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2004 DIGILAW 932 (PAT)

Dilip Kumar v. State Of Bihar

2004-09-10

RADHA MOHAN PRASAD

body2004
Judgment 1. In this miscellaneous application, prayer is to quash the entire proceeding under Section 7 of the Essential Commodities Act, (hereinafter referred to as the Act) arising out of Sherghati Police Station Case No. 150 of 1994, pending in the Court of the Special Judge, E,C. Act, Gaya. 2. The prosecution story as alleged in the FIR, inter alia, is that the sub-divisional officer, Sherghati ordered one Rajendra Prasad Agrawal, Proprietor, Hariyali Seva Kendra, a retail dealer in fertilizer to sell 240 bags of Urea available in stock in his presence at fixed price amongst the farmers, but the dealer sold the same in the absence of the Sub-divisional Officer at higher price. 3. After investigation police submitted charge-sheet against said Rajendra Prasad Agrawal, father of the petitioner, for the offence under Section 7 of the Act and thereafter cognizance has been taken against the father of the petitioner. The petitioner was not made an accused in the FIR, case diary or the charge-sheet. Accordingly, no cognizance was taken against the petitioner. 4. The said Rajendra Prasad Agrawal on 2.8.1996 filed a petition for his discharge from the case and another petition was filed on 6.8.1996 by the Special P.P. under Section 319, Cr PC for summoning M/s. Hariyali Seva Kendra and the present petitioner for facing trial, upon which the impugned order has been passed rejecting the petition of accused Rajendra Prasad Agrawal and, further, making M/s. Hariyali Seva Kendra and the present petitioner also accused in the case for facing trial and issuing summons to them fixing 6.9.1996 for their appearance. 5. Learned counsel for the petitioner contended that there was no direction given by the S.D.O. as alleged in relation to sale of the fertilizer in his presence. He contended that their can neither be any such direction given and even for violation of such direction, the petitioner cannot be prosecuted under Section 7 of the Act, as the S.D.O. is not the licensing authority much less the licence granted to Hariyali Seva Kendra was issued by the District Agriculture Officer. 6. I fail to appreciate the said submission of the learned counsel for the petitioner. The FIR was lodged by the Agriculture Officer and not by the Sub- divisional Officer. 6. I fail to appreciate the said submission of the learned counsel for the petitioner. The FIR was lodged by the Agriculture Officer and not by the Sub- divisional Officer. Be that as it may, from the impugned order, I find that the learned Special Judge has considered the entire matter on the prayer made on behalf of accused Rejendra Prasad Agrawal for his discharge from the case in which no infirmity has been pointed out and the learned Special Judge while rejecting the prayer for discharge has dealt with the power of search and seizure by the informant and has held that the informant was authorised to make search and seizure under clause 27 of the Fertilizer (Control) Order, 1985, vide Notification No. 5-F-33-85/5513, dated 16.4.1986, and, thus , has found that the prosecution of the accused is not bad in law. The Special Judge has also considered the case diary for finding out that said Rajendra Prasad Agrawal had sold 240 bags of urea fertilizer overnight in blackmarket in the high price in violation of the direction of the S.D.O., Sherghati, in which no infirmity has been pointed out by the learned counsel for the petitioner. Thus, this Court finds no infirmity in the order in so far as the prayer for discharge made on behalf of the accused Rajendra Prasad Agrawal has been rejected is concerned. 7. Learned counsel for the petitioner further contended that in any view of the matter, the impugned order in so far as it related to the present petitioner is concerned is bad in law and without jurisdiction. According to the learned counsel, this was not the stage for exercise of the power under Section 319, Cr PC, which empowers to proceed against other persons appearing to be guilty of offence in course of any inquiry into, or trial of, an offence. Learned counsel contended that the word "inquiry" is defined under Section 2(g) of the Code of Criminal Procedure and it means every inquiry, other than a trial, conducted under this Code, by a Magistrate or Court. It is not a case where in course of any inquiry or trial the Magistrate or Court has exercised the power. The Special Judge has invoked the power under Section 319, Cr PC neither at the stage of inquiry or trial. It is not a case where in course of any inquiry or trial the Magistrate or Court has exercised the power. The Special Judge has invoked the power under Section 319, Cr PC neither at the stage of inquiry or trial. As such, according to him, the order dated 17.8.1996 making the petitioner also an accused in the case for facing trial and issuing summons in that regard by the learned Special Judge is bad in law. 8. I am unable to accept the said submission of the learned counsel for the petitioner. It is true that Section 319 provides that where, in course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. But the Full Bench of this Court in the case of Sk. Latfur Rahman V/s. State, reported in 1985 PLJR 640 , on detailed consideration of other provisions came to the conclusion that the Court of Session, prior to the framing of the charge, can, without itself recording evidence, summon a person as an additional accused on the basis of documents in the final report of the investigating officer under Section 173 of the Code, independently of the provisions of Section 319 thereof and further that the substitution of Section 319 of the new Code, in place of Section 351 of the old one has not wrought any radical change in the law by making the former as the sole repository of such power. 9. One of the members of the Full Bench (Uday Singh, J.) held that it is not possible to hold that by enactment of Section 319 there was any intention to curtail the powers of the Court by unwritten law but firmly established by Judicial decisions the power to summon the additional accused if there were materials against him and thus agreed with Honble the Chief Justice that Section 319 of the Code of Criminal Procedure is not the sole repository of the power of a Court to summon additional accused not sent up by the police. 10. 10. The Full Bench on following from the long line of precedent beginning with Raghubans Dubeys case held that a Magistrate trying a warrant case as also a Court of Session having once validly taken cognizance of the offence on the basis of the police report (when considering material before it for framing a charge) is not only entitled but, indeed, duty bound to summon a person as an accused to stand trial before it if it is fully satisfied of the existence of a prima facie case against an additional accused who may not have been sent-up as such. The Full Bench has also taken note of the language of the Final Court that the summoning of the additional accused is part and parcel of the proceeding initiated by the taking of the cognizance of an offence. 11. In the present case, the learned Special Judge on consideration of paragraph 58 of the case diary and the copy of the licence, which shows that the present petitioner is the proprietor of M/s. Hariyali Sewa Kendra and is the licensee of fertilizer, found it necessary that he and his firm should also be made accused for facing trial in the case, and, accordingly, made both of them as accused in the case and issued summons to them for appearance on 6.9.1996. In view of the law settled in the case of Raghubans Dubey V/s. State of Bihar, reported in AIR 1967 SC 1167 , this Court finds that the Special Judge has rightly discharged his duty in summoning of the petitioner, in the facts and circumstances of the present case and there is no infirmity in the impugned order warranting interference. The miscellaneous application is, thus, rejected.