Rabindra Kumar Choubey vs The State of Bihar

Madhavendra Saran, J.—These two criminal miscellaneous applications have been heard together and this judgment will govern both of them. Cr. Misc. No. 9611 of 1999 has been filed u/s 482 of the Code of Criminal Procedure (in short as Code) for quashing the order dated 25.7.1997 passed by learned Special Judge, Essential Commodities Act (in short as E.C. Act), Biharsharif at Nalanda in Bihar (Murarpur) P.S. Case No. 745/89 whereby and whereunder he has taken cognizance under sections 7 of E.C. Act and 409 and 120B of the Indian Penal Code.

In Cr. Misc. No. 1572 of 1998 the same prayer has been made.

It appears that on 6th October. 1989 a First Information Report was registered by Officer Incharge of Murarpur Police Station against the petitioners and others with the allegations that R.K. Choubey, Divisional Forest Officer, Nalanda took delivery of 300 quintals of wheat from Vyapar Mandal, Biharsharif under NREP scheme for distribution amongst the labourers but informant Baleshwar Singh Inspector of Food came to know that R.K Choubey has sold away the wheat in question in black market and the same war purchased by accused Anandi Prasad and Rameshwar Prasad. The shop of Anandi Prasad was inspected and 84 bags of wheat was found stored. Stock register was produced and it was showing 84 quintals of wheat in the stock, which was purchased on different dates from different persons named in the stock register. It is said that in a tin shed situated away from the business premises of Anandi Prasad 40 quintals of rice and 126 quintals of wheat was found stored.

On the basis of above allegations an F.I.R. was registered as Bihar (Murarpur) Rs. Case No. 744/89 dated 6.10.1989. The police took up investigation and after concluding the same submitted chargesheet in the court of learned Special Judge. Nalanda at Biharsharif being Charge-sheet No. 105/97 dated 24.7.1997. Learned Special Judge vide order dated 25.7.1997 took cognizance under sections 7 of E.G. Act and 409 and 1208 of the Penal Code. Against the said order of cognizance, the present two miscellaneous applications have been preferred before this Court for quashing.

Mr. N.K. Agrawal, advocate appearing on behalf of the petitioner of Cr. Misc. No. 9611 of 1999 submitted that after addition of Section 12AA of E.C. Act all the offences relating to Section 3 are to be tried summarily and special courts have been provided by Section 12AA of the E.C. Act to expedite the trial of the offence under the E.C. Act. He submitted that special trial of such offence has been provided for and the special procedure provided under the Code has been made applicable. He further pointed out that an offence under the Indian Penal Code, which is not triable in a summary way, cannot be tried by special court constituted under the E.C. Act and therefore, the order taking cognizance of offences under s 409 and 120B of the Penal Code is illegal. In support of his contention Learned Counsel placed reliance on a decision reported in 1996 (1) BLJ 525 given in the case of Ganesh Prasad Karn vs. State of Bihar. He further submitted that cognizance taken u/s 7 of the E.C. Act is hit by limitation also. He also submitted that at the relevant time for dealing in rice and wheat no licence was required and as such the case of Anandi Prasad did not fall within the mischief of Bihar Trade Articles (Licences Unification) Order. 1984.

In the decision relied upon by the petitioner Anandi Prasad it has been observed that "the offence under the Penal Code, not triable in a summary way, cannot be tried by the special court, constituted under the E.C. Act in view of specific provision contained in Section 12AA of the E.C. Act. The offences under sections 120 and 409 of the Penal Code are not triable in a summary way u/s 260 of the Code and as such cognizance taken under the said Act by the special Judge is bad in law and accordingly quashed".

The decision relied upon by the petitioner squarely covers his case. In the present case also cognizance has been taken under sections 7 of E.C. Act and 409 and 120B of the Penal Code. The offences under sections 120B and 409 of the Penal Code are not triable in a summary way u/s 260 of the Code and as such cognizance taken under the said sections by the Special Judge is bad in law.

As regard the period of limitation. Section 468 of the Code may be seen. Section 468 of the Code reads as follows:

"468. Bar to taking cognizance after lapse of the period of limitation -(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be:

(a) six months, if any offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be. the most severe punishment."

In the present case the cognizance has been taken for more than one offence and so the plea of limitation has to be seen with reference to the offence punishable with more severe punishment. For determining the period of (imitation only the extent of imprisonment prescribed for the offence has to be taken into account. The punishment provided u/s 409 of the Code is an imprisonment for ten years. So there is no question of application of limitation in the present case.

It is the contention of Learned Counsel that for dealing in rice and wheat no licence was required at the material time. In support of his submission by placing reliance on the provisions of unification order and a decision of this Court given in the case of Aditya Flour Mills (P.) Ltd. and Others Vs. State of Bihar and Another, he submitted that clause 3 of Unification Order provided for obtaining of licence either by a wholesale dealer or a retail dealer as defined in clause 2(p) and (u) of the said order. These two definition clauses have been made operative by prescribing the outer storage limits for trade article in which a dealer wishes to carry on the business. The said outer limits with reference to the storage of trade articles had been notified by the Government by notification No. GSR 49 dated 17.10.1985. Then another notification was issued namely GSR 57 dated 10th November, 1986 wherein it was provided that for computing the limits of storage of foodgrains. the stock of rice and wheat will not be taken into account. Therefore- during the con tinuance of this notification a person car-rying on business only in rice and whean was not a wholesale dealer or a retal dealer within the Unification Order. As such it did not fall within the mischief of charg-ing clause requiring licence. It appears that the aforesaid notification was later on superseded by GSR No. 42 dated 21.11.1987 whereby and whereunder rice and wheat was again subjected to storage limits. The validity of this notification was challenged in the case of Aditya Flour Mills (supra) and the notification was de-dared as ultra vires on the ground that the same was enforced by the State Gov ernment without obtaining prior concurrence of the Central Government as required in law. Therefore, on the date of alleged oc-currence i.e. on 6.10.1989 GSR 57 dated 10th November. 1986 was holding the field whereby no licence was required for carrying on business of rice and wheat

On behalf of other petitioner has been contended that on the basis of F.I.R. a departmental enquiry was also initiated in which the entire records and relevant documents were examined ana after considering the entire facts and fig-ures the petitioner has been exonerated from the charges on 28.4.1993 but on the same charges, charge-sheet has been sub-mitted against the petitioner. He also submitted that the Investigating Officer had moved for obtaining sanction but the same has been refused. Learned Counsel pointed out that in absence of sanction the order of cognizance in the case is illegal.

Learned A.P.P., on the other hand submitted that necessity of sanction has to be ascertained from the stage to stage with the progress of the case. Ho also submitted that the court can direct the Government to grant necessary sanction.

From what has been mentioned, it is clear that the cognizance taken under sections 120B and 409 of the Penal Code by the Special Judge is bad in law. Then on the basis of the fact disclosed in the written report no offence u/s 7 of E.C. Act is made out against the accused Anandi Prasad.

In the above view of the matter, both the applications are allowed and the impugned order of cognizance is quashed. Before parting with the order, I would like to observe that it is open for the prosecution to file a fresh chargesheet if permissible before the regular court for prosecution of accused for the offences punishable under sections 409 and 120B of the Penal Code. In case such chargesheet is filed it will be open to the petitioners to argue that no offence under sections 409 and 120B of the Penal Code is made out. It will also be open to the petitioner Rabindra Kumar Choubey to argue that without sanction he cannot be prosecuted. In case such points are urged then the court below will dispose of the same by a reasoned order.