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1996 DIGILAW 380 (PAT)

Kailash Chand Suresh Kumar v. State Of Bihar

1996-06-18

GURUSHARAN SHARMA

body1996
Judgment Gurusharan Sharma, J. 1. The petitioners have filed this application under Section 482 of the Criminal Procedure Code for quashing the entire criminal proceedings instituted under Section 48 of the Bihar Agricultural Produce Market Act, 1960 (hereinafter referred to as the Act) including the order dated 4-12-1995 passed by Sri Noman Ali, Judicial Magistrate, First Class, Dhanbad, in C. C. Case No. 37 of 1993 rejecting their petition for discharge. 2. On 31-7-1993, the Secretary, Agricultural Produce Market Committee, Damkara-Barwa, district Dhanbad, opposite party No. 2 filed a complaint petition (Annexure 1) under Section 48 of the Act in the court of the Chief Judicial Magistrate, Dhanbad, against the petitioners for the alleged offences under Sections 15, 27 and 27-A(2) of the Act and Rules 82 and 98 of the Bihar Agricultural Produce Market Rules, 1975 (hereinafter referred to as the Rules). 3. On the same day, i. e. on 31-7-1993, the Chief Judicial Magistrate took cognizances of the offence under the aforesaid provisions of the Act and transferred the case to anoiher court for trail and disposal. After receiving summons, the petitioner No. 2, partner of the firm, M/s. Kailash Chand Suresh Kumar, appeared before the trial court and was granted bail on 23-2-1994. 4. The trial proceeded and on 14-7-1994, on behalf of the complainant, PW 1 was examined, cross-examined and discharged. On the same day, on behalf of the accused, a petition was filed to drop the proceeding and discharge them. A rejoinder thereto was filed on behalf of the complainant on 3-10-1994. On 24-7-1995 which was the date fixed for hearing on the said petition dated 14-7-1994, the complainant examined PW 2. The accused persons declined to cross-examine PW 2 and insisted for hearing on their petition for discharge which was fixed for the said date. On 5-8-1995, additional grounds for discharge was filed on behalf of the accused persons and rejoinder thereto on behalf of the complainant was filed on 29-8-1995. However, by the impugned order dated 4-12-1995, the learned Judicial Magistrate rejected the aforesaid petition for dropping the proceeding and discharge. The entire order sheet of the proceeding from 31-7-1993 to 4-12-1995 has been annexed as Annexure 2. 5. The petitioner firm is a trader within the meaning of Section 2(w) of the Act and prossessed trade licence as required under Rule 98 of the Rules being licence No. 1035 of 1976-77. The entire order sheet of the proceeding from 31-7-1993 to 4-12-1995 has been annexed as Annexure 2. 5. The petitioner firm is a trader within the meaning of Section 2(w) of the Act and prossessed trade licence as required under Rule 98 of the Rules being licence No. 1035 of 1976-77. The said licence was not renewed on or before 31st March, 1992 and expired and, thereafter, from 1-4-1992 onwards, the traders carried on and continued their business without any any licence. The trader also failed to submit any return of purchase and sale. In form A as required under Section 27-A of the Act and did not pay market fee under Section 27 of the Act, though the sale or notified agricultural produce continued within the market area. Further, inspite of the notifications dated 1-2^-1989 and 5-M990, the trader did not shift the place of business from Karkend Bazar within Putki police station to the Principal Market Yard at Damkara-Barwa. 6. According to the complainant, the trader violated the provisions of Sections 15, 27 and 27-A (2) of the Act and Rules 82 and 98 of the Rules and as such after obtaining necessary sanction as required under Section 49 (2) of fhe Act read with Rule 132 of the Rules, the Secretary of the Market committe filed the aforesaid complaint petition against the said firm through it partner. 7. Mr. Radhey Shyam, counsel for the petitioners, submitted that the Market Committee under the Act is a body corporate having perpetual succession which may sue or be sued in its corporate name and the power to launch a prosecution vests in rhe Market Committee. The Act provides for delegation of different functions to various officers including the Secretary of the Market Committee appointed by the State Government on the Board. The Secretary may exercise such powers and perform such duties as are conferred or imposed on him by the Market Committee. It is true that the Secretary has been conferred the duty to prefer complaint in respect of prosecution to be launched on behalf of the Market Committee, but unless there is a resolution of the Market Committee for filing such complaint, the Secretary or his own has no power to file a complaint petition. It is true that the Secretary has been conferred the duty to prefer complaint in respect of prosecution to be launched on behalf of the Market Committee, but unless there is a resolution of the Market Committee for filing such complaint, the Secretary or his own has no power to file a complaint petition. In the present case, there being no resolution on the Market Committee to launch prosecution against the petitioners, the entire criminal proceeding including the impugned order dated 4-12-1995 passed by the trial court refusing to drop the proceeding and discharge the petitioners, are illegal and fit to be quashed. 8. Learned counsel placed reliance on a decision of the Apex Court in Secretary, Agricultural Produce Marketing Committee of District V/s. Vardaraya Shenoy and another, 1995 (3) SCC 276 wherein it was held that the Secretary or the Agricultural Produce Marketing Committee was not competent to file a complaint or launch prosecution on his own without a resolution or authorisation of the Marketing Committee concerned. 9. Mr. V. P. Singh, counsel for the opposite party No. 2, submitted that necessary sanction, as required under Section 49(2) of the Act for taking cognizance of the offence relating to contravention of the provisions of the Act/Rules by a Court, was duly granted by the Assistant Director, one of the authorities prescribed under Rule 132 of the Rules on 4-3-1993 and only thereafter on 31-7-1993, a complaint petition was filed by the Secretary of the Market Committee, who was empowered to file it under Rule 66 (xiv) of the Rules. It was further submitted that the Act, Rules or Bye-laws no where provided the necessity of a previous resolution of the Market Committee to prosecute the offenders for violation of the provisions of the Act/Rules. 10. Mr. Singh is this regard placed reliance upon an unreported decision or this Court in Mjs. Kishunpuri Galla Bhandar and others V/s. The State of Bihar and others, CWJC No. 677 of 1994 (R) disposed of on 9-1-1995, wherein it was held that the substantive provision was Section 49 and the Rule only gives the name of the authorities empowered to sanction prosecution. The words "any alleged contravention" appears to have been accidentally omitted while providing the name of the authorities empowerd to sanction prosecution under Rule 132. The words "any alleged contravention" appears to have been accidentally omitted while providing the name of the authorities empowerd to sanction prosecution under Rule 132. The uforesaid words have to be be read in the said Rule which have been left out accidently and that the sanction granted by the authority prescribed under Rule 132 of the Rules was valid and, accordingly, refused to quash the order taking cognizance. 11. Section 18 of the Act prescribes powers and duties of the Market Committee. The relevant provisions thereof are quoted belowed : "18. Powers and duties of the Market Committee (1) ** ** ** (2) Without prejudice to the generality of the foregoing provision, a Market Committee may (ii) ** ** ** (iii) ** ** ** (iv) ** ** ** (v) to control and regulate the admission of persons and vehicular traffic to the Principal Market Yard or sub-market Yard to determine the onditions for the use of market and check and prosecute persons trading without a valid licence in the market area ; (vi) to bring, prosecute or defend, or aid in bringing, prosecuting or defending any suit, action, proceeding, application or arbitration in regard to any matter on behalf of the Committee or otherwise when directed by the Board........" 12. Under Section 21 of the Act, the Secretary of the Market Committee, who has either been appointed by the State Government or the Marketing Board and is the Chief Executive Officer, is to exercise such powers and perform such powers and perform such duties as are conferred or imposed on him by or under the Act or by the Market Committee or the Rules or Bye-laws. 13. Rule 66 of the Rules deals with the powers and functions of the Secretary of the Market Committee and clauses (i) and (xiv) thereof provide: "(i) The Secretary shall be the Chief Executive Officer of the Market Committee and shall carry into effect the resolution of the Market Committee. (xiv) He shall prefer complaints in respect of the prosecutions to be launched on behalf of the Market Committee and conduct proceedings, civil or criminal, in all Courts and Tribunal or any Authority, on behalf of the Market Committee." 14. (xiv) He shall prefer complaints in respect of the prosecutions to be launched on behalf of the Market Committee and conduct proceedings, civil or criminal, in all Courts and Tribunal or any Authority, on behalf of the Market Committee." 14. The Act was promulgated with a view to provide for better regulation of marketting of agricultural produce and the establishment and administration of Markets for agricultural produce and matters connected therewith in the State of Bihar. The Act provides for the con- stution of Market Committee, which are empowered to regulate to market of the Notified Agricultural Committee in the notified market areas. In case of violation of the provisions of the Act and/or the Rules framed thereunder, penal action and punishment have been provided under the Act. 15. A conjoint reading of the aforesaid provisions of the Act and the Rules framed thereunder goes to show that the Secretary of the Market Committee is a Government servant and functions as the Chief Executive Officer of the Committee generally to carry out the resolutions and directions of the Committee from time to time and his powers, functions and duties have been specified under the Act and the Rules. 16. Rule 66 (iv) (supra) requires the Secretary to prefer complaints in respect of the prosecutions to be launched on behalf the Market Committee and conduct proceedings, civil or criminal, on behalf of the Committee. Under Section 8 (supra) the power to prosecute persons trading without a valid licence in the market area and to bring, prosecute or defend or aid in bringing, prosecuting or defending any proceedings, vests and rests with the Market Committee itself. Therefore, it is only after a decision is taken by the Market Committee to prosecute an offender under the Act, the Secretary is to institute the complaint on its behalf and conduct the proceedings. Thus, without a resolution of the Committee, the Secretary by himself eannot file any complaint against any person, subject to the provisions of the Act, for violating the provisons of the Act, Rules or the Bye-laws. 17. From an analyasis of the provisions of the Act and the Rules. It is clear that whereas the power to launch the prosecution vests with the Market Committee, the functions in respect thereof are required to be carried out by the Secretary on behalf of the Committee. 17. From an analyasis of the provisions of the Act and the Rules. It is clear that whereas the power to launch the prosecution vests with the Market Committee, the functions in respect thereof are required to be carried out by the Secretary on behalf of the Committee. In the circumstances, I am of the opinion that it is for the Market Committee to decide whether or not prosecution is required to be launched x gainst an alleged violator and it is only after such a decision is taken that the Secretary of the Market Committee can file the complaint and conduct the proceedings against the offenders for and on behalf of the Market Committee in the appropriate forum. In the absence of any resolution of the Market Committee, the Secretary does not have any power to independently prefer or file any complaint or launch a prosecution for the alleged violation of the, Act, Rules or the Bye-laws against the alleged violater. 18. In M/s. Baba Kishunpuri Galla Bhandar and others (supra), a limited question as to the validity of the sanction order for prosecution was considered and held to be valid and the question of the authority of the Secretary of the Market Committe to file a complaint petitioa of his own without any resolution of the Committee in this regard, was neither raised nor considered and, therefore, the said decision is not applicable in the facts and circumstances of this case. On the other hand, in my opinion, the ratio of the decision of the Apex Court in Secretary Agricultural Product Marketing Committee D. K. District is applicable in the present case, where in it has been observed that the powers of the Committee and the functions of the Secretary in the matter of prosecuting the offenders are independant and cannot be confused nor a distinction between the powers of the Committee and the functions and duties of the Secretary be overlooked. There appears to be sound logic in not vesting the power in the Secretary to launch prosecution against the alleged offenders and to vest that pawer in the Market Committee itself. There appears to be sound logic in not vesting the power in the Secretary to launch prosecution against the alleged offenders and to vest that pawer in the Market Committee itself. Since the Marketing Committee consists largely on the elected representatives, elected in the manner provided under the Act, there is collective responsibility of the Market Committee to the functionaries of the Marketing Committee and, therefore, any prosecution which is required to be launched would need to be scrutinised and considered by the Market Committee itself because the launching of prosecution exposes the violater not only to face a trial, but on conviction may be also subjected to penal consequences. The framers of the Act, therefore, specifically left the powers to authorise the prosecution in the Marketing Committee while providing for delegation of the function to prosecution on behalf of the Marketing Committee, to the Secretary of the Committee. 19. I, therefore, quash the entire criminal proceedings including the order dated 4-12-1995 passed by the trial court refusing to discharge the petitioners. The petitioners, accordingly, stand discharged in connection with C. O. Case No. 37 of 1993 peding in the court of Mr. Noman Ali, Judicial Magistrate, 1st class, Dhanbad. However, it is made clear that I have not applied my mind to the merits of the case and, it is open for the Market Committee, if so advised, to take appropriate action in accordance with law against the petitioners for the alleged offences which will be dealt with and decided by the authority concerned on its own merit, without being prejudied by this order. 20. In the result, this application is allowed.