public servant is satisfied that contravention of the provisions of Act is sufficiently designated in the report. Thus, these requirements, referred to above, clinch the issue that the report must be in writing and regarding the contents of the report and that apart, the satisfaction of the public servant is essential and if that satisfaction, itself, is absent then the court is precluded to substitute its own satisfaction for that of the public servant, and as rightly held in Lakhan Prasad Gupta v. State of Bihar (1980 Cr.L.J.537) (supra), the Court can only examine what is filed before it and if the report by public servant indicates that the public servant is satisfied that any offence has been made out then it cannot invoke the provisions of 5.190(1) (a) and (b) as it is restricted by the provisions of Section II of the Act. The Madhya Pradesh High Court in Tarachand and Another v. State of Madhya Pradesh, 1988(3) Crimes 470, observed that a plain perusal of the provision contained in Section 11 of the Act would reveal that written report of the facts constituting the offence is a precondition for cognizance being taken. 13. In the case at hand, after careful perusal of the record, I find that there was no report before the Special Judge but, even after that, he observed that the offence punishable under Section 3/7 of the Act is made out against the petitioners. And, obviously, the Special Judge has wrongly treated a report presented before him under Section 169, Criminal Procedure Code as a police report, whereas it has been defined in Section 2(r), Criminal Procedure Code according to which, "police report" means a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173. 14. If the police officer proceeds to investigate into the offence it is obligatory upon him to submit a report under Section 173(2), Criminal Procedure Code as held in Satya Narain v. State of Bihar (supra), and such a report for the purposes of Section 190(1) (b) and if the Court takes cognizance of an offence under the Act upon such a police report, section 11 would be complied with in its entirety. But, as rightly contended/ wrangled by the learned counsel for the petitioners, no such police report as is required under Section 173(2), Criminal Procedure Code for the provision contained in 5:11 of the Act being complied with, has so far been produced before the Special Judge and in the absence of it, the Special Judge had no jurisdiction to take cognizance under the impugned order. Moreover, there was no satisfaction of the police officer that a contravention of the Act has taken place in the report submitted by him before the Judicial Magistrate under Cr. case No.826/89 rather the police officer in his application dated 7.11.89 (which is placed on the file at p.61 of B Part of Cr.case No.1 /90 of Special Judge (EC Act), Court, Jaipur) stated that against the petitioners and other co-accused, a challan for the offences under Sections 304/286/120-B, Indian Panel Code, and Rule 51 of the Gas Cylinder Rules, 1981 read with Sections 9B and 9C of the Indian Explosive Act has been presented in the Court of Judi. Magistrate No.3, Jaipur City, Jaipur which bears Cr. case No.826/89 and in that matter, the criminal proceedings according to law are pending and no prima facie offence has been found to have been made against the accused for the offence punishable under the E.C.Act. Viewed in the context, the Special Judge could only examine what has been filed before him and since the Public Servant indicated that he has satisfied that no offence has been made out then since he had no material on which he could take cognizance of the offence, and could not have taken cognizance under Section 190(1)(a) and (b), Criminal Procedure Code for the offence punishable under the Act as section 11 of the Act has not been complied with in its entirety, and the proceedings deserves to be set aside. 15. The Court has also occasioned to hold in Ramchandra v. State, 1988(2) RLR 943 , that the cooking gas stored in a gas cylinder is compressed one and not liquefied petroleum gas and as such, was not either petroleum or petro product thereby not punishable under Section 3 read with Section 7 of the Essential Commodities Act. On this view of the matter, since the Judicial Magistrate No.3, Jaipur City, Jaipur has taken cognizance of offence under Gas Cylinder Rule 1981 and Indian Explosives Act, the Special Judge had no jurisdiction to take cognizance for the alleged offence. But, even after that, the Special Judge came to the conclusion that case for the offence punishable under Section 3/7 of the Act is made out against the petitioners. 16. Therefore, having benefited by the enlightments derived from the decisions, cited above, and the reasons referred to above which have weighed with me in coming to the conclusion arrived at above, I find that the Special Judge has eschewed the relevant considerations and failed in utter disregard to the directions issued by this court in earlier petition and also failed to apply his mind in a judicious manner. That apart, from the impugned order it is also not clear, whether the petitioners were partners of the Firm at the time of incident or not, and whether they were directly or indirectly in charge of the Firm or were responsible to the Firm in question. That apart, from the impugned order it is also not clear, whether the petitioners were partners of the Firm at the time of incident or not, and whether they were directly or indirectly in charge of the Firm or were responsible to the Firm in question. All these things are not conspicuous in the order, resulting in failure and miscarriage of justice to the petitioners as they were neither the partners of the Firm nor were in-charge thereof, nor had they concern with the Firm at the time of the incident. That being so, the impugned order is perverse and deserve to be set aside. 17. In the result, these two petitions are allowed; the impugned order of the Special Judge (EC Act), Jaipur dated 15.1.1990 is quashed and set aside and the criminal proceedings initiated by virtue of the impugned order before the Special Judge under case No.1/90 in F.I.R. No.69/1989 P.S. Malviya Nagar (Jaipur) against the petitioners for the offence punishable under Section 3/7 of the Essential Commodities Act, are quashed and the Special Judge is directed not to proceed further, as no case is made out against the petitioners.Petition allowed. *******