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Harbhajansingh Vs. State of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 23 of 1977
Judge
Reported inAIR1978MP150
ActsEssential Commodities Act, 1955 - Sections 6A, 6B and 6C; Code of Criminal Procedure (CrPC) , 1974 - Sections 397 and 401
AppellantHarbhajansingh
RespondentState of Madhya Pradesh
Appellant AdvocateS.C. Datt and ;S.L. Kochar, Advs.
Respondent AdvocateS.L. Garg, Adv. General and ;M.V. Tamaskar, Govt. Adv.
Cases ReferredPublic Prosecutor (A.P.) v. L. Ramayya
Excerpt:
.....is authorised to appoint an appellate authority under section 6c, the legislature clearly indicated that such appellate authority must of necessity be a judicial authority......under section 6a of the act and. secondly, whether a revision would lie against the order of the judicial authority before the high court?'2. it appears that the collector proceeded against the petitioner and 11 others under section 6a of the essential commodities act, 1955 (hereinafter called the 'act'). he served a show cause notice under section 6b of the act and proposed to confiscate the wheat and trucks. after enquiry, the collector found the applicants to have contravened the provisions of the inter-zonal wheat and wheat products (movement control) order, 1973, and confiscated the wheat as well as the trucks. the petitioner and others preferred an appeal to the judicial authority, i.e. the district and sessions judge, khandwa, who dismissed the appeal of the petitioner and two.....
Judgment:

Shiv Dayal, C.J.

1. A Division Bench has framed the following question and referred it to us for answer :--

'Whether or not the Judicial Authority under Section 6C of the Essential Commodities Act acts as a persona designate while hearing appeals under Section 6A of the Act and. secondly, whether a revision would lie against the order of the Judicial Authority before the High Court?'

2. It appears that the Collector proceeded against the petitioner and 11 others under Section 6A of the Essential Commodities Act, 1955 (hereinafter called the 'Act'). He served a show cause notice under Section 6B of the Act and proposed to confiscate the wheat and trucks. After enquiry, the Collector found the applicants to have contravened the provisions of the Inter-Zonal Wheat and Wheat Products (Movement Control) Order, 1973, and confiscated the wheat as well as the trucks. The petitioner and others preferred an appeal to the Judicial Authority, i.e. the District and Sessions Judge, Khandwa, who dismissed the appeal of the petitioner and two others, but allowed the appeal of the other appellants.

3. Aggrieved by the order of the Judicial Authority, Harbhajansingh (revision-petitioner) filed this revision under the Code of Criminal Procedure. A preliminary question arose whether the Judicial Authority was persona designate and not a Court inferior to the High Court. In the latter case, this revision would be incompetent. In Sitaram v. State of M. P., 1975 Jab LJ 884, a Division Bench of this Court, to which the question had been expressly referred, took the view that a District and Sessions Judge, appointed as Judicial Authority under Section 6C(1) of the Act, acts as a persona designata so that his decisions are not revisable by the High Court. The remedy under Article 227 of the Constitution (as it then stood) was available.

4. In the present case, the revision-petitioner urged that Article 227 of the Constitution having been amended by the Constitution (42nd Amendment) Act, 1976, that remedy was not available to him and he could only invoke the jurisdiction of this Court under Article 226 of the Constitution. It was, however, urged on his behalf that the decision in Sitaram v. State of M. P., 1975 Jab LJ 884 (supra) required reconsideration. He urged, alternatively, that his Criminal Revision be converted into a writ petition under Article 226 of the Constitution. This application came up before the Division Bench which has referred the question, reproduced at the outset, for decision by a larger Bench.

5. Having regard to the scheme of Sections 6A, 6B and 6C of the Act, the policy of the law, becomes abundantly clear. Section 6A confers power on the Collector of the District, in Which the essential commodity is seized in pursuance of an order made under Section 3, to order confiscation of the essential commodity, any package, covering etc. and any animal, vehicle etc., if the is satisfied that there has been a contravention of the order. Patently enough, this power is penal in nature. Under Section 6B an opportunity of making a representation and also of being heard is provided. Now, the Legislature was conscious of the fact that while in its wisdom it was empowering the Collector to order such confiscation, his order would be penal in character and also that questions relating to rights and liabilities based on general law may be involved. It was, therefore, deemed lust and proper that the Collector's exercise of that power should be judicial and itshould be open to scrutiny by Judicial Court. Therefore, an appeal has been provided and the State Government has been enjoined to appoint a Judicial Authority to hear appeals from the Collector's order. In the setting of these; provisions, it must be said that the Judicial Authority, although to be appointed by the State Government, must necessarily be a Judicial Court in the hierarchy of Courts. 'Judicial Authority' is defined in Black's Law Dictionary as 'power and authority appertaining to the office of a Judge, jurisdiction, the official right to hear and determine question in controversy.' In 14 American Jurisprudence, Courts, Section 4, Page 248, it is stated :--

'While there is a well defined and generally recognised distinction between a Judge and a judicial tribunal and while it takes more than a presiding officer to constitute a Court, yet the Judge of a Court while presiding over it is by common courtesy called 'the Court' and the words 'Court' and 'judge' are frequently used in the statutes of various States as synonymous and convertible terms.'

6. Although the State Government has a discretion under Section 6C to appoint any Judicial Authority as appellate authority, it cannot be an authority other than a judicial authority. Again, the intention of the Legislature is clear that the judicial authority here refers to Judicial Court; otherwise an appeal would ordinarily lie to higher Revenue Authorities, such as, the Commissioner, from the order passed by the Collector. See, for instance, Sections 44 and 56 of the M. P. Land Revenue Code.

7. In Madhya Pradesh, District and Sessions Judge has been appointed Judicial Authority. He being a Court in the hierarchy of Courts, he acts as a Court and his jurisdiction is enlarged. Where by a statute matters are referred to the determination of a Court of record with no further provision the necessary implication is that the Court will determine the matters, as a Court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same. (Per Lord Parker in National Telephone Co. Ltd. v. Postmaster General, 1913 AC 546). It is simply the question of extending the jurisdiction of an existing Court of law, with all its incidents including a right of appeal to anew matter closely resembling in character those matters over which it has already jurisdiction as a Court of law. Per Lord Atkinson in National Telephone Co. Ltd. (supra).

8. In Adaikappa v. Ohandrasekhara, 74 Ind App 264 : AIR 1948 PC 12, Lord Simonds spoke for the Judicial Committee thus:--

'The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal,'

9. A Full Bench of the Andhra Pradesh High Court, in Public Prosecutor (A.P.) v. L. Ramayya, 1975 Cri LJ 144 (Andh Pra) (FB), also took the above view and the same view was taken by the Karnataka High Court in Vasundara Traders v. State of Karnataka, 1977 Cri LJ 1539, which overruled the earlier view of the Mysore High Court in State of Mysore v. Pandurang Parusappa Naik, 1971 Cri LJ 1355 (Mys). A contrary view was taken in Sitaram v. State of M. P., 1'975 Jab LJ 884 (supra). The question is now concluded by the decision of the Supreme Court in Thakur Das v. State of M. P. Cr. A. No. 109 of 1974, decided on October 14th, 1977 : (AIR 1978 SC 1), where it is laid down thus:--

'We are accordingly of the opinion that even though the State Government is authorised to appoint an appellate authority under Section 6C, the legislature clearly indicated that such appellate authority must of necessity be a judicial authority. Since under the Constitution the Courts being the repository of the judicial power and the officer presiding over the Court derives his designation from the nomenclature of the Court, even if the appointment is made by the designation of the judicial officer the appellate authority indicated is the Court over which he presides discharging functions under the relevant Code and placed in the hierarchy of Courts for the purposes of appeal and 'revision'. Viewed from this angle, the Sessions Judge, though appointed an appellate authority by the notification what the State Government did was to constitute an appellate authority in the Sessions Court over which the Sessions Judge presides.

The Sessions Court is constituted under the Code of Criminal Procedure and indisputably it is an inferior criminal Court in relation to High Court. Therefore, against the order made in exercise of powers conferred by Section 6C a revision application would lie to the High Court and the High Court would be entitled to entertain a revision application under Sections 435 and 439 of the Code of Criminal Procedure, 1898 which was in force at the relevant time and such revision application would be competent.'

Their Lordships broadly approved the decision in Public Prosecutor (A.P.) v. L. Ramayya, 1975 Cri LJ 144 (Andh Pra) (FB) (supra).

10. Our answer to the question is that a Judicial Authority under Section 6C of the Essential Commodities Act does not act as a persona designate while hearing appeals from orders under Section 6A of the Act, but acts as a Criminal Court inferior to the High Court. From the order of the Judicial Authority, a revision would lie under the Code of Criminal Procedure. Where the Judicial Authority is a Sessions Judge, a revision would lie to the High Court under Section 401 of the Code of Criminal Procedure, 1973 (Act No. 2 of) 1974).

11. This revision will now be placed before a Division Bench.


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