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2001 DIGILAW 1042 (PAT)

Sadanand Bhagat @ Sada Nand v. State Of Bihar

2001-11-20

SHIVA KIRTI SINGH

body2001
Judgment 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. Kotwali (Kasim Bazar) PS Case No. 373/93 was instituted Officer In-charge of the said police station giving rise to GR Case No. 1367/93. The substance pf the allegations was that in the premises of Agricultural Produce Market Committee at Safiabad, the gatekeeper and other employees of the Market Committee were indulging in various illegal acts such as issuance of fake receipts so as to cheat the Market Committee of its lawful revenue. The illegally collected market fee used to be distributed between concerned employees. After investigation; charge sheet was submitted against 13 accusedpersons including the petitioner who claims in this petition that at, the relevant, time he was functioning as the correspondence clerk at Agricultural Produce Market Committee, Safiabad and was deputed as gate-keeper. The learned Chief Judicial Magistrate by order dated 29.11.1995 took cognizance, of the offences under Secs. 420, 406, 409, 467 and 468/34 of the IPC and summoned the accused to, face trial. 3. The petitioner filed an application before the Judicial Magistrate for discharge on the ground that provisions of IPC cannot be applied in this Case in the light of Sec. 48 of the Bihar Agricultural Produce Markets Act (hereinafter referred to as the Act). The petitioners contention was that Section 48 of the Act provides penalty for a maximum term of one year and with a fine upto Rupees one thousand or both for contravention of any provision of the Act or any rule or by laws or order issued there under and hence, such special provision under the Act must by implication prohibit application of any offence under the Indian Penal Code. Reliance was also placed upon - Sec. 49 of the Act which prescribes that no court inferior to a Magfstrate of the second class shall take cognizance or try any offence under the Act or under the Rules or bylaws made there under and no cognizance shall be take of such offence except with the previous sanction of prescribed authority, which as per rules under the Act is the Market Committee or Assistant Director or Director or any officer authorised by him. 4. 4. The learned Magistrate by order dated 23.6.199 rejected the prayer for discharge and held that the offence alleged against the accused persons including the petitioner are not offences covered under the provisions of the fact and there was no legal impediment in framing charge for the offences defined under the Indian Penal Code. Against the said order contained in Annexure 2 the petitioner preferred a criminal revision before the Sessions Judge, Munger, which was rejected by a reasoned order dated 9.5.2000. Learned Sessions Judge rejected the petitioners contention that for fraud, cheating and misappropriation etc. no trial could be held under the provisions of the IPC because of special provision by way of Sec. 48 of the Act arid because of requirement of sanction under Sec. 49 of the Act. 5. The same contention has been advanced before this Court through a petition under Sec. 482 of the Code of Criminal Procedure and by changing the Prayer to one for quashing of entire criminal proceeding with regard to the petitioner. 6. This Court has no hesitation in holding that interest of justice which is sine qua non for exercise of power under Sec. 482 of Cr. P.C. does not require interference with the criminal proceeding against the petitioner. The present petition although labelled under Sec. 482, Cr. P.C. amounts to an attempt for second revision against the order of the Magistrate dated 23.6.1999 which is not permitted by the Code of Criminal Procedure. 7. So far as merits of the petitioners contention is concerned, it may be mentioned that learned counsel for the petitioner has placed strong reliance upon a judgment of this Court in the case of Yamuna Sah V/s. The State of Bihar in support of his contentions which have already been noticed above. The Judgment in the case of Yamuna Sah (supra) related to a prosecution instituted under Sec. 7 of the Prevention of Food Adulteration Act and Sec. 420 of the Indian Penal Code. The parties advanced arguments on the footing that the proceeding was mainly under Sec. 7 of the Adulteration Act. The Judgment in the case of Yamuna Sah (supra) related to a prosecution instituted under Sec. 7 of the Prevention of Food Adulteration Act and Sec. 420 of the Indian Penal Code. The parties advanced arguments on the footing that the proceeding was mainly under Sec. 7 of the Adulteration Act. In that judgment it was presumed and accepted without discussion that Sec. 420 of the Indian Penal Code had no independent application or was not material and the prosecution was quashed because no written consent of the prescribed authority in terms of the Adulteration Act had been obtained for initiation of the prosecution nor the samples had been sent to Public Analyst as per procedure prescribed by the Adulteration Act. The said judgment has laid down that where complaint suffers from fundamental legal defects such as want of mandatory sanction for prosecution, or absence of complaint by legally competent authority, the High Court may quash the proceeding in exercise of its inherent jurisdiction. 8. In the present case there is no quarrel with the aforesaid proposition but the judgment in the case of Yamuna Sah (supra) cannot be accepted as an authority for the proposition advanced by learned counsel for the petitioner in the present case. In this case, there is no allegation that any offence has been committed which may be punishable under Sec. 48 of the Act and which may require previous sanction of the prescribed authority under Sec. 49 of the Act. In such circumstances, there is no violation of any law or of legal principle in prosecution of the petitioner for offences under the Indian Penal Code. In fact, the very foundation of submissions advanced on behalf of the petitioner is misconceived because Sec. 48 of the Act merely provides for penalty for contravention of provisions of the Act or any rule or by-laws or orders issued there under and does not define any specific offence which may in substance substitute the general offences of forgery, cheating criminal misappropriation etc. In such circumstances, the general principle that special provisions shall replace the general provisions cannot have any play. The theory of replacement can be considered only where the special provisions substantially relate to the same matter as covered by general law, and not otherwise. This point can be well appreciated on the basis of a simple illustration. In such circumstances, the general principle that special provisions shall replace the general provisions cannot have any play. The theory of replacement can be considered only where the special provisions substantially relate to the same matter as covered by general law, and not otherwise. This point can be well appreciated on the basis of a simple illustration. Suppose the Market Committee issues an order that its employees should maintain peace and should not violate any law in the premises of the Market Committee. This general order may stand violated on account of an employee indulging in verbal abuse or simple assault or on account of his committing a serious offence like murder attracting the provisions of the Indian Penal Code. If the argument advanced on behalf of the petitioner is accepted then on account of violations of general order of the Market Committee the prosecution must be confined to one under Sec. 48 of the Act and that also only after necessary sanction under Sec. 49 of the Act and no prosecution of any employee of the Market Committee will be permissible under the Indian Penal Code even if the factum of murder be admitted. Such proposition does not have sanction of any legal principle and is clearly unacceptable. 9. For all the aforesaid reasons, this Court agrees with the reasonings given by the learned Magistrate as well as the Sessions Court and finds no merit in this application which is accordingly dismissed.