N.N. Sharma, J. - (1.) All these four cases are being disposed of by this common order as these arise out of the same fact.
(2.) It appears that the revisionists were sent up in cases Nos. 355 of 79 and 356 of 79 of police station Kotwali Fatehpur on 8 -9 -1979 to stand their trial under Ss. 3/7 of the Essential Commodities Act (Act No. 10 of 1955) crime Nos. 4 and 5 of 78 Kotwali, Fatehpur. Cognizance of the offence was taken by the Chief Judicial Magistrate on 12 -2 -1979. After adjournments dated 8 -7 -80 and 19 -8 -80 revisionists were charged by learned Magistrate on 28 -9 -8S. Pending this case it transpired that requisite sanction for prosecution was wanting. Sec. 11 of the aforesaid Act relating to sanction is extracted below: 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 Sec. 21 of the Indian Penal Code (45 of 1860). This Sec. was amended by UP Act No. IX of 1974 by which the District Magistrate or any other officer empowered by the State Government was to accord requisite sanction without which cognizance of the offence was barred. The sanction had not been received despite D. O. No. 577 of 80 sent by learned CJM on 19 -9 -80 to S. P. Fatehpur. Revisionists prayed on 19 -8 -80 and 21 -10 -80 that they must be discharged for want of sanction. It was on 21 -10 -80 that the Chief Judicial Magistrate observed that the proceedings are nullity but could proceed on a receipt of sanction and fresh charge -sheet dated 21 -10 -80 and so application of revisionists was rejected giving rise to these cases. I have heard learned Counsel for parties and perused the record.
(3.) The contention of the learned Counsel for the revisionists before me is that the aforesaid proceedings are liable to be quashed. This contention is upheld for following reasons. Magistrate takes cognizance of an offence on a police report under Sec. 190 -B of the Code of Criminal Procedure. Police report is submitted under Sec. 173 of the Code of Criminal Procedure. After the initiation of the proceedings no fresh police report is contemplated by law. It is not open to the Magistrate to proceed on a fresh additional police report submitted under Sec. 173(8) of the Code of Criminal Procedure for taking cognizance of an offence which had already been noticed judicially by the learned Magistrate concerned. It was observed in Jiwan Shanker Sharma v/s. State 1979 A.Cr.R. 201: After investigation a charge sheet was submitted in the court of Sessions Judge. The Sessions Judge took cognizance and thereafter transferred the case to the Additional Sessions Judge. After transfer of case to the Additional Sessions Judge and after statements of ten witnesses had been recorded by the trial court an application was moved on behalf of prosecution seeking that they may be permitted to submit an additional report under the provisions of Sec. 173(8), Code of Criminal Procedure. This application was allowed by the trial court. It was held: The words 'after a report under Sub -section (2) has been forwarded to the Magistrate' show that the officer in -charge of a police station is empowered to investigate even after the report has been forwarded to the Magistrate. But if the provisions of sub -sections (2), (3) and (8) are read together it imply that even the powers of the investigation by the incharge of police station have to be excercised before cognizance is taken. It is also significant that cognizance has to be taken under the provisions of Sec. 190, Code of Criminal Procedure and the Magistrate is given power to take cognizance upon a police report which means the additional report, if any, submitted under sub -sections (3) and (8). Sub -section (8) does not empower the investigating officer to submit an additional report after the cognizance had been taken. The order of the Special Judge was, therefore, clearly without jurisdiction.;