State vs Subhan Ganai

(1) A complaint by some residents of Sopore was received by the Hon'ble Chief Justice against Mr. A.M. Fazli. Sub Judge, A.D.M. Sopore, for

having discharged Subhan Ganai respondent in the present case. The complaint was sent to the Vigilance Commissioner (Judicial) by his Lordships

the Chief Justice on 2381968 and the Vigilance Commissioner made a report to his Lordship the Chief Justice, who ordered that the matter be

placed before me. On going through the relevant record, I issued notice to Subhan Ganai respondent to show cause why the order of discharge

passed by the A.D.M. Sopore, wrongly mentioned as an order of acquittal should not be set aside. He appeared in pursuance of this notice and I

have heard both the Learned counsel as well as the Dy. Advocate General in this case.

(2) It appears that a report was lodged in Police Station Sopore on 381968 by one Ahad Bhat wherein it was stated that the respondent Subhan

Ganai had sold to him a kilo of meat for Rs. 6/against the controlled price of the commodity fixed at Rs. 5/ After making some investigation the

police presented a challan against the accused u/s f of the Hoarding and Profiteering Ordinance, 2000 before the A.D.M. Sopore Mr. A.M. Fazli

on 581968 giving the facts of the case. The Magistrate on that very day without recording any evidence acquitted the accused holding that there

was no material on record which would indicate as to what was the maximum price of meat in Sopore, fixed by the authorities u/s 3 of the

ordinance No. XIX of 2000, which is wrongly mentioned as 2008. The learned counsel appearing for the respondent has supported this so called

order of acquittal. The first argument of Mr. Kaul, the learned counsel for the respondent, that the Magistrate was justified in acquitting the accused

because the facts as required u/s. 190 of the Code of Cr. Procedure were not disclosed in the challan. In particular the charge sheet prepared by

the police did not make any mention of any notification fixing the price nor was any such notification attached with the charge sheet. He has argued

that u/s. 190 (b) the Magistrate could take cognizance of this case upon a report in writing of such facts'. Such facts has reference to subsection (a)

a complaint of facts which constitutes such offence. Mr. Kaul in support of this argument has referred to AIR 1958 Calcutta 612. This case was

also under the Essential Commodities Act and this au hority lays down that :

The First Information Report drawn on a letter sent by a Police Sub Inspector is not report in writing as required u/s. 11 of the Essential

Commodities Act......

(3) The judgment is brief on this point. It does not mention what language of section 11 of the Essential Commodities Act is. On a perusal of that

Act, the words of section 11 are as under :

No court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made

by a person who is a public servant as defined in sec. 21 of the Indian Penal Code.

(4) And the authority has correctly laid down that the F.I.R. which was drawn on a letter sent by the Police SubInspector would not be a report in

writing of the facts constituting the offence. However this judgment does not help the respondent at all. In this case the full facts of the case are

given in the F. I. R. and in the chargesheet presented by the police. The sections under which the charge sheet is laid have been fully given in the

First Information Report. The other authority referred to namely AIR 1952 Travancore Cochin 14 does not appear to be at all relevant. That

authority deals with the provisions of the Companies Act and interpretation of Art. 30 and 31 of the Constitution of India etc. The fact that

notification fixing the price of meat in Sopore was not appended to the charge sheet is of no consequence. That was in the nature of a statutory

provision which had been contravened, the Magistrate could have demanded the production of this notification before he decided the case against

the respondent. Without calling upon the police or anybody else or the prosecution to produce the notification he has acquitted the accused the

moment the challan was presented to him. It was rightly pointed out by the Dy. Advocate General that the notification read with the Ordinance

constituted law and it was the duty of the Magistrate as much as of the parties to find out the correct law and administer it.

(5) The second point raised by Mr. Kaul is that if the accused has been discharged in a warrant case u/s. 251 A (2) Cr. P. Code no retrial can be

ordered. He has referred in this connection to an authority AIR 1960 AP 391. This authority lays down that in a warrant case instituted on police

report if the accused is discharged u/s. 251 A (2) the Sessions Judge has no power u/s. 436 to remand the case for further enquiry. In that case it

has been held that the proper procedure to be followed by the Sessions Judge is to make a reference to the High Court for quashing the order of

discharge. This authority has no application to the facts of this case. The record of the case has come to the notice of this court and this court is

fully empowered under the provisions of Section 439 Cr. P. Code to exercise any of the powers conferred on a court of appeal by Sections 423,

426, 427 and 429 or on a court by Section 338. The High Court exercises a supervisory jurisdiction in order to correct miscarriage of justice,

arising from misconception of law, irregularity of procedure, neglect of proper precautions, or apparent harshness of treatment which has resulted,

on the one hand, in some injury to the due maintenance of law and order, or on the other hand, in some unserved hardship to individuals. The High

Court has a wide discretion which will be exercised in each case according to the view which the court may take of the requirements of justice.

See AIR 1954 Assam 83.

(6) Another point argued by Mr. Kaul is that in this revision the Sessions Judge should have moved before the matter could be taken up by the

High Court. The present course would prejudice the respondent and deprive him of one forum i.e. Sessions Court to support the order and

judgment of the trial court. It has to be kept in view how the proceedings were started against the respondent. In fact no revision was preferred

against the order of socalled acquittal by the police or anybody else. It was on a complaint against the Magistrate, Mr. Fazli, that the proceedings

came to the notice of the High Court and action has been taken. There is nothing in law to prevent the High Court in circumstances from examining

the record and passing proper orders without the Sessions Court being moved in this behalf. Section 439 itself empowers the High Court to

exercise the powers vested therein when any facts necessitating scrutiny otherwise also come to it knowledge.

(7) The learned counsel for the respondent lastly argued that the order of the Magistrate was an order of acquittal and no revision should be

entertained. In the first place this order is clearly an order of discharge under Section 251A when the accused appears or is brought before a

Magistrate in any case instituted on a police report. The Magistrate has to satisfy himself that the documents referred in Section 173 have been

furnished to the accused and if they are not furnished, it is the duty of the Magistrate to cause them to be furnished. Under subsection (2) of this

very section if upon consideration of all the documents referred to in Sec. 173 the Magistrate after hearing the prosecution and the accused

considers the charge against the accused groundless, he shall discharge him In this case it appears that the Magistrate has purported to act under

subsection (2) of Section 251A and his order though described as an order of acquittal is nothing but an order of discharge apart from this fact, it

is settled law now that the High Court can entertain a revision even against an acquittal. There is a catena of authorities on this point. The authorities

of the Supreme Court only on this point need be referred. They are AIR 1951 SC 196, 1962 SC 1788, 1951 SC 316, 1964 2 CR : Law Journal

74 and 1958 SC 707. The Supreme Court has further defined the powers of the High Court in entertaining such revisions against acquittals. I need

only quote the observations of their Lordships of the Supreme Court from 1958 SC 707 and that is :

The practice on the subject has been started by this Court on more than one occasion. In D. Stephens Vs Nosibollam 1951 SCR 254 ( AIR 1951

SC 196 ) Only two grounds are mentioned by this court as entitling the High Court to set aside an acquittal in a revision and to order a retrial. They

are that there must exist a manifest illegality in the judgment of the Court of Session ordering the acquittal or there must be a gross miscarriage of

justice. In explaining these two propositions, this court further states that the High Court is not entitled to interfere even if a wrong view of law is

taken by the court of session or if even there is misappreciation of evidence. Again in Logendranath Jha Vs Polallai Biswas, 1951 SCR 676 (AIR

1951 SC 316), this court points out that the High Court is entitled in revision to set aside an acquittal if there is an error on a point of law or no

appraisal of the evidence at all, This court observes that it is not sufficient to say that the judgment under revision is ""perverse"" or ""lacking is true

correct perspective"" It is pointed out further that by ordering a retrial, the dice is loaded against the accused, because however, much the High

Court may caution the Subordinate Court, it is always difficult to reweight the evidence ignoring the opinion of the High Court. Again in K.

Chinnaswamy Reddy Vs State of Andhra Pradesh 1968 (8) SCR 412 (AIR 1952 SC 1788), it is pointed out that an interference in revision with

an order of acquittal can only take place if there is a glaring defect of procedure such as that the Court had no jurisdiction to try the case or the

court had shut out some material evidence which was admissible or attempted to take into account evidence which was not admissible or had

overlooked some evidence. Although the list given by this court is not exhaustive of all the circumstances in which the High Court may interfere

with an acquittal in revision it is obvious that the defect in the judgment under revision must be analogous to those actually indicated by this

court......

(8) Therefore the revision can be entertained by the High Court even if the order of the Magistrate is constrate to be an order of acquittal.

(9) On the merits of the order, there can be no two opinions. The Magistrate has without applying his mind to the facts of the case and without

affording an opportunity to the prosecution to show that a notification had been issued by the competent authority under the Hoarding and

Profiteering ordinance No. XIX of 2000 that the price of meat at Rs. 5/ per kilo had been fixed in the town of Sopore it seems no sooner was the

challan presented, the i Magistrate for reasons best known to him, took up the case and dismissed the police challan and in his anxiety or confusion

described the order of discharge as an order of acquittal. The order of the A.D.M. Sopore dated 581968 discharging the accused represent

Subhan Ganai is set aside and the case shall now be tried in accordance with law by the Chief Judicial Magistrate Sopore.