Shyam Sahu and Others vs The State of Bihar

S.N. Jha, J.—The petitioners have moved this Court u/s 482 of the Code of Criminal Procedure (in short ''the Code'') of for quashing the entire criminal proceeding including the order dated 23.8.1983 whereby the learned Sub-divisional Judicial Magistrate, Jhanjharpur has taken cognizance against the petitioners u/s 7 of the Essential Commodities Act (in short ''the E.C. Act''). The facts which led to the filing of this application, in short, are that on 13.6.1983, the Marketing Officer, Jhanjharpur lodged a complaint before the Chief Judicial Magistrate, Jhanjharpur alleging, inter alia, that on 20.2.1983 he had gone to inspect the brick kiln of the petitioners at 12.00 noon and demanded production of stock register, sale register and cashmemo which could not be made available to him. It was further alleged that the petitioners had also not displayed the stock position and price of the brick at a conspicuous place as envisaged under the provisions of Bihar Essential Commodities (Price and Stock Display) Order, 1976 (in short ''the Display Order''). A copy of the complaint petition is Annexure-1 appended to this application.

On the basis of the complaint petition, the cognizance was taken as indicated above.

It was contended on behalf of the petitioners that the order of cognizance is completely without jurisdiction in view of the amendments made in the E.C. Act. According to the learned counsel, the special courts constituted u/s 12A of the E.C. Act has jurisdiction to take cognizance of an offence committed after such amendment.

It appears that the E.C. Act was amended by Easemial Commodities (Special Provisions) Act, 1981 (Act No. 18 of 1981) which came into force on 1.9.1982 vide notification No. GSR 553(E) dated the 31st August, 1982. By virtue of this amendment, section 12A and section 12AA of the E.C. Act was substituted. Section 12A deals with the constitution of special courts and section 12AA deals with the offences triable by special courts. Clause (e) of section 12AA of the E.C. Act reads as follows:--

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.

It was contended that all offences committed after 1.9.1982 under the E.C. Act shall be triable only by the special court constituted for the area in which the offences are committed as per section 12AA of the Act and under clause (e) of section 12AA the special court can only take cognizance of such offence. In the instant case, since the cognizance was taken by the Sub-divisional Judicial Magistrate, Jhanjharpur u/s 7 of the E.C. Act for an offence committed after 1.9.1982, the same is illegal, without jurisdiction and fit to be quashed.

The learned counsel has relied upon a decision in the case of Gaya Prasad alias Gaya Prasad Gupta vs. The State of Bihar, 1988 P.L.J.R. 477 where the situation was otherwise. In the aforementioned case the Special Judge has taken cognizance of an offence u/s 7 of the E.C. Act committed prior to 1.9.1982 which was quashed by this Court on the ground that Special Court came into existence on 1.9.1982 and the Special Court could take the cognizance of the offence committed after the enforcement of the Act No. 18 of 1981 i.e. on 1.9.1982 and so far the offences committed prior to that date are concerned, the Special Judge had no jurisdiction to take cognizance of such offence since it was not in existance. His Lordship held that the Special Judge can take cognizance of the offence committed after 1.9.1982.

I may indicate here that by Act 18 of 1981 certain special provisions by way of amendment to the main E.C. Act for dealing more effectively with persons indulging in hoarding and black marketing or violating certain orders made under the provisions of E.C. Act etc. were provided and various new sections were substituted; for example sections 12A and 12AA and other provisions. I have already mentioned above that under the new section 12A , the State Government was empowered to constitute as many special courts as may be necessary for each area or areas by gazette notification S.O. 1328 dated 20.9.1982. The State Government for the purpose of providing speedy trial of the offences under the E.C. Act constituted 33 special Courts including four for the Metropolitan towns for the area specified in the schedule (Annexure-B) appended to the E.C. Act. Item 17 shows that one court was constituted in the district of Madhubani giving jurisdiction to the entire area comprising the district of Madhubani within whose jurisdiction the present case lies. In the case of Baldeo Prasad alias Baldeo Prasad Keshri vs. The State, 1985 P.L.J.R. 981, a question arose as to whether an anticipatory bail u/s 438 of the Code by an accused of the offence u/s 7 of the E.C. Act should be filed before the Special Court constituted u/s 12A of the E.C. Act or before the Sessions Judge and the question was decided by division Bench of this Court holding that the special Courts constituted by the amendment act had the powers and stand on similar footing as regular courts of Sessions. Accordingly, it can exercise the same powers as the Court of Sessions in the matter of entertaining the application for anticipatory bail u/s 438 of the Code.

In that view of the matter, it is now clear that after the amendment, the Special Court constituted for the area can take cognizance u/s 7 of the E.C. Act for the offence committed after 1.9.1982. In the instant case, the offence is said to have been committed on 20.2.1983. Therefore, in my view, the Special Court has only jurisdiction to tale cognizance for the violation of the Display Order of cognizance dated 23.8.83 passed by the Sub-divisional Judicial Magistrate, Jhanjharpur is without jurisdiction and the same is fit to be quashed.

Accordingly, the order dated 23.8.1983 passed by the learned Sub-divisional Judicial Magistrate, Jhanjharpur by which cognizance has been taken against the petitioners, is hereby quashed.

So far as the quashing of entire criminal prosecution is concerned. I may indicate here the entire proceeding cannot be quashed. The report of the complaint petition may be forwarded to the Special Judge, Madhubani who may, upon a perusal of the report, if satisfied that the complaint constitutes an offence under the Act may take cognizance of the offence and proceed with the trial. Accordingly, this application is disposed of with the aforesaid observations.