Babu Lal and another vs State of U.P.

N. N. Sharma, J.

All these four cases are being disposed of by this common order as these arise out of the same facts.

It appears that the revisionists were sent up in cases Nos. 355 of 79 and 356 of 79 of Police Station Kotwali Fatehpur on 891979 to stand their trial under Sections 3/7 of tha Esssential Commodities Act (Act No. 10 of 1955) crime Nos. 4 and 5 of 78 Kotwali, Fatehpur. Cognizance of the offence was taken by the Chief Judicial Magistrate on 1221979; After adjournments dated 871980 and 1981980 revisionists were charged by learned magistrate on 2841980. Pending this case it transpired that requisite sanction for prosecution was wanting. Section 11 of the aforesaid Act relating to sanction is extracted below:

"11. 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)."

This section was amended by U. P. Act No. IX of 1974 by which the District Magistrate or any other officer empowered by the State Government was to accord requisite sanction without which cognizance of the offence was barred, The sanction had not been received despite D. O. No, 577 of 1980 sent by learned C. J. M. on 1991980 to S. P. Fatehpur. Revisionists prayed on 1981980 and 21101980 that they must be discharged for want of sanction. It was on 21101980 that the Chief Judicial Magistrate observed that the proceedings are nullity but could proceed on a receipt of sanction and fresh chargesheet dated 21101980 and so application of revisionists was rejected giving rise to these cases. I have heard learned counsel for parties and perused the record.

The contention of the learned counsel for the revisionists before me is that the aforesaid proceedings are liable to be quashed. This contention is upheld for following reasons. Magistrate takes cognizance of an offence on a Police report under Section 190B of the Code of Cr.P, C, Police report is submitted under Section 173 of the Cr. P. C. After the initiation of the proceeding no fresh police report is contemplated by law. It is not open to the Magistrate to proceed on a fresh additional police report submitted under Section 173 (8) of the Cr. P. C. for taking cognizance of an offence which had already been noticed judicially by the learned Magistrate concerned. It was observed in Jiwan Shanker Sharma v. State 1979 Alld.Crl. Cases 216:

"After investigation a charge sheet was submitted in the Court of Sessions Judge. The Sessions Judge took cognizance and thereafter transferred the case to the Additional Sessions Judge. After transfer of case to the Additional Sessions Judge and after statements of ten witnesses had been recorded by the trial Court an application was moved on behalf prosecution seeking that they may be permitted to submit an additional report under the provisions of Section 173 (8), Cr. P. C. This application was allowed by the trial Court. It was held;

"The words ''after a report under subsection (2) has been forwarded to the Magistrate'' show that the officer incharge of a Police Station is empowered to investigate even after the report has been forwarded to the Magistrate. But if the provisions of subsection (2), (3) and (8) are read together it imply that even the powers of the investigation by the incharge of Police Station have to be exercised before cognizance is taken. It is also significant that cognizance has to be taken under the provisions of Section 190, Cr. P. C. and the Magistrate is given power to take cognizance upon a police report which means the additional report if any, submitted under subsections (3) and (8). Subsection (8) does not empower the investigating officer to submit an additional report after the cognizance had been taken. The order of the Special Judge was, therefore, clearly without jurisdiction."

Learned counsel for State based himself on S. B. Sah and others v. M. S. Kochar A.I.R, 1979 S,C, 1841, wherein it was pointed out that the question of sanction under Section 197 Cr. P. C. can be raised and considered by the Court at the initial stage of the proceedings. Under such circumstances, his contention was that it was open to the Chief Judicial Magistrate to proceed on the additional report submitted by police on 21101980 based on sanction by the District Magistrate, Fatehpur dated 6101981.

I do not subscribe to "this view for the simple reason that in the aforesaid case no sanction under Section 197 of the Cr. P. C. was essential for prosecution of accused of that case under Section 409 I. P. C. and as such the nonprocuring of the sanction was not fatal. In the instant case Section 11 is imperative and provides that very Court is barred from taking cognizance of the offence without such sanction. In face of this mandate all the proceedings conducted in the Court of Magistrate after taking cognizance of the offence without sanction were illegal. Procuring the sanction under Section 11 of the Essential Commodities Act, 1965 was a condition precedent for taking cognizance of the offence. He had no jurisdiction to take cognizance of the offence for no compliance of Section 11 aforesaid.

In the result, the revisions alongwith connected cases succeed and are allowed. The proceedings in the Court below are quashed.