SUDARSHAN SHARMA Vs. STATE OF BIHAR
LAWS(PAT)-1979-10-3
HIGH COURT OF PATNA
Decided on October 18,1979

SUDARSHAN SHARMA Appellant
VERSUS
STATE OF BIHAR Respondents


Referred Judgements :-

RATAN LAL AND OTHERS V. STATE OF BIHAR [REFERRED TO]
SURAJ NARAIN PANJIAR V. STATE OF BIHAR [REFERRED TO]
BRAHMA KUMAR AGRAWAL V. THE STATE OF BIHAR [REFERRED TO]
KULL SINGH V. THE STATE OF BIHAR [REFERRED TO]


JUDGEMENT

R.P.Sinha, J. - (1.)This is an application under section 402 of the Code of Criminal Procedure by the petitioners for quashing the order dated 19-4 1978 by which cognizance has been taken under section 7 of the Essential Commodities Act (hereinafter referred to as 'the Act') by the Sub-divisional Judicial Magistrate, Jahanabad. It appears that the Marketing Officer of Jabanabad instituted a case under section 7 of the Act at Karpi police station on 1-8-1977 on the allegation that the petitioners who were licence-holder had violated the terms and conditions of the licence and had also violated the Price Display Order 1975 and hence were liable for prosecution under section 7 of the Act The' Karpi police investigated the case and found that the allegation made against the petitioners was not correct. Hence it submitted final report yet the learned Sub-divisional Judicial Magistrate, Jahanabad, took cognizance under section 7 of the Act and issued summons against the petitioners.
(2.)Learned counsel for the petitioners has submitted that the impugned order of the learned Sub-divisional Judicial Magistrate aforesaid is entirely illegal and without jurisdiction and fit to be quashed as the learned Magistrate was not competent to take cognizance under section 7 of the Act against the petitioners when the police had submitted final report that the case was not true and the learned Magistrate had no material to take cognizance against the petitioners. It has been further contended that under section 11 of the Act no court can take cognizance of an offence punishable under the Act except on a written report of the facts constituted an offence by a public servant. Section 11 of the Act as follows :
"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 Indian Penal Code (45 of 1860 In support of his argument, learned counsel for the petitioners has relied on a Bench decision of this Court in the case of Ratan Lal and other v. State of Bihar (1968 P.L. J. R. 36). In that case also tke same point was involved. There also the police had submitted final report and the Sub- divisional Magistrate, in spite of it, took cognizance and ordered for trial"
of the petitioner of that case. There it was held that the Supply Inspector could have made a report and cognizance could have been taken on the basis of such report which would have been in conformity with the requirement of section 11 of the Act but that was not done and information was lodged and the Investigation Officer did not submit charge-sheet. It was held that the Sub-divisional Magistrate was not competent to take cognizance At paragraph 24 of the judgment it has been observed as follows : -
"The crucial point, however, is that in this case the police did not submit a charge-sheet so that there was no report in any sense before the Sub-divisional Officer for taking cognizance In this case. The Supply Inspector could not be taken to have been satisfied that a prima facie case was made out, for if it were so he would be authorised as a public servant to make a report to the Magistrate for action. The very fact that he did not do so but filed a first information report before police shows that he was not satisfied by himself that a prima facie case was made out. The matter was left to the discretion of the police ; there after the police, after investigation, came to the conclusion that no prima facie case was made out and, obviously the explanation submitted by the petitioner was found acceptable, hence the prosecution of the petitioner, in the circumstances would not be justified. What then is the authority on which the subdivisional Officer could proceed to take cognizant of the care ? He was in error, therefore, in taking cognizance and transferring the case for trial to another Magistrate."

(3.)Learned counsel for the petitioners also referred to two other decisions of this Court in the case of Suraj Narain Panjiar v. State of Bihar, (1977 B. B. C. J 397) and Brahm Kumar Agrawal v. The State of Bihar, 1977 B. B. C. J. 568). Both the decisions, referred to above, go to support the contention of learned counsel for the petitioners.


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