1. This appeal has been preferred by the State Govt. against the judgment dated the 12th of February, 1962 passed by the Magistrate First Class Morena, whereby he acquitted the present respondent Baital of an offence under Section 7 of the Essential Commodities Act, 1955 read with Clause 3(c) of the M. P. Food Grains (Restriction on Border Movement) Order 1958
2. The case for the prosecution was that the present respondent was on the 20th April, 1960 at about 5 P. M. found carrying 3 bags of wheat in a bullock-cart from the border of Madhya Pradesh to a place called Gholpura in Rajasthan.
3. The trial Court held that the evidence on record established the guilt of the accused for contravention of Clause 3(c) of the aforesaid Order, which was made punishable under Section 7 of the Essential Commodities Act, 1955. It, however, acquitted the accused on the sole ground that the police had, instead of submitting 'a report in writing of the facts constituting such offence' as required by Section 11 of the Essential Commodities Act, 1955, submitted a regular charge-sheet under Section 173 of the Code ofCriminal Procedure The learned Magistrate agreeing with the decision of the Calcutta High Court in A.P. Misra v. The Stale, ATR 1958 Cal 612 held that submission of a charge-sheet under Section 173 of the Code of Criminal Procedure could not be taken to be 'a report in writing' as required under Section 11 of the Essential Commodities Act 1955. I find that the decision relied on by the learned trial Judge was dissented from in the same High Court in Nanak Raj v. State, 1961 (1) Cri LJ 644 (Cal) wherein it was held that a police report under Section 173 Cr. P. C. or the charge sheet, as it is popularly called, can be classed as 'a report of the facts constituting the offence made by a public servant under Section 11 of the Essential Commodities Act' and cognizance can, therefore, be taken on the basis of such a charge-sheet.
It appears that a charge-sheet by a police officer to the Magistrate giving facts constituting the offence committed was held by the Bombay High Court in Sumatibai v. Emperor, AIR 1944 Bom 125 as sufficient compliance with the provisions of Section 11 of the Essential Supplies (Temporary Powers) Act. The language of Section 11 in the two enactments being identical in terms. I am of the opinion that the interpretation placed thereon by the Bombay High Court, and in a later case by the Calcutta High Court itself as shown above tinder the Essential Commodities Act, should be accepted as correct. Section 11 of the Essential Supplies (Temporary Powers) Act came up for consideration before their Lordships of the Supreme Court in Bhagwati Saran v. State of U. P., AIR 1961 SC 928 Their Lordships observed that the purpose of the provisions of Section 11 was 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.' Now it is incontestable that the police officer who submitted the charge-sheet in this case is a public servant. The charge-sheet is always in writing, and it is not disputed before us that it contains a statement of all the facts necessary to constitute the offence.
4. We are, therefore, of the opinion that the charge-sheet in the present case substantially complies with the requirements of Section 11 of the Essential Commodities Act, and the mere fact that it was submitted on the form prescribed for a police challan cannot make any difference. In the result we would set aside the order of acquittal passed by the learned Magistrate in this case.
5. It has been held by a Division Bench of this Court in Sardar Khan v. State, 1963 Jab LJ 331: (AIR 1963 Madh Pra 337) that the words 'a police report' as used in Section 251A of the Code of Criminal Procedure mean the reports made under Section 173 Cr. P C. that is to say reports of cognizable offences or non-cognizable offences with regard to which there had been a direction by a Magistrate to investigate, made after an investigation under Chapter XIV of the Code. The charge sheet in the present case cannot, therefore, be deemed to be apolice report for the purposes of Section 251-A of the Code of Criminal Procedure. Such a case would have to be tried according to the procedure laid down in Section 252 onwards. In the present case the learned Magistrate framed a charge against the accused on the basis of the challan, and the papers submitted by the police along with it. He, therefore, followed the procedure laid down in Section 251-A of the Code. Where a case, which ought to have been tried in accordance with the provisions of Section 252 onwards, is wrongly tried as a case instituted on a police report under Section 251-A of the Code the trial would, as was held in 1963 Jab LJ 331: (AIR 1963 Madh Pra 337) (supra) be vitiated.
The question, therefore, which arises before us is whether we should at this distance of time, order a re-trial in the present case. We find that the accused in this case was, on the date of offence, a boy of 11 or 12 years. He had already faced one trial which, for no fault of his, was not held in accordance with law. By a Notification dated 29-10-60 the provisions of Clause 3 of the M.P. Food Grains (Restriction on Border Movement) Order, 1958 were amended, so as to fix the limit of food grains which could be moved from one place to another within a border area for domestic consumption at 10 maunds. Although the act of the accused would be governed by the law which obtained at the time of its commission, we can take this subsequent event into account in order to determine whether a retrial should be ordered at this stage. We are distinctly of the opinion that it would be unfair to put the respondent to the harassment of a fresh trial for doing an act which, though it was an offence at the time of its commission is, in view of the subsequent change in the law. no longer of any public importance.
6. We would, therefore, allow this appeal; but for the reasons aforesaid we decline to order a re-trial of the respondent.
A.H. Khan, J.
7. I agree.