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Ram Prasad Sharma and Sons. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1985CriLJ442; 1984()WLN405
AppellantRam Prasad Sharma and Sons.
RespondentState of Rajasthan
Cases ReferredUmed v. Raj Singh
Excerpt:
essential commodities act, 1955 - amendment of 1981--sections 11 & 12aa--no inconsistency between 2 provisions--section 11 is general provision and section 12aa is a particular provision--section 12aa be construed so that it leas to salutary effect on anti-social element--satisfaction of court in respect of prima facie case and against accused--held, provisions of section 12aa are mandatory and have over riding effect.;there is no inconsistency between the provisions of section 11 and section 12aa. section 11 is a general provision, and section 12aa is a particular provision for a temporary period for giving relief to the persons who are suffering at the hands of profiteers, black-marketeers and hoarders. for this purpose also, it is necessary that sec 12aa should be construed in its.....orderdinkar lal mehta, j.1.the supply officer, dholpur lodged a complaint on 21st feb 1983, under section 3/7 of the essential commodities act. the said complaint was lodged before the special court constituted under the amended act no. 18 of 1981, by which special courts were constituted. the petitioner preferred an application before the special court on 28th feb. 1983 and submitted that the special court is not competent to take cognizance especially in the light of the provisions of section 12aa(l)(e). sub-section (e) reads as under :(e) a special court, upon a perusal of police report of the facts constituting an offence under this act take cognizance of that offence without the accused being committed to it for trial ;1a. the contention of the petitioner before the court below was.....
Judgment:
ORDER

Dinkar Lal Mehta, J.

1.The Supply Officer, Dholpur lodged a complaint on 21st Feb 1983, Under Section 3/7 of the Essential Commodities Act. The said complaint was lodged before the Special Court constituted under the amended Act No. 18 of 1981, by which Special Courts were constituted. The petitioner preferred an application before the Special Court on 28th Feb. 1983 and submitted that the Special Court is not competent to take cognizance especially in the light of the provisions of Section 12AA(l)(e). Sub-section (e) reads as under :

(e) a Special Court, upon a perusal of police report of the facts constituting an offence under this Act take cognizance of that offence without the accused being committed to it for trial ;

1A. The contention of the petitioner before the Court below was that no complaint can be entertained as provided Under Section 11 after the amended Act No. 18 of 1981. The learned Addl. Session Judge (Special Court), Dholpur, vide his order dated 22nd June, 1984, held that he is competent to take cognizance Under Section 11 of the Essential Commodities Act and Section 12-AA(l)(e), as amended by Act No. 18 of 1981, will not take away the jurisdiction vested in the Court Under Section 11 of the Act.

2. I have heard the learned Counsel for the petitioner S/Shri N.L. Tibrewal and R. Section Rathor and the learned Public Prosecutors S/Shri M.I. Khan and G.C. Chatterjee.

3. The question involved in the instant case is only a question of law and so, it was agreed upon between the parties that this case should be finally disposed of at the admission stage. Before dealing with the rival contentions of the parties, I would like to reproduce Sections 11 and 12AA as under :

11. 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 I.P.C. (45 of 1860).

12AA. Offences triable by Special Courts. (1) Notwithstanding anything contained in the Code :

(a) all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court ;

(b) where a person is accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under Sub-section (2) or Sub-section (2-A) of Section 167 of the Code, such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate :

Provided that where such Magistrate considers -

(i) when such person is forwarded to him as aforesaid ; or

(ii) upon or at any time before the expiry of the period of detention authorised by him ; that the detention of such person is unnecessary, he may, if he is satisfied that the case falls under the proviso to Section 8, order the release of such person on bail and if he is not so satisfied, he shall order such person to be forwarded to the Special Court having jurisdiction ;

(c) the Special Court may, subject to the provisions of Clause (d) of this sub-section, exercise, in relation to the person forwarded to it under Clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise Under Section 167 of the Code in relation to an accused person in such case who has been forwarded to him under that section ;

(d) save as aforesaid no person accused of or suspected of the commission of, an offence under this Act shall be released on bail by any Court other than a Special Court or the High Court ;

Provided that a Special Court shall not release any such person on bail-

(i) without giving the prosecution an opportunity to oppose the application for such release unless the Special Court, for reasons to be recorded in writing, is of opinion that it is not practicable to give such opportunity ; and

(ii) where the prosecution opposes the application if the Special Court is satisfied that there appear reasonable grounds for believing that he has been guilty of the offence concerned ;

Provided further that the Special Court may direct that any such person may be released on bail if he is under the age of sixteen years or is a woman or is sick or infirm person, or if the Special Court is satisfied that it is just and proper so to do for any other special reason to be recorded in writing ;

(e) a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act take cognizance of that offence without the accused being committed to it for trial ;

(f) all offences under this Act shall be tried in a summary way and the provisions of Sections 262 to 265 (both inclusive) of the Code shall, as far as may be, apply to such trial ;

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Special Court to pass a sentence of imprisonment of a term not exceeding two years.(2) When trying an offence under this Act a Special Court may also try an offence other than an offence under this Act, with which the accused may, under the Code, be charged at the same trial ;

Provided that such other offence is, under any law for the time being in force, triable in a summary way ;

Provided further that in the case of any conviction for such other offence in such trial, it shall not be lawful for the Special Court to pass sentence of imprisonment for a term exceeding the term provided for conviction in a summary trial under such other law.

(3) A Special Court may, with a view to obtaining the evidence of any person suspected to have been directly or indirectly concerned in, or privy to, an offence under this Act, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof and any pardon so tendered shall, for the purposes of Section 308 of the Code, be deemed to have been tendered Under Section 307 thereof.

(4) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail Under Section 439 of the Code and the High Court may exercise such powers including the power Under Clause (b) of Sub-Section (1) of that section as if the reference to 'Magistrate' in that section included also a reference to a 'Special Court' constituted Under Section 12-A.

4. It will not be out of place to refer the object for amending the Act vide Amending Act No. 18 of 1981. The Essential Commodities Act, 1955 provides for regulation of production, supply and pricing of essential commodities. This Act has been amended from time to time. In spite of amendments made to the principal Act in 1976, experience has shown that some of the existing provisions of the Act have not been proved adequate and effective for expeditious disposal of the cases as well as for supply of essential commodities at fair price and curbing the hoarding and black-marketing of, and profiteering in, such commodities. It was also felt they a number of cases were pending and the price rise is continuing unabated. For dealing more effectively with persons indulging in such anti-social activities and the evil of vicious inflationary prices, it was considered necessary to make certain special provisions by way of amendments to the Essential Commodities Act, 1955 for a period of five years. It was felt by the Legislature from time to time that deterrent measures should be adopted to check the anti-social activities of hoarding, black-marketing and profiteering. With this intention in mind, the Legislature has amended the Act by the Amending Act No. 18 of 1981 and Section 12AA has been inserted with a non obstente clause, 'Notwithstanding anything contained in the Code', as quoted in extenso in the previous paragraphs.

5. Mr. Tibrewal, learned Counsel for the petitioner submits that Section 12AA overrides the provisions of Section 11 and within a temporary period of five years no cognizance can be taken by the Court under the Act of 1955, as amended by the Amending Act No. 18 of 1981. The learned Counsel submits that ordinary Courts have been deprived to take cognizance of the offence as Special Courts have been constituted and, for this reason non obstante clause will prevail over Section 11. It should also be considered that Section 11 will remain suspended for a period of five years. M/s. Khari and Chatterjee for the State have vehemently opposed the petition filed by the petitioner and submitted that non obstente clause does not mean and should not be interpreted that it wipes away the provisions of Section 11. They submit that harmonious construction should be given to both the provisions of law and, for this reason the Court below was justified in taking cognizance on the report filed by the Supply Officer.

6. As has been stated earlier, the Act of 1955 has been amended from time to time with the object of checking black-marketing and profiteering. Before the insertion of the provisions of Section 12AA vide Amending Act No. 18 of 1981, Section 10A was inserted. Section 10A provides that, 'Notwithstanding anything contained in the Code of Criminal Procedure, 1973 every offence punishable under this Act shall be cognizable.' The offence was bailable prior to the year 1981. Every offence has been made non-bailable vide the Amending Act of 1981. Thus, the intention of the Legislature is that the authority vested with the power to investigate into the commission of the offence should arrest the person and should produce before the Court. Furthermore, Section 12AA(l)(d) provides that save as aforesaid no person accused of or suspected of the commission of an offence under this Act shall be released on bail by any Court other than a Special Court or the High Court ; provided that a Special Court shall not release any such person on bail -

(i) without giving the prosecution an opportunity to oppose the application for such release unless the Special Court, for reasons to be recorded in writing, is of opinion that it is not practicable to give such opportunity ; and (ii) where the prosecution opposes the application, if the Special Court is satisfied that there appear reasonable grounds for believing that he has been guilty of the offence concerned. This law has been amended and the ordinary rule of grant of bail in exercise of the power confered Under Sections 437 and 439, Cr.P.C. has been withdrawn from Lower Court by the Amending Act No. 18 of 1981, The Special Court can only release the accused on bail if the conditions provided in Clause (d) are fulfilled. Thus, now, under the Amending Act 18 of 1981, the position is that refusal of bail is a rule and grant of bail an exception and it can only be granted if the conditions provided in proviso of Clause (d) of Section 12AA( 1) are fulfilled. It is also necessary to consider the provisions of the Act of 1955. Under Section 7 penalties are imposed by the Court if any person contravenes any order made Under Section 3 he shall be punishable (i) in the case of an order made with reference to Clause (h) or Clause (i) of Sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and (ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall 'also be liable to fine. Thus, the offence under which the maximum punishment is one year,may be of a technical nature, has been made non-bailable under Clause (d) of Section 12AA(1). As stated above, Clause(ii) of Section 7 further provides that in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine. Thus, under this Act, the provision for minimum sentence is also provided Under Section 7.

7. Before considering the rival contentions of the parties, it is necessary to consider the provisions of the Code of Criminal Procedure, 1973. Section 200 relates to the filing of complaint and process is issued Under Section 204. Section 204 reads as under :

204. Issue of process :(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be -

(1) a summons-case, he shall issue his summons for a attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub-section (1) shall be accompanied by a copy of such complaint.

(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this, section shall be deemed to affect the provisions of Section 87.

Hence, according to Section 204, if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be, a summons case, he shall issued his summons for the attendance of the accused.

8. Now, the question further arises for consideration is whether the offences which are punishable Under Section 7(b)(i) and the maximum punishment has been provided Under Section 7(a) is one year, are all summons cases. So, if the process is issued in exercise of the power Under Section 204, Cr.P.C. then the Court cannot directly issue warrant in exercise of power Under Section 204(a). The position will be like this that if the Supply Officer files a complaint or a report then the Court cannot issue a process at once other than the mode provided Under Section 204(a). The accused cannot be arrested by the Court and cannot be sent behind the bars and there will be no necessity of moving a bail application in such cases, as the Court is not competent to issue a process in any way other than the mode provided Under Section 204(a). The provisions of Section 12AA(1) Clause (d) will become inoperative if complaint or report is allowed to be filed.

9. Now, the other relevant provision is Section 87, Cr.P.C. Section 87 provides that a Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest (a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons ; or (b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure. Section 87 will not apply so far as issue of warrant on the conditions laid down in Clause (a) and (b), above, are concerned. For this reason, the Court shall not be competent to issue warrant at the initial stage.

10. So far as Section 437, Cr.P.C. is concerned, it does not relate to the issuance of the process. It comes into operation when the accused is brought before the Court, or appears before the Court. It comes into operation also when the accused has been arrested by the police authorities. Under Section 12AA (4), provision has been made that nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail Under Section 439 of the Code, and the High Court may exercise such powers including the power under Clause (b) of Sub-section (l) of that section as if the reference to 'Magistrate' in that section included also a reference to a 'Special Court' constituted Under Section 12-A. Thus, the powers 'of the Courts below Under Sections 437 and 439. Cr.P.C. have been limited by the provisions of Clause (d) and Clause (d) overrides the provisions of Sections 437 and 439, Cr.P.C. to a great extent. So the position will be that the bail application has be moved by the accused under Clause (d) of Section 12AA(1) and if the requirement of Section 12AA(l)(d) are fulfilled only then the Special Court can take the bail. Special Court has not been entrusted with the power to issue process under Clause (d). It has not been conferred power also to release a person who appears before the Court, under Clause (d). The powers Under Section 439, Cr.P.C., 1973 will remain intact so far as this Court is concerned, but so far as the Court below is concerned, the powers have been taken away by the provisions of Section 12AA( l)(d). Thus the position will be that if the submission of the State is accepted, then a person may appear before the Court, or may be summoned ; but in a non-bailable offence he cannot be arrested by the Court at the initial stage and this takes me to conclusion that Clause (e) of Section 12AA(1) is having overriding effect on Section 11 of the Act of 1955.

11. Section 11 provides that 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 I.P.C. The word 'Court' has been used in Section 11, but the words 'Special Court' have not been used in Section 11. Apart from that, a report Under Section 11 can be submitted by any person who is a public servant as defined Under Section 21, I.P.C This power vested in the Court has been taken away temporarily for a period of five years, looking to the emergent situation which is prevailing in the society to check black-marketing and profiteering. The Act has been amended vide the Amending Act No. 18 of 1981 and Special Courts have been created. The Special Courts have been created with the object that the matter may not linger on for a pretty long time and, furthermore the cases should be decided by a Court owithin a period of one year and the Special Court is presided over by a District Judge or an Addl. District Judge or a person who is eligible for appointment as a High Court Judge. The Special Courts have been constituted with the object that the person having a wide knowledge of law and has been working in the judiciary should be given the charge of administration of justice. For this purpose, the Court does not include the Court of the Magistrate and Section 12AA, thus, overrides the word 'Court' as used in Section 11 of the Act of 1955. The Legislature in its wisdom has again in Clause (e) of Section 12AA(1) provided that a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act, take cognizance of that offence without the accused being committed to it for trial. The intention of the Legislature is very clear that the case should be investigated by the police authorities at the initial stage, but no person should be deprived of a valuable right of getting a fair investigation. If any public servant files a complaint without any investigation into the matter, then it is depriving the person who has a valuable right of getting the matter examined. The Legislature at the relevant time in 1955 considered in its wisdom that the matter should be heard by the Court of Magistrate and it was also considered that the offence should not be made non-bailable. But, now, looking to the situation prevailing in the society where black-money is ruling over the white money, where the persons are not getting the necessities of life in the market and where hoarding and black-marketing is going on unabated and the authorities could not check it, the Legislature in its wisdom considered it proper that the authorities should be given wide powers, as well as protection should be given to all the citizens that the matters are reported to the Court after investigation. It obviously meant a fair investigation and, thereafter the Legislature wanted that there should be a salutary effect on the persons who are dealing in at the initial stage and even, if they are suspected for the commission of the offence, or there is a prima facie case against them, they should not be bailed out and, therefore, the provisions relating to the bail have been taken away under Clause (d) of Section 12AA(1). Thus, the scheme of the Amending Act No. 18 of 1981 is that for a period of five years, the other provisions should remain suspended and every act should be done in accordance with the provisions of Section 12AA as far as practicable. If mode has been provided Under Section 12AA, then the assistance of the other provisions of law can be taken and the procedure can be followed. But where the provisions of Section 12AA are there, they are mandatory in nature and they are having overriding effect on the other provisions of the Act.

12. Mr. Khan, counsel for the State, submitted that a clause beginning with 'notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force', is sometimes appended to a section in the beginning, with a view to give the enacting part of the section in case of conflict an overriding effect over the provision or Act mentioned in the non obstante clause. I agree with the view submitted by Mr. Khan. It is equivalent to saying that in spite of the provision or Act mentioned in the non obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non obstante clause will not be an impediment for the operation of the enactment. The phrase 'notwithstanding anything' is used in contradistinction to phrase 'subject to' the latter conveying the idea of a provision yielding place to another provision or other provisions to which it is made subject. Ordinarily, there is close approximation between the non obstante clause and the enacting part of the section and the non obstante clause may throw some light as to the scope and ambit of the enacting part in case of its ambiguity, but when the enacting part is clear its scope cannot be cut down by resort to non obstante clause. In the instant case, non obstante clause has been inserted by Section 12 AA. In such a case, the operation of a particular section may have the effect of suspension of the general provisions which were there in existence and different mode has been provided Under Section 12AA.

13. The learned Counsel for the non- petitioners have referred the case of Satya Narain v. State of Bihar : 1980CriLJ227 . This case has no relevancy in the matter as it does not deal with the provisions of the Amending Act No. 18 of 1981. It is an admitted position that the police officer is a public servant Under Section 21 ; but the question before their Lordships of the Supreme Court was whether a report made by a public officer Under Section 11 includes a report made by the police officer. Their Lordships have held that the police officer is a public servant Under Section 21 of the I.P.C. and the report used in ection 11 is wide enough which include the police report also. Thus, this case has no relevancy.

14. Mr. Khan has cited before me the case of Pravin Chandra Mody v. State of Andhra Pradesh : 1965CriLJ250 . This case has been referred by their Lordships in the case of Satya Narain v. State of Bihar (supra) and this case also has no relevancy so far as the present case is concerned. In both the cases, the position was that a report submitted by a police officer should be considered as a report Under Section 11, or not. Their Lordships have held that the report submitted by a police officer falls within purview of the report submitted by the public servant Under Section 11.

15. Mr. Khan, counsel for the State, has submitted before me the case of Umed v. Raj Singh : [1975]1SCR918 . It. was submitted that in arriving at a construction so as to suppress the mischief and advance the remedy the Court cannot ignore the plain natural meaning of the words of disregad the context and the collection in which they occur. In ascertaining the true intention of the Legislature the Court must not only look at the words used by the Legislature but also have regard to the context and the setting in which they occur. I am ascertaining true intention of the Legislature and am also looking to the words used by the Legislature in literal form. I have also taken into consideration contextual setting in which they are used. The context and collocation of the words leads me to the conclusion that the provisions of Section 12AA(l)(e) override the provision of Section 11 for a temporary period of five years vide the Amending Act No. 18 of 1981.

16. The Essential Commodities Act is a legislation to check the black-marketing, profiteering and hoarding. The intention of the Legislature is that the persons who are suspected of the commission of the offence should be arrested and ordinarily dealt with. This is a welfare legislation for the benefit of the society and to check black-marketing, profiteering and hoarding. It is necessary that construction must be taken in a way which may take up and which may have salutary effect on checking of black-marketing, hoarding and profiteering. In the instant legislation there is no inconsistency between the provision of Section 11 and Section 12AA. Section 11 is a general provision, and Section 12AA is a particular provision for a temporary period for giving relief to the persons who are suffering at the hands of profiteers, black-marketeers and hoarders. For this purpose also, it is necessary that Section 12AA should be construed in its right earnest which may lead to a salutary effect on the anti-social elements, and it may check resentation of complaint without due investigation. It will have double effect that there will be a fair investigation as expected from the police officers in the ordinary course and they will submit the detail of the evidence, including the evidence if so recorded under Section 161 as well as with the relevant documents. The, Court will have an opportunity to satisfy itself whether a prima facie case is made out on the face of the evidence so collected and, thereafter the Court will exercise power under Clause (d). If a complaint is filed by a public officer Under Section 11, the Court will not have to satisfy whether a prima facie case is made out against an accused or a suspected person or riot. This also leads me to consider that the provisions of Section 12AA(l)(e) are mandatory in nature and are having overriding effect over Section 11 to achieve the object laid down in the Amending Act No. 18 of 1981.

17. For the reasons mentioned above, I hold that the provisions of Section 12AA(l)(e) are mandatory in nature and are having overriding effect 1 accept the revision petition, set aside the order passed by the learned AddL Sessions Judge, Bharatpur dated 26th June, 1984. I further direct that the complaint/report filed by the Supply Officer should be returned to him for lodging the FIR at the police station concerned and the police agency should investigate into the matter and should take necessary steps according to law.


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