Kailash Prasad Agarwalla and Others vs State of Jharkhand

D.K. Singh, J.—The petitioners have preferred this Cr. Revision for setting-aside the order impugned passed by the S.D.J.M., Dhanbad in G.R. No. 4380/93 on 21.11.05 whereby and whereunder their petition for discharge was dismissed.

Learned Counsel submitted that in the present case chargesheet was submitted against the petitioners and two others for the offence under Sections 420/468/471/379 read with Section 120-B, IPC as also u/s 7 of the Essential Commodities Act to which a discharge petition was filed on behalf of the petitioners which was rejected with the observation.

Heard both the sides and perused the case record. After perusal of the case record it appears that the raised points are subject-matter of trial which would be examined later on and there is sufficient materials available on the record against the accused persons for framing of charge. If these material available on the record are kept un-rebutted against the accused persons this would warrant conviction of the accused persons. Hence the Court rejects the petition 29.8.2005. Accused persons are directed keep themselves physically present on...for framing of charge. (Dt).

Sd/- S.D.J.M.

Learned Counsel Mr. Shailesh pointed out the maintainability of the prosecution of the petitioners for the offence u/s 7 of the E.C. Act and submitted that under Clause 30 of the Bihar Trade Articles (Licences Unification) Order, 1984 neither the Police Inspector (Food), CID, Bihar has jurisdiction to file a complaint nor the Assistant Sub-Inspector of Police has jurisdiction to submit final form after investigation of the police case for the offence punishable u/s 7 of the E.C. Act. He further submitted that Clause 30 of the Unification Order confers only the power of entry search etc. to the Food Inspector i.e. the complainant in the instant case and not to file a complaint as observed by a Bench of Patna High Court in Jammaluddin v. State of Bihar reported in 1988 PLJR 350. The prosecution is silent as to whether the Inspector of Police (Food) complainant herein was authorized on the date of alleged offence by special notification to file a complaint against the petitioners. Similarly the Assistant Sub-Inspector of Police is precluded to investigate the case reported for the offence u/s 7 of the E.C. Act and to file final form u/s 173, Code of Criminal Procedure.

I find substance in the argument advanced on behalf of the petitioners that vide notification dated 21.4.1992 (G.S.R. No. 12) the word "Coal" has been deleted in Schedule 1 Item No. 3 of Part E of the Unification Order, 1984.

I find that the prosecution against the petitioners was launched on 17.11.93 for the offence u/s 7, E.C. Act and other sections of the IPC for the alleged continued offence since 1991 before "Coal" was deleted from Schedule 1 part E of the Unification Order vide notification No. G.S.R. 12 dated 21.4.1992. But since the Food Inspector CID was not a competent officer under Clause 30 of the Unification order 1984 to file a complaint for the offence punishable u/s 7 of the E.C. Act and similarly the Assistant Sub-Inspector of Police was precluded from investigation of such offence, the prosecution against the petitioners u/s 7, E.C. Act is not maintainable in Govindpur P.S. Case No. 305 of 1993 corresponding to G.R. No. 4380/93 and therefore, the cognizance of the offence u/s 7, E.C. Act against the petitioners is set-aside. However, it is to be noted that the cognizance taken by the S.D.J.M., Dhanbad in the other sections of the IPC against the petitioners has not been interfered by this order.

With the above observation, this petition is allowed.