- (1.) B. K. Rathi, J. Heard Sri Manish Tiwary, learned Counsel for the petitioner, Sri B. K. Tripathi, learned Counsel for the opposite party No. 2 and the A. G. A. for opposite party No. 1.
(2.) A request has been made in this petition under Section 482, Cr. P. C. to set aside the order dated 7-8- 99 passed by the Special Judge, Azamgarh in Case Crime No. 12 of 1999 initiated on the application of opposite party No. 2. The facts giving rise to this applica tion are that opposite party No. 2 moved an application under Section 156 (3), Cr. P. C. before the Special Judge, Azam garh, who directed the police to register the case under Section 3/7, E. C. Act against the petitioner and to investigate. In brief it was alleged by him that on the basis of transfer vouchers L. P. G. gas connec tions were demanded by the petitioner, who is a dealer of the area, but he demanded illegal gratification of Rs. 3, 000 and refused to give the supply of the cylinders without accepting the gratific-1-tion. The learned Special Judge, Azam garh called for a report from the police. In that connection the public made an en quiry from the petitioner and when he came to know regarding this matter, he filed objections. After hearing the parties, the learned Special Judge by an order dated 7-8-99 directed the police to register a case and to investigate. Aggrieved by it, the present petition has been preferred. It is contended that no offence under E. G. Act is made out and complaint has been lodged with false allegations. That there was no demand of any illegal gratification. However, it is a question of fact to be decided after evidence. It is fur ther contended that the application does not disclose the commission of any cog nizable offence. If is further contended that the contravention of any Control Order has not been mentioned. The learned Special Judge on 1 -4-99 ordered that enquiry be made regarding the Con trol Order from District Supply Officer. However, no report was received, the learned Special Judge has observed that the L. P. G. is an essential commodity and the price of the same has been fixed by the Government and over-charge of price amounts to the offence under Section 3/7, EC Act.
(3.) THE other contention of the learned Counsel for the petitioner is that the order under Section 156 (3), Cr. P. C. can be passed only by the Magistrate and the Special Judge has no jurisdiction to pass any order. It is contended that the Courts of Special Judges have been con stituted only for the trial of offences under E. C. Act. That the Special Judge cannot exercise the powers of the Magistrate under Section 156 (3), Cr. P. C. and cannol pass any order to register the case. THE learned Counsel for the petitioner has also referred to the Circular Letter No. 5/admn. A-3 dated Allahabad 30-3-99 is sued by the Registrar of this Court. In this letter it has been mentioned that after consideration of the amendment in the Essential Commodities Act by Ordinance of 1998. According to the amendment made by the Ordinance, the new cases instituted after 8-7-98 under Essential Commodities Act shall be cognizable by the Magistrate having jurisdiction of the cases. THErefore, after 8-7-98 the Special Judge cannot take cognizance of the case under Section 190, Cr. P. C. THE order of this case has been passed on 7-8-99 Le. after 8-7-98. THErefore, according 10 this Circular Letter, which has been issued on the basis of amendment by Ordinance 1998 in the E. G. Act, cognizance of offence under Section 190, Cr. P. C. under E. C. Act can be taken by the Magistrate and not by the Special Judge. THE Special Judge, therefore, has no jurisdiction to pass order under Section 156 (3), Cr. P. C. directing the police to register a case and to investigate. THE order is, therefore, fit to be set aside. It is also contended by the learned Counsel for the opposite party No. 2 that in pursuance of the order of the Special Judge dated 7-8-99 an FIR has already been recorded and the case has been registered. The photostat copy of the same has been filed. It is, therefore, contended that the order has exhausted and now it cannot be set aside. I am unable to accpet this contention as well. The correction of a decree or order cannot be refused to be examined on the ground that it has already been executed. If the order or decree is set aside, the natural consequences will follow and the parties shall be put in a position as if the decree, or order was never passed. In the present case, if the case has been registered, it can be scraped after setting aside the order by which it was registered. The argument that the order has ex hausted and therefore, cannot be set aside, cannot be accepted and the Court is not debarred from examining the correctness of the order. Therefore, the contention of the learned Counsel cannot be accepted.;