SHARMA, J. - (1.) THESE three applications filed by Murari Lal under Sec. 482 Criminal Procedure Code, 1973, involve common question of law and fact and, therefore, they are decided by a common order.
(2.) THE short facts giving rise to these applications may be stated as follows Three Trucks No. RJR 7855, RJR 4445 and RJR 4845 containing 101 bags 200 kattas and 99 bags and 4 kattas of rice respectively were checked and inspected in the night between 14/15-4-74 at Arawali Petrol Pump, Udaipur by a police party consisting of Mahesh Chandra CI., Kalyan Mal, D.S P., Gajraj Singh, Shri Madan Mohan, Addl. Distt Supply Officer and Shri Bhagwandas, Enforcement Officer. On checking it was found that the bags of rice were going to be transported to Ahmedabad beyond the territories of the State of Rajasthan without any licence or permission from a competent authority. The drivers of the trucks at first misrepresented to the police party that the bags contained potatos therein but later on they made a full disclosure of all the true facts by stating that they had brought the bags of rice in the trucks from Jaipur for being taken to Ahmedabad and that they had false documents known as 'Biltis' in their possession showing that the bags contained potatos. The police seized the trucks and the bags of rice and registered criminal cases under sec. 3 read with sec. 7 of the Essential Commodities Act, hereinafter referred to as the Act. The cases were investigated into and the petitioner and five others were challaned in the court of the Chief Judicial Magistrate, Udaipur, under sec. 3 read with sec. 7 of the Act and secs. 420, 468, 471 and 120-B, I.P.C The learned Chief Judicial Magistrate, Udaipur, upon considering the police reports and the documents filed with them under sec. 173 Cr.P.C. and after giving the prosecution and the accused persons an opportunity of being heard, was of opinion that there were grounds for presuming that the accused persons had committed the aforesaid offences, which he was competent to try. He therefore, passed an order on 8th August, 1974, that charges should be framed against Rajendra and Yogesh accused under sec. 3 read with sec. 7 of the Act and under secs. 420 and 120-B, I.P.C, and the other accused persons, namely, Murari Lal, Bhagchand, Radhey Shyam and Man Mohan should be charged-sheeted under sec. 3 read with sec. 7 of the Act and secs. 420, 468, 471 and 120-B, I.P.C. Aggrieved by this order, Murari Lal petitioner has invoked inherent jurisdiction of this court by way of filing these three applications under sec. 482, Criminal Procedure Code, 1973. I have gone through the impugned orders passed by the learned Chief Judicial Magistrate, Udaipur and heard the arguments advanced by Shri M..M. Singhvi for the petitioner and Shri Dinkar Mehta, Dy. Govt. Advocate appearing on behalf of the State. Firstly, it has been contended on behalf of the petitioner that the Chief Judicial Magistrate, Udaipur, was incompetent to try the offence punishable under sec. 3 read with sec. 7 of the Act as he was, not empowered in this behalf by the State Government under sec. 12-A.(2) of the Act. It is not disputed before me that under sub sec. (1) of sec. 12-A, of the Act the Central Government had issued a notification specifying the violations of the Rajasthan Rice (Export Control) Order, 1961, herein-after referred to as the Order, passed under sec. 3 of the Act which shall be tried summarily. The notification issued by the Central Government in this behalf is No. 6SR/810/dated June 3, 1965, published in the Gazette of India Extra-ordinary part II, Sec. 3(1) page 239 dated June 3, 1965, wherein the orders mentioned in col. No. 2 of Schedule 1 annexed thereto made by the Central Government under sec. 3 of the Act in relation to food stuffs including edible oils, seeds and rice were specified to be special orders for purposes of summary trial under sec. 12-A of the Act. In Schedule 1, at S. No. 22, there is the Rajasthan Rice (Export Control) Order, 1961 which was made by the Central Government in exercise of the powers conferred by sec. 3 of the Act. After the aforesaid notification was issued by the Central Govt. under sub-sec. (1) of sec. 12.A of the Act in relation to the special order, i.e. The Rajasthan Rice (Export Control) Order, 1961, all cases relating to the contravention of such special orders were to be tried summarily by a Magistrate of the 1st Class, specially empowered in this behalf by the State Government. The Chief Judicial Magistrate, Udaipur, was not specially empowered by the State Government to try offences entailing violation of the Order in a summary was till 9-9 1974. On 10 9-1974, the State Government, however, issued a notification specially empowering Civil Judicial Magistrates, Additional Civil Judges and Chief Judicial Magistrates and Civil Judges and Additional Chief Judicial Magistrates to try all cases relating to the contravention of a Special Order made under see. 3 of the Act in relation to any essential commodity. The notification is in vernacular and reads as follows ...[VERNACULAR TEXT OMITTED]... Hence before the date of this notification the Chief Judicial Magistrate, Udaipur, had no jurisdiction to try the petitioner and others for an offence punishable under sec. 3 read with sec." 7 of the Act. He became competent to try it later on, on 10-9-1974, when he was specially empowered in this behalf by the State Government, vide notification No. P. 3(II) Jud/64, dated 10-9-1964, order passed by him on 8 8-1974 was, without jurisdiction so far as it related to the framing of a charge under sec. 3 read with sec. 7 of the Act against Murari Lal petitioner and other accused persons.
(3.) HE was no doubt competent to try the accused persons for offences punishable under secs. 420, 488, 471 and 120-B, I. P. G. if upon considering the police report and the documents sent with it u/s. 173, Cr.P.C. and examining the accused persons and giving the accused an opportunity of being heard, he was of opinion that there were grounds for presuming that the accused had committed the said offences, which he was competent to try and which in his opinion would be adequately punished by him. It was further contended on behalf of the petitioner that even if the prosecution case is accepted at its face value, it does not establish any offence under see. 3 read with sec. 7 of the Act against the petitioner and other accused persons and that it would be a mock trial for these offences and other allied offences is allowed to proceed. In support of the above contention, Shri M.M. Singhvi for the petitioner argued before me that an attempt to commit an offence u/s. 3 read with sec. 7 of the Act widely differs from an intention to commit it and from the preparation made for its commission. According to him, the trucks were seized by the police party at Arawali Petrol Pump, Udaipur, in the night between 14 and 15th April, 1974. The place where the trucks were seized is within the territory of the State of Rajasthan and is far off from the border which separates the State of Gujarat from Rajasthan. It might be that the drivers and the cleaners of the trucks in question would have been instructed later on not to proceed further and to cross the border or that they might have themselves changed their minds and desisted from taking the trucks containing rice bags outside the territory of Rajasthan. HEnce, according to the learned counsel, the act of the accused persons in sending or sending the bags of rice in the trucks to Ahmedabad did not amount to an attempt to commit an offence under sec. 3 read with sec, 7 of the Act because before the actual completion of the offence the offenders could prevent its completion by changing their minds and by not allowing the trucks to cross the territory of the State of Rajasthan. Reliance in support of the above proposition was placed on an authority of the Supreme Court of India Malkiat Singh vs. State of Punjab(l), wherein their Lordships on almost similar facts were pleased to make the following observations "The test for determining whether the act of the appellants constituted an attempt or preperation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress further in its progress the acts already done would be completely harmless In the present case it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Samalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey. Sec. 8 of the Essential Commodities Act States that "any person who attempts to contravene, or abets a contravention of, any order made under sec. 3 shall be deemed to have contravened that order " But there is no provision in the Act which makes a preparation to commit an offence punishable. It follows therefore that the appellants should not have been convicted under sec. 7 of the Essential Commodities Act." Consequently, I am unable to hold that the mere seizure of the bags of rice at a place far off from the borders of Gujarat and Rajasthan from the trucks at Arawali Petrol Pump, Udaipur, amounts to an offence to commit a crime under sec. 3 read with sec. 7 of the Act and Order. A greater degree of determination to commit an offence is required in 'attempt' in comparison to the degree of determination that is required for a preparation to commit it. HEnce on this ground also the impugned order passed by the Chief Judicial Magistrate, Udaipur, dated 8-8-1974 is unsustainable in the eye of law so far as it relates to the framing of the charge against the petitioner and others under sec. 3 read with sec. 7 of the Act. Another contention put forward by the learned counsel for the petitioner is that a bare statement of the facts of this case is sufficient to satisfy this court that the allegations made by the prosecution against the accused persons, if accepted as true, do not disclose any offence under secs. 420, 468, 471 and 120-B. The above contention is not acceptable. It is not desirable for me to express any opinion on the merits of the case so far as it relates to the commission of these offences. Suffice it to say that in view of the allegations against the accused persons it would not be a mock trial if the case is allowed to proceed against the petitioner and others under secs. 420, 468, 471 and 120 B. Lastly, it was urged that the order of the learned Sessions Judge, Udaipur, dated 18 6-1974 directing the sale of the rice at the market rate after approval of the rate by the Chief Judicial Magistrate, Udaipur, is illegal and unjust, because no offence under sec 3/7 of the Act could prima facie be held to have been committed by the accused persons. I have already held above that the learned Chief Judicial Magistrate had no jurisdiction to try the petitioner and others for the offence punishable under sec. 3 read with sec. 7 of the Act prior to 10-9-1974 and that the act of the accused persons did not amount to an offence of attempt to carry the rice out of the territories of Rajasthan in violation of the provisions of sec. 3 read with sec. 7 of the Act and cl. 3 of the Order. In this view of the matter, the rice was not a property in respect of which the Order has been contravened. It could not be forfeited to the State Government under the provisions of the Act. The learned Chief Judicial Magistrate or the learned Sessions Judge, Udaipur, should have passed proper orders as they thought fit for the proper custody of the rice pending the conclusion of the trial for offences punishable under secs. 420, 468, 471 and 120-B, I.P.C. instead of directing the rice to be sold at a market rate. If the property is not sold in pursuance of the order of the learned Sessions Judge, Udaipur, dated 18-6-1974 the Chief Judicial Magistrate, Udaipur, is directed to make such orders as he thinks fit for the proper custody of the rice pending the conclusion of the trial. Consequently, the order passed by the learned Sessions Judge, Udaipur, dated 18-6-1974 directing the rice to be sold at market price after approval of the rate by the Chief Judicial Magistrate is liable to be set aside. ;