Suraj Narain Panjiar and Others vs State of Bihar

D.P. Sinha, J.—The petitioners are being prosecuted on the allegation that they had committed an offence u/s 7 of the Essential Commodities Act (hereinafter referred to as the Act), because they were transporting rice without obtaining necessary permit from the authorities concerned and without having paid the levy.

It has been contended that the entire proceeding against the petitioners, pending before Shri J. Ram, Munsif Magistrate Supaul, is liable to be quashed, inasmuch as the cognizance of the alleged offence taken by the Sub-divisional Magistrate was without jurisdiction on account of the fact that as laid down in Section 11 of the Act, no court shall take cognizance of any offence punishable under the 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, whereas the reports submitted by the police on the basis of which the Subdivisional Magistrate has taken cognizance clearly stated that after investigation the police had come to the conclusion that the allegations made against the petitioner were false and that no ease for prosecution has been made out.

The material facts relating to the case are these on the 13th of February, 1973 Md. Zahir Alam, Supply Inspector made a report to the Block Development Officer, Raghopur stating that at about 1-45 P.M. on that date he found that 21 bags of rice were loaded inside a bus and 22 bags of rice on the roof of the bus, bearing registration number BRF 3803, near Semrahi Bazar chowk. The bus was said to be proceeding to Saharse from Pratapganj on inquiry made by the Supply Inspector from the driver, Khalasi and conductor of the bus as to the ownership of the rice, they said that the rice had been loaded at Pratapganj. It further transpired that 21 bags of rice had been kept in the bus at 12-30 P.M. on the same day in front of the shop of one Sheo Prasad Sah and the remaining 22 bags were loaded on the bus when the staff of the bus had gone to take meal in the Bazar. None of them could give any clue as to whom the said 43 bags of rice belonged. It was suspected that the owner of the bags of rice had not paid the levy and that he had committed a breach of an order made u/s 3 of the Act and were, therefore, liable to be prosecuted and punished u/s 7 of the Act. The Block Development Officer forwarded that report to the Bhojpur Police who instituted a case u/s 7 of the Act. After investigation, the police submitted final form, saying that the allegations were false and that no case had been made out against the petitioner.

When the matter was placed before the Sub-divisional Magistrate, he persued not only the final form submitted by the police, but also the original report made by the Supply Inspector and on the basis thereof, he came to the conclusion that a prima facie case u/s 7 of the Act had been made out against the petitioner and, therefore, disagreeing with the report of the police he took cognizance of the offence and transferred the case to the file of the Munsif Magistrate. At the stage of the framing of the charge, the petitioners filed an objection contending that in view of the provisions of Section 11 of the Act, the cognizance taken by the Subdivisional Magistrate was without jurisdiction and that, therefore, no charge should be framed against him.

The question for consideration is whether the cognizance taken by the Sub-divisional Magistrate was without jurisdiction. This question of law does not present any difficulty in view of the express provision of Section 11 of the Act. The said section clearly provides that no court shall take cognizance of any offence punishable under the Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined u/s 21 of the Indian Penal Code. The report which had been made to the Sub-divisional Magistrate was the final form submitted by the police. There can be no doubt that it was a report of a public servant within the meaning of Section 21 of the Indian Penal Code, but it is not every report of a police officer which is postulated by the said provisions. The report in writing must state the facts constituting that an offence punishable under the Act has been committed by the person concerned. This provision appears to have been advisably made in the Act to prevent and to put a check on frivolous prosecutions. It is implied that the public servant concerned on whose report cognizance may be taken will satisfy himself that the allegations are substantially true prima fade before he makes the report for the prosecution of the person concerned in this case the first information report for the prosecution of the person concerned lodged by the Supply inspector through the Block Development Officer had been duly enquired into by the police and as a result of their investigation the police had come to the conclusion that the allegations were not true and that no prima facie case had been made out. In the circumstances it is quite manifest that the report of the police was not such report as could provide the foundation for taking up of cognizance by the Sub-divisional Magistrate of an offence u/s 7 of the Act against the petitioner.

There is no substance in the contention put forth on behalf of the State that the Sub-divisional Magistrate was entitled to take cognizance on the basis of the report of the Supply Inspector, as that was not a report made to the Sub-divisional Magistrate who was competent to take cognizance of an offence under the Act on the basis of such a report. There is little difficulty in holding that the first information report of the Supply Inspector is not a report contemplated u/s 11 of the Act.

The legal position as explained above is so clear and unambiguous that it is not necessary to support the same by referring to any decision. All the same reference may be made to the case of G.R. No. 1136 Of 1967 Patan Lal Sultania and several others including that of Jaigovind Prasad v. The State of Bihar reported in 1968 P.L.J. R. 36. The fact of the case against Jaigovind Prasad in Criminal Revision No. 1136 of 1967 at page 51 on that report are almost exactly the same as that of this case. In that case also the first information report bad been lodged by the Supply Inspector concerned. After investigation the police found no prima facie case and submitted a report and the final form to that effect. All the same, the Subdivisional Magistrate took cognizance of an offence under Sections 7 and 9 of the Act with reference to the first information report of the Supply Inspector. It was held that the Sub-divisional Magistrate appeared to have proceeded u/s 191 of the Code of Criminal Procedure which was not applicable to a prosecution under the Act because it was governed by the special provision provided in Section 11 of the Act. It was further pointed out that unless there is a report by a public servant who is satisfied that there is a prima facie case of contravention of any of the rules or orders issued under the Act, no Magistrate could take cognizance of the offence and prosecution could not be launched in such a situation. The important fact to notice in the above decision which is that of a Division Bench of this Court is that it has been clearly held that no cognizance could be taken on the basis of the first information report which had been made to the police and not to the Magistrate empowered to take cognizance.

In view of the above findings the proceeding against the peditioner has got to be quashed as the cognizance taken by the Subdivisional Magistrate was without jurisdiction being against the express provision of Section 11 of the Act. The Criminal Proceeding in question is accordingly hereby quashed.