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2001 DIGILAW 43 (PAT)

Praduman Gupta v. State Of Bihar

2001-01-16

S.K.CHATTOPADHYAYA

body2001
Judgment 1. Heard learned counsel for the petitioner and the State. 2. An interesting question is involved in this case as to whether the Special Judge under the Essential Commodities Act (hereinafter referred to as the Act] can differ with the police report and take cognizance of the offence under Section 11 of the Act. 3. Uncontrovertedly Pipra P.S. Case no. 138 of 1999 dated 22.12.1999 has given rise to the Special Case No. 8 of 1999. This case was registered for an offence under Section 7 of the Act. The investigating officer after thorough enquiry submitted final form as mistake of facts. Disagreeing with the report the Special Judge, by order dated 15.7.2000 took cognizance of the offence and issued summons. 4. Learned counsel for the petitioner submits that when the police after investigation has found that no case has been made out against the petitioner and submitted final form, the Special Judge was not competent to take cognizance differing with the police report as he could have done in ordinary criminal case as contemplated under Section 190(1) of the Code of Criminal Procedure, In support of his contention he has relied on the decision of the Division Bench of this Court in the case of Ratan Lal Sultania and ors. vs. State of Bihar, 1968 PLJR 36. 5. Learned counsel for the State, though admits that the said decision again has been relied in the case of Nathuni Yadav and ors. vs. State of Bihar; 1998 (3) BLJ 645 : 1998 (3) PLJR 507, but venture to submit that because the report of the police was before the Special Judge and the Special Judge was satisfied with the report that a case was made out, was entitled to differ with final conclusion of the police. 6. In my view, submission of the learned counsel for the State has no substance. In paragraphs 23 and 24 of the case of Ratanlal Sultania and ors. vs. State of Bihar (supra) the Division Bench has observed, inter alia, that Subdivisional Officer appears to have proceeded under Section 190(1) of the Code of Criminal Procedure which is not applicable to a prosecution under the Act, because it is governed by the special procedure provided in Section 11. In this context provision as laid down under Section 11 may be looked into. In this context provision as laid down under Section 11 may be looked into. This Section mandates that "no court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence.........." Thus, it is clear that the Special Judge under the Act can take cognizance only when the report shows that facts alleged constituted such offence and (sicnot?) otherwise. 7. In the instant case, allegation has been narrated by the police in his report but after investigation it concluded that no case is made out and thus submitted final form. The facts of the present case is practically similar to the facts of Criminal Revision No. 1136 of 1967 which was analogously decided by the Division Bench in the aforesaid decision. The =,ame view has been expressed in the case of Nathuni Yadav and ors. vs. State of Bihar (supra). Under these circumstances, in my view, by no stretch of imagination it can be said that the Special Judge acting under Essential Commodities Act can differ with the police report and take cognizance of the offence. 8. In the result, this application is allowed and the order taking cognizance dated 15.7.2000 as well as the entire proceeding against the petitioner in Special Case no. 8 of 1999 is hereby quashed.