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Allahabad High Court · body

2007 DIGILAW 1945 (ALL)

KRISHNA KUMAR v. STATE O

2007-07-20

SAROJ BALA

body2007
SAROJ BALA, J. By virtue of this application under section 482 Cr. P. C. applicants have prayed for quashing the proceedings of criminal case No. 5 of 1987 (crime case No. 78 of 1986) State v. Krishna Kumar and others under section 3/7 of Essential Commodities Act, P. S. , Konch pending before the Court of Special Judge (E. C. Act) Orai, District Jalaun. 2. The facts giving rise to this application briefly stated are these: 3. The accused-applicant No. 1 was a fair price shop dealer. On 7. 3. 1986 at about 11 A. M. three persons were captured taking away two gunny bags of sugar. It was alleged that the applicant No. 1 had sold the sugar allotted for distribution from fair price shop to the applicants No. 2 and 3 contravened the provisions of section 3-B of Sugar Control Order, 1960. After investigation final report was submitted before the District Magistrate. The District Magistrate Jalaun passed an order on 23. 9. 1986 in exercise of powers under section 11 of the Essential Commodities Act (hereinafter referred to as the Act) authorising the S. H. O. Kaunch to submit final report in the Court. The Special judge (E. C. Act) after perusal of case diary took cognizance for an offence under section 3/7 of the Act against the accused-applicants. 4. Heard Shri D. P. Singh, learned Counsel for the applicants, learned A. G. A. and have perused the record. 5. The learned Counsel for the applicants placing reliance on the decision in the cases of Harish Chandra v. State of U. P. (1978 (15) ACC 374) and Hari Ram v. State of U. P. (1981 (18) ACC 345), argued that section 11 of the Act as applicable in Uttar Pradesh on the date of occurrence provided that no Court shall take cognizance of any offence except on a report in writing of the facts constituting such offence, made by the order or under authority from the District Magistrate or such other officer as may be empowered by the State Government by general or special order in this behalf. 6. The case crime No. 78 of 1986 under section 3/7 of the Act was registered on 7. 3. 1986. After investigation final report was submitted before the District Magistrate, Jalaun on 23. 9. 1986. 6. The case crime No. 78 of 1986 under section 3/7 of the Act was registered on 7. 3. 1986. After investigation final report was submitted before the District Magistrate, Jalaun on 23. 9. 1986. The District Magistrate in exercise of powers under section 11 of the Act as amended by U. P. Act 9 of 1974 authorised S. H. O. Konch to submit final report in the Court. The Special Judge (B. C. Act) disagreeing with the final report summoned the "applicants for the offence under section 3/7 of the Act. 7. Section 11 of the Act 1955 provides as under: " 11. Cognizance of offences-No Court shall take cognizance of any offence punishable under this Act. except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in section 21 of the Indian Penal Code (45 of 1860) (or any person aggrieved or any recognized consumer association whether such person is a member of that association or not.) Explanation-For the purposes of this section and section 12-A A, "recognized consumer association" means a voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force. 8. By State of Uttar Pradesh Amendment (U. P. Act 9 of 1974) the words by a person who is public servant as defined in section 21 of the Indian Penal Code have been substituted with words by order of, or under the authority from the District Magistrate or such other officer as may be empowered by the State Government by general or special order in this behalf. The Court has no jurisdiction to take cognizance of any offence under the Act except on a written report made by order of or under authority from the District Magistrate. Section 11 of the Act as amended in Uttar Pradesh requires specific order of the District Magistrate or other empowered officer for institution of prosecution. In the instant case District Magistrate had authorised the S. H. O. Konch to submit final report and not a report constituting any offence under the Act. 9. The Essential Commodities Act is a special enactment and compliance of the provisions of section 11 has to be strictly observed. In the instant case District Magistrate had authorised the S. H. O. Konch to submit final report and not a report constituting any offence under the Act. 9. The Essential Commodities Act is a special enactment and compliance of the provisions of section 11 has to be strictly observed. The First Information Report or charge-sheet are not report within the meaning of section 11 of the Act as amended by State of Uttar Pradesh. Section 11 of-the Act contemplates report by District Magistrate or an officer empowered by him. 10. In the case of State of Haryana v. Bhajan Lal (1991 (28) ACC 111 (SC) = 1992 (1) Supp. SCC 335), the Apex Court has laid down the guidelines, wherein power under section 482 of the Code of Criminal Procedure can be exercised as under : " (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156 (1) of the Code except under an order of a Magistrate within the purview of section 155 (2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155 (2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and or/where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. " 11. The case in hand comes under the category (6) of the cases enumerated by the Apex Court. The cognizance of offences under the Act is to be taken in the manner laid down under section 11 of the Act as amended by U. P. Act 9 of 1974. There is a specific provision under the Essential Commodities Act for taking cognizance of offence under the Act, the provisions of Code of Criminal Procedure cannot be resorted to. In view of these facts the impugned order of taking cognizance is illegal and without jurisdiction. A propose to what has been discussed above the application is allowed. The proceedings of Criminal Case No. 5 of 1987 State v. Krishna Kumar and others under section 3/7 of the Act, P. S. Konch pending before the Court of Special Judge (E. C) Act Jalaun are quashed. .