State of Madhya Pradesh vs Mojilal

R.J. Bhave, J.

The respondent was prosecuted for an offence under Clause (3) (1) of the Madhya Pradesh Foodgrains Dealers Licensing Order, 1965, read with section 7 of the Essential Commodities Act, 1955. The trial Court convicted the accused, but in appeal the case was remitted to the trial Court by the Additional Sessions Judge, Seoni, as, in his opinion, the procedure prescribed u/s 252 onwards of the Code of Criminal Procedure should have been followed and not the one prescribed u/s 251-A of the Code. The State has, therefore, preferred this appeal.

The facts of the case are that on 12-6-1967, the Sub-Divisional Officer, Lakhnadon, on search of the premises of the respondent, seized 6 quintals of wheat, 4� quintals of gram and 1� quintals of rice. As the total quantity of foodgrains exceeded 10 quintals, it was thought that the respondent ought to have taken a licence u/s 3 of the Madhya Pradesh Food-grains Dealers Licensing Order and his failure to do so resulted in commission of an offence punishable u/s 7 of the Essential Commodities Act. The Sub-Divisional Officer, therefore, reported the matter to the police and the police, after completing the enquiry, presented a challan before the trial Magistrate. As the case was started on a police challan, the Magistrate followed the procedure prescribed u/s 251-A of the Code of Criminal Procedure. The lower appellate Court, however, relying on the decisions of this Court in Sardar Khan Multan Khan Vs. State, and State of Madhya Pradesh Vs. Baital Nahar Singh, came to the conclusion that the procedure prescribed for cases started on a complaint should have been followed. In this view of the matter, the lower appellate Court set aside the conviction of the accused and remitted the case to the trial Magistrate for a fresh trial.

In Sardar Khan v. State (supra) it was held that inspite of section 20 (G) of the Opium Act (as amended locally) a complaint filed by the Excise Officer could not be deemed to be a case on a ''police report'' as contemplated u/s 251-A of the Code of Criminal Procedure and hence the investigation resulting in the prosecution of an offender under the Opium Act could not be said to be one under the provisions of Chapter XIV of the Code. This matter came before a Full Bench of this Court in Ashiq Miyan and Others Vs. The State of M.P., . In that case it was held that by section 20-G of the Opium Act a fiction was introduced by which a report made by an Excise Officer or the Police Department was deemed to be a ''police report'' contemplated u/s 190(1)(b) of the Code and, as such, the prosecution initiated on such a report would be governed by the procedure prescribed u/s 251-A of the Code. The decision in Sardar Khan v. State (supra) was overruled. The lower appellate Court failed to notice the Full Bench decision of this Court and relied on an overruled case.

In State of M. P. v. Baital Nahar Singh (supra) the accused was prosecuted u/s 7 of the Essential Commodities Act for violation of Clause 3 of the Madhya Pradesh Food Grains (Restriction On Border Movement) Order, 1958. The prosecution was initiated on a police challan. A Division Bench of this Court held that the charge-sheet presented by the police substantially complied with the provisions of section 11 of the Essential Commodities Act, but it was held that the procedure prescribed u/s 252 onwards of the Code of Criminal Procedure should have been followed. The Division Bench in State of M. P. v. Baital Nahar (supra) in support of the latter proposition relied on Sardar Khan''s Case (supra). The Full Bench decision in Ashiq Miyan v. State (supra) does not appear to have been brought to the notice of the Division Bench and it relied on a decision which was already overruled.

It is no doubt true that the prosecution in State of M. P. v. Baital Nahar Singh (supra) was under the Essential Commodities Act where the fiction created u/s 20-G of the Opium Act was not available. In our opinion, however, that does not make any difference for the reasons that follow. Section 11 of the Essential Commodities Act reads as under:

Cognizance of offences.

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 section 21 of the Indian Penal Code.

This section does not confer jurisdiction on any Magistrate or Court to take cognizance. There is no other section in the Act conferring such jurisdiction. It must, therefore, follow that the Courts get jurisdiction to take cognizance of the offences under the general law of the land and the procedure to be followed is the one prescribed by the Code of Criminal Procedure. The function of section 11 is only to prohibit a Magistrate or a Court from taking cognizance of an offence on a complaint of a private person. That is a safeguard provided for the protection of the businessmen against harassment. The proceedings can only be initiated by a public servant and by no one else. Now, the public servant may be a departmental employee or a police officer. In the former case, his report shall necessarily be a complaint; but in the case of a police officer it can be a ''police report'' if the offence committed is a cognizable offence. There is nothing in section 11 to indicate that it prescribes any procedure for taking cognizance of any offence. Its purpose is prohibitive and restrictive which eliminates private complaints and ensures that the public officer should apply his mind to the facts of the case. This is achieved by insistence on a report in writing containing the facts constituting the offence in question. Their Lordships of the Supreme Court in Bhagwati Saran and Another Vs. The State of Uttar Pradesh, stated the purpose of section 11 of the Essential Commodities Act as under:

The report u/s 11 is required to contain only ''a statement of facts constituting the offence'' and its function is not to serve as a charge-sheet against the accused. The function or purpose of the second of the three requirements of section 11 is to eliminate private individuals such as rival traders or the general public from initiating a prosecution and for this purpose before cognizance is taken the complaint is required to emanate from ''a public servant''. The two further requirements, viz., that the report should be in writing and regarding the contents of the report, are to ensure that there shall be a record that the public servant is satisfied that a contravention of the law has taken place.

These observations support the view already expressed by us.

The Full Bench decision in Ashiq Miyan''s Case (supra) was challenged before the Supreme Court. That Court in Ashiq Miyan and Others Vs. State of Madhya Pradesh, held that inasmuch as the offence was investigated in accordance with the provisions of the Opium Act by a Police Sub-Inspector, the trial held by the Magistrate u/s 251-A of the Code of Criminal Procedure was not illegal. Their Lordships observed that it was not necessary for them to consider the larger question as to whether, when an Excise Officer makes a report u/s 20-G of the Opium Act, the trial, following it, in such a case, would be governed by section 251-A of the Code or not. In the particular case the investigation was made by the police officer and the report was submitted by him and it was on the report of the police officer that the Magistrate had acted. Under the circumstances, section 251-A, in terms, directly applied to the case and it was in accordance with the procedure in that section that the trial was held. There was thus no illegality in the trial. From this decision it would appear that where any officer other than the police officer files a report, that report may not be equated with a ''police report'' even if a fiction has been created to that effect; but where a police officer, in exercise of his rights, investigates an offence and files a report, that report must be treated as a ''police report'' and in such a case the provisions of section 251-A of the Code are attracted. It would, therefore, appear that the authority of the decision in State of M. P. v. Baital Nahar Singh (supra) is shaken by the pronouncement of the Supreme Court. We have already expressed the view that section 11 of the Essential Commodities Act does not, in any way, prescribe any procedure for taking cognizance of an offence under the Act and its function is only restrictive.

Under section 7 of the Essential Commodities Act all offences for contravention of any order made u/s 3 are made punishable with imprisonment for a term which may extend to three years except in the case of orders made with reference to clause (h) or clause (i) of sub-section (2) of section 3 in which case the punishment prescribed is imprisonment for a term which may extend to one year only. Clauses (h) and (i) of sub-section (2) refer to collection of information or statistics with a view to regulating or prohibiting any matters referred to in other clauses and for requiring persons to produce for inspection such books, accounts and records relating to their business and to furnish other information relating thereto, as may be specified in the order. The offence in question does not fall within the orders issued under clauses (h) and (i) and, as such, the offence committed by the contravention of the Order becomes cognizable by the police, and that it could investigate the same under Chapter XIV of the Code of Criminal Procedure as it did in this particular case. The procedure followed by the Magistrate was not, therefore, in any way, vitiated. Apart from this, the irregularity, if any, is curable under 537 of the Code. No objection was raised in this matter at the initial stage. The lower appellate Court, was, therefore, not justified in setting aside the conviction of the respondent and remitting the case for fresh trial.

Shri M. L. Shrivastava, learned counsel for the respondent, drew our attention to the definition of a "dealer" in the Madhya Pradesh Foodgrains Dealers Licensing Order, where the term "dealer" is defined to mean "a person who is engaged or intends to engage in the business of purchase, sale or storage for sale of any one foodgrain in quantity of 10 quintals or more at any one time, or in quantity of 25 quintals or more at any time in respect of all foodgrains taken together, whether on one''s own account or in partnership etc. "From this definition it is clear that unless a person has 10 quintals or more of any one foodgrain or 25 quintals or more of all foodgrains taken together he cannot be held to be a "dealer" and, as such, u/s 3 of the Act such a person is not required to take any licence. It appears that the definition of "dealer" has undergone change from time to time. It was not brought to our notice as to what was the definition of "dealer" at the time the offence in question was committed. We are, therefore, not in a position to decide this question at this stage. As we are setting aside the order of the lower appellate Court and remitting the case to it for decision according to law, this question can be raised appropriately before that Court.

In the result, the State appeal is allowed. The judgment of the lower appellate Court setting aside the conviction of the respondent and remitting the case to the trial Magistrate is set aside and the case is remitted to the lower appellate Court for disposal of the appeal according to law.