Mangat Rai vs State of Punjab

R.L. Anand, J.

The learned counsel for the petitioner invites my attention to proviso to section 12AA (2) Essential Commodities Act, and submits that the learned Special Judge committed a patent illegality in framing the charge u/s 409 IPC, against the petitioner as the said offence was not triable in a summary manner as per the parent provisions as contained in section 409 IPC.

Notice to the State of Punjab.

On the asking of the court, Mr. Randhir Singh, DAG, Punjab accepts notice on behalf of respondent No. 1.

Heard on merits.

This is a criminal revision and has been directed against the order dated 29.10.1998, passed by the Special Judge, Moga who decided to frame charges against the petitioner U/s 7 of the Essential Commodities Act and Section 409 IPC.

Before I proceed further, I may state that vide the impugned order dated 29.10.1998, the learned Special Judge also discharged Mathra Dass, Satish Kumar, Smt. Rakesh Rani and Sat Narain, against whom, the State has not so far filed any revision.

Subsection (2) to section 12AA of the Essential Commodities Act lays down that "when trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code be charged at the same trial provided that such other offence is, under any other law for the time being in force, triable in a summary way."

The learned counsel for the petitioner submits that section 409, IPC, could not be tried in a summary way if the challan was presented against the accused in ordinary court of jurisdiction and, in these circumstances, the learned Special Judge committed a patent illegality in framing the charge u/s 409, IPC. In support of his contention, the learned counsel for the petitioner has relied upon a judgment of the Hon''ble Supreme Court in Jagdish Prasad Gupta v. State of Rajasthan and others, 1995 Supp.(3) SCC 386, wherein in para5, it was held as under :

"That apart, having examined the provisions of the Essential Commodities Act, we are satisfied that the Special Court constituted under section 12A of the Act is to be presided by a Single Judge who is qualified for appointment as a High Court Judge or he has, for a period of not less than one year, been a Sessions Judge or an Additional Sessions Judge. In the instant case admittedly, the Special Court is presided by an Additional Sessions Judge and as provided under section 193 of the Code of Criminal Procedure, the court of Session cannot take cognizance of any offence directly except as expressly provided by the Code of Criminal Procedure or by any other law for the time being in force. The section further lays down that 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 Code. That being the legal position, the Additional Sessions Judge who is presiding over the Special Court cannot get jurisdiction by a mere transfer of a case by the High Court. We may also point out that the High Court has not referred to any of these provisions before ordering such transfer. In the result, the impugned order is set aside and all the cases which are transferred by virtue of the impugned order dated 30.7.1993 are sent back to the Judicial Magistrate for CBI cases, Jaipur for being tried and disposed of in accordance with law."

In view of the interpretation to be given to the proviso to section 12 AA(2), the order dated 29.10.1998 is hereby set aside qua the petitioner with the directions to the learned Special Judge, Moga, to reexamine the issue qua the petitioner in the light of the provisions of proviso to section 12AA(2) and then to decide whether the petitioner could be chargesheeted u/s 409, IPC or not.

It was, then, submitted by the counsel for the petitioner that even the offence u/s 7 of the Essential Commodities Act could only be tried by the learned Special Judge in a summary manner in view of the substantive charge u/s 7 of the Essential Commodities Act against the petitioner. This aspect shall also be examined by the learned Special Judge who will formulate an opinion whether any criminal charge u/s 7 is to be framed against the petitioner or not.

Before I part with this order, I may also state that it will always be open to the State to challenge the order dated 29.10.1998 with regard to the persons who have been discharged by the learned Special Judge, Moga.

The revision stands allowed.

Copy dasti and one copy be sent to the learned Special Judge, Moga for compliance.

Revision allowed.