Nohar Chand vs State of Punjab

B.S. Yadav, J.

This order will dispose of Criminal Misc. petition No. 4556M and No. 4558Mof 1983.

Both these petitions have been filed under section 482 of the Code of Criminal Procedure, 1973, for quashing the First Information Reports No. 15 and 16 dated 11th January, 1980, registered in Police Station Majitha, against the petitioner and others. The petitioner also prays for quashing of the charge framed against him in the two cases instituted on the basis of those First Information reports in the Court of the Judicial Magistrate Ist Class, Amritsar.

The brief facts are that the above F.I.Rs. have been registered against the petitioner as he is alleged to have manufactured substandard fertilizer. After investigation, charge sheets were presented in the Court against him as well as against the dealers from whom samples of fertilizer were seized.

Many grounds have been taken in the petitions, but before me only two grounds were pressed, and, therefore, I will confine the discussion to those two grounds alone. The first ground taken is that the case has to be tried summarily in view off section 12A of the Essential Commodities Act, 1955, as the present offence falls under the Fertilizer Control JUDGMENT 1957, issued under section 3 of the said Act and which order has been declared a special order and as in a summary trial under the above provision a Magistrate can impose sentence of imprisonment only upto one year, therefore, the Courts are not competent to take cognizance of the offence after the expiry of one year from the date when the commission of the offence came to the knowledge of the police. According to the learned counsel, the case was registered in January, 1980 while the charge sheet was presented in the Court some where in January, 1983. According to him, the period of limitation would be governed by clause (b) of subsection (2) of section 468 of the code. I need not dilate on this point because it has been already discussed in detail in a judgment given by me in Dharam Nath and another v. The State of Punjab, 1984(1) R.C.R.(Criminal) 20, (Crl. Misc. No. 2065Mof 1983 decided on 19th August, 1983) , wherein I had held that as the offence, like the present one under the Fertilizer Control JUDGMENT 1957, was punishable with imprisonment for a term which might extend to seven years, therefore, section 468 of the Code was not applicable.

The second ground urged by the learned counsel for the petitioner was that in view of section 12A of the Essential Commodities Act, 1955, the case is to be tried in a summary manner though option has been given to the Magistrate to try it in a regular manner, but before trying a case in that manner, the learned Magistrate has to hear the parties and record reasons. The learned counsel for the petitioner drew my attention to the second proviso appended to section 12A of the Act. That proviso read as follows :

"Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason undesirable to try the case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and thereafter recall any witnesses who may havebeen examined and proceed to hear or rehear the case in the manner provided by the said Code."

He argued that in the present case before framing the charge against the petitioner, the learned Magistrate did not hear him, nor recorded any reason for not trying the case in a summary manner. According to him, the petitioner has been prejudiced. The basis for this prejudice is said to be that in a summary trial the petitioner can be punished only with imprisonment upto one year while in a regular trial he can be punished with imprisonment which might extend to seven years.

In the reply filed on behalf of the State, it has not been disputed that the learned Magistrate did not hear him, nor recorded any reason for not trying the case in summary manner. According to him, the petitioner has been prejudiced. The basis for this prejudice is said to be that in a summary trial the petitioner can be punished only with imprisonment upto one year while in a regular trial he can be punished with imprisonment which might extend to seven years.

For the reasons given above, I reject the prayer of the petitioner so far as the relief for quashing of the First Information Reports is concerned. However, it is accepted so far as it relates to the quashing of the charge framed against him in the two cases and accordingly charges framed by the learned Judicial Magistrate Ist Class, Amritsar, against him in those cases are quashed. The learned Magistrate is directed to proceed with the cases in accordance with law and in the light of the above observations. The parties are directed to appear in the trial Court on 22nd November, 1983. Both the petitions are disposed of accordingly.