1. This is a reference made by the learned Sessions Judge of Sultanpur.
2. On a report dated the 20th August, 1955, submitted by the Station Officer, Kotwali, Sultanpur, a charge has been framed against Bhagwat Saran and Srimati Sushila Devi under Section 7 of the Essential Supplies (Temporary Powers) Act, 1946 read with Section 11 B (3) of the Iron and Steel (Control of Production and Distribution) Order, 1941. The allegation is that they sold iron and steel goods at a price higher than the controlled price.
3. The accused went up in revision against the order framing the charge to the Sessions Judge and raised two points. The first point was that the learned Magistrate could not have taken cognizance of the offence alleged as the report on the basis of which cognizance was taken did not contain sufficient materials as required by Section 11 of the Essential Supplies Act. The second point was that no maximum price having been fixed, there was no question of the accused having sold iron and steel at a price higher than the controlled price.
4. The first contention found favour with the learned Sessions Judge but the second did not. In respect of the second he found that the maximum price had been fixed by a notification published in the Gazette of India. On the basis of the first contention, however, he has recommended that the charge framed against the applicants be quashed and that they be discharged.
5. When this reference was argued before me, the learned counsel who appeared in support of it reiterated the first contention which found favour with the Sessions Judge. He did not urge the second contention, but instead urged another contention. That was that Section 11 B (3) of the Iron and Steel (Control of Production and Distribution) Order, 1941, was ultra vires and even if the accused are held to have sold the iron and steel at a price higher than that notified under that provision, they cannot be held to have committed any offence. In support of this new contention, the learned counsel placed reliance on a Full Bench case of the High Court of Madhya Pradesh reported in State v. Haidarali : AIR1957MP179 .
6. Now so far as the first contention is concerned, it is true that the report which the Station Officer submitted did not contain the full particulars as it ought to have contained, but on account of that defect, I think it cannot be maintained that the cognizance taken by the learned Magistrate on the basis of that report was illegal or that the proceedings started against the accused stand vitiated.
In this connection we have to bear in mind the observations made by their Lordships of the Supreme Court in the case of H. N. Rishbud v. State of Delhi, reported in : 1955CriLJ526 . There it was laid down in connection with Section 190, Cr. P. C. which is in almost identical terms with Section 11 of the Essential Supplies (Temporary Powers) Act, 1946:
'No doubt a police report which results from an investigation is provided in Section 190, Cr. P. C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance, Section 190, Cr. P. C. is one out of a group of Sections under the heading 'Conditions requisite for initiation of proceedings.' The language of this Section is in marked contrast with that of the other Sections of the group under the same heading, i.e., Sections 193 and 195 to 199. These latter Sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, Clauses (a), (b) and (c) of Section 190 (1) are conditions requisite for taking of cognizance it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity.'
In view of these observations, I think it is not possible to accept the contention of the accused that because the police report submitted in this case was not as detailed as it could have been, the cognizance taken by the learned Magistrate was a nullity and the proceedings must be quashed on that account. The first contention which appealed to the Sessions Judge thus becomes unacceptable.
7. The second contention, however, raises an important point of general importance on which there does not appear to be any decision of this Court. The point is important enough, in my opinion, for being decided by a Division Bench. I, therefore, direct that the case be placed before the Hon'ble the Chief Justice for constituting a larger Bench for the consideration of the question whether Section 11 B (3) of the Iron and Steel (Control of Production and Distribution) Order, 1941, is ultra vires.