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Judgment
S.A. Kader, J.—The important question of law that arises in these criminal miscellaneous petitions is, whether the Special Court, constituted
under the Essential Commodities Act, hereinafter referred to as the Act, can take cognizance of an offence under the said Act on a report made by
a public servant other than a police official by virtue of Section 11 of the said Act.
In Cr.M.P. No. 4858 of 1983 the Respondent therein, the Agricultural Officer (Inputs), Office of the Assistant Director of Agriculture, Erode
has launched this criminal prosecution against the Petitioner therein in the Special Court for Essential Commodities, Coimbatore for violation of
Clauses (10), 13 (b) (ii) and 21 (a) of the Fertilizer Control Order, 1957 punishable u/s 7(1)(a)(ii) of the Act in S.T.C. No. 6 of 1983. In Cr.M.P.
No. 7677 of 1984 the Respondent therein the Special Tahsildar, Sugarcane Procurement, Udumalpet Taluk, has filed this criminal prosecution
against the Petitioner therein in the Special Court for Essential Commodities, Coimbatore, for violation of the direction issued under the Sugarcane
(Control) Order, 1976, punishable u/s 7(1)(a)(ii) of the Essential Commodities Act, 1955 in S.T.C. No. 22 of 1984. It is to quash these
proceedings the accused have come forward with these petitions.
Section 12(AA)(1)(e) of the Act introduced by the Amendment Act, 18 of 1981 lays down that
A Special Court may, upon a perusal of police report of the facts constituting an offence under this Act take cognizance of that offence without the
accused being committed to it for trial.
On the basis of this clause, it is contended by the learned Counsel for the Petitioner-accused that the amendment introduced by the Amendment
Act 18 of 1981 is a self-contained Code in itself and the Special Court can take cognizance of offences under the Act only on the report filed by
the police and not by any other public servant. Reliance is sought to be placed on the decision of a single Judge of the Calcutta High Court in In
Re: Satsih Chandra De, . where it has been held that so long as the Amending Act 18 of 1981, which is of a temporary character, operates in the
field, Section 11 of the Act which enables any public servant to file a complaint for an offence under this Act cannot be taken recourse to, to
prosecute a person accused of an offence under the Act.
It will now be useful to refer to the relevant provisions of the Act;
S.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 11 of the Indian Penal Code, 1860 (45 of 1860).
S 12-A: Constitution of Special Courts:(1) The State Government may, for the purpose of providing speedy trial of the offences under this Act, by
notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may by specified in the
notification (substituted by the Amendment Act 18 of 1981).
S. 12-AA has been introduced by the Amendment Act 18 of 1981 and the provisions relevant for our purpose are as follows:
S.12-AA Offences triable by Special Courts: (1) Notwithstanding anything contained in the Code,- (a) all offences under this Act shall be triable
only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for
such area, by such one of them as may be specified in this behalf by the High Court;
(e) a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act, take cognizance of that offence without
the accused being committed to it for trial.
12-AC: Application of Code to proceedings before a Special Court: Save as otherwise provided in this Act, the provisions of the Code (including
the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purpose of the said provisions, the Special
Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court shall be deemed to be a Public
Prosecutor.
Code"" means the Code of Criminal Procedure, 1973 (Act II of 1974) vide Section 2(i)(a) the Act.
It is seen from S. 12-AC of the Act quoted above that the Special Court constituted under this Act shall be deemed to be a Court of Session S.
12AA(1)(a), extracted above, renders all offences under this Act triable only by the Special Court, which is a Court of Session. It follows that all
offences under the Essential Commodities Act are made offences triable exclusively by the Court of Session. u/s 193 of the Code of Criminal
Procedure no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a
Magistrate under the said Code except as otherwise expressly provided by that Code, or by any other law for the time being in force. Section 12-
AA (l)(e) of this Act provides that exception by which the Special Court constituted under this Act, which is deemed to be a Court of Session, is
empowered to take cognizance of an offence under this Act upon a perusal of the police report without the accused being committed to it for trial.
So far, the position is clear and does not admit of any doubt.
The further contention advanced by the learned Counsel for the Petitioners that by virtue of Section 12-AA introduced by the Amendment Act
18 of 1981, Section 11 of the Act becomes inoperative and the Special Court can take cognizance of an offence under this Act only on the report
filed by the police u/s 12AA(1)(e), does not appear to be sound. With due deference to the learned Judge who has decided Satish Chandra De, In
Re: Satsih Chandra De, , referred to above, I am unable to persuade myself to accept the view that during the subsistence of the Amending Act 18
of 1981, recourse cannot be taken to Section 11 of the Act and no public servant other than a police official can file a complaint for an offence
under this Act. If such were the intention of the Legislature, it could have done so by deleting Section 11 of the Act. The Amendment Act 18 of
1981 has not, in the least, touched or affected Section 11 of the Act. Hence Section 11 cannot be rendered nugatory or inoperative, albeit for a
short time, by judicial interpretation when the legislature could have but has not chosen to do so. We have, therefore, to aim at a harmonious
construction.
As already pointed out, all offences under this Act are made triable exclusively by the Court of Session u/s 12-AA(1)(a) of the Act, viz., the
Special Court constituted under this Act which is deemed to be a Court of Session. No Court of Session can take cognizance of an offence as a
Court of original jurisdiction unless the case has been committed to it by a Magistrate and exception to this Rule is made u/s 12-AA(1)(e) by which
this Special Court of Session can take cognizance of an offence under this Act without the accused being committed to it for trial where a report is
filed by the police. The result is, where a complaint of an offence under this Act is filed by a public servant other than a police official, the Special
Court constituted under the Act cannot take cognizance of it as a Court of original jurisdiction. In such a case, the procedure laid down in the
Code of Criminal Procedure for offences triable exclusively by a Court of Session in cases instituted otherwise than on a police report will have to
be followed. Such a complaint by a public servant other than a police official has, therefore, to be filed before a Magistrate of competent
jurisdiction who has to call upon the complainant to produce all his witnesses and examine them on oath as laid down in the proviso to Section
202(2) of the Code and commit the accused to take his trial before the Special Court of Session u/s 209 of the Code. The Special Court shall then
take cognizance of the offence in accordance with Chapter XVIII of the Code of Criminal Procedure dealing with trial before a Court of Session
In other words, where a charge-sheet is filed by the police for an offence under this Act, the Special Court can straightway take cognizance of it as
a Court of original jurisdiction and where the complaint is filed by a public servant other than a police official, the said complaint will have to go
through the gauntlet of a committal proceeding. I do not find any anomaly in two different procedures being followed for the same offence
depending upon the nature of the report filed before the Court and the prosecuting agency.
In fine, I find that the Special Court for Essential Commodities, Coimbatore, is not competent to take cognizance of the complaints filed by the
Respondents in these two criminal miscellaneous petitions as a Court of original jurisdiction. The Court below is, therefore, directed to return the
complaints to the Respondents for presentation to the concerned Magistrates.
No other point is urged before me.