ARORA, J. - (1.) THIS miscellaneous petition is directed against the orders dated 3-4-89 and 1-10-91, passed by the Special Judge, Essential Commodities Act Cases, Sirohi, by which the learned Special Judge dismissed the application filed by the petitioners for dropping the proceedings against them and ordered for the de-novo trial. The petitioners have, also, prayed for quashing the proceedings pending in the trial Court.
(2.) THE facts of the case are that the Enforcement Inspector, Sirohi, on 21-4-87, inspected the factory of the petitioners and found that the factory started manufacture of cement without obtaining the I. S. I. Certificate and, thus, the petitioners have contravened the provisions of the Cement Control Order and have committed the offence punishable under Section 3/7 of the Essential Commodities Act. THE cement manufactured by the petitioner in their factory was seized and an F. I. R. was lodged against them. After necessary investigation, the challan was presented against the accused-petitioners and they are facing trial before the learned Special Judge, E. C. Act Cases, Sirohi. THE petitioners, after the accusation were read over to them, moved an application before the learned Special Judge that the prosecution launched against them may be dropped and they may be discharged. THE learned Special Judge considered the contention passed by the learned counsel for the accused-petitioners and dismissed the application filed by the petitioners by its order dated 3-4-89. It is contended by the learned counsel for the petitioners that the learned Special Judge committed an error in dismissing the application and not dropping the proceedings against the accused-petitioners and as such the order dated 3. 4. 89 passed by the learned Special Judge deserves to be quashed and set-aside. It is further contended by the learned counsel for the petitioners that the cement, which was seized by the Enforcement Inspector was later-on released by the order of this Court and as the cement was found as per the prescribed standard, therefore, no case for proceeding against the petitioners is made-out and the proceedings, therefore, deserve to be quashed and set-aside. It has, also, been contended by the learned counsel for the petitioners that in similar matter relating to the contravention of the provisions of Section 3/7 of the Essential Commodities Act and starting manufacture of cement without obtaining the I. S. I. Certificate, Sarvashri Nemi Chand, Jagdish Chand and Krishan Gopal -the Directors of M/s. Sodani Cement and Chemicals Private Limited, Abu Road-were, also, prosecuted and challan against them was, also, filed and case No. 3 of 1988 was registered against them in the Court of the Special Judge, Essential Commodities Act Cases, Sirohi, and the allegations against them were the same, but the State Government, later on, withdrew the case against them but the petitioners, who are similarly situated, are facing trial and the case was not withdrawn against them though a request for the same was made by them. It has, also, been contended by the learned counsel for the petitioners that the learned Special Judge was not justified in ordering for the de-novo trial. The petitioners are facing the agony of prosecution and trial for the last more than six years and the matter should have been disposed of on the basis of the material already available on record and the learned Special Judge should have proceeded from the stage already in existence. In support of his contention, learned counsel for the petitioners has placed reliance over Prakash Chandra Jaiswal vs. the State of Uttar Pradesh (1 ). The learned Public Prosecutor, on the other hand, has supported the order passed by the Court below and, also, submitted that the proceedings cannot be dropped at this stage and it is not the case against the accused-petitioners that the cement was not of the prescribed standard but the case against them is that they started manufacturing the cement without obtaining the I. S. I. Certificate. It has, also, been contended by the learned Public Prosecutor that though it is a warrant case but the trial has to be conducted in a summary manner and in a summary trial the provisions of Section 326 Cr. P. C. are not applicable and, therefore, the learned Special Judge had no option except to order for the de-novo trial. Lastly, it is contended by the learned Public Prosecutor that it is the discretion of the State Government to decide whether the prosecution should be withdrawn against an accused or not and this Court, exercising its powers under Section 482 Cr. P. C. is not expected to interfere in such matters and direct the State Government to order for the withdrawal of the case. I have considered the submissions made by the learned counsel for the parties. So far as the first contention is concerned, I have perused the order dated 3-4-89, passed by the learned Special Judge. The learned Special Judge has given cogent reasons for rejecting the application filed by the petitioner. The learned counsel for the petitioners has failed to show any illegality in the order dated 3-4-89. Even otherwise, the contention, raised by the learned counsel for the petitioners deserves to be dismissed on the ground of challenging this order after a delay of about two years. The order was passed on 3-4-89 but the petitioners rest contended with the result of the order and did not challenge it before and the same has been challenged, now, after an inordinate delay, alongwith the impugned order dated 1-10-91. The next contention, raised by the learned counsel for the petitioners is that when this Court, in its writ jurisdiction, ordered for the delivery of the cement to the petitioners and the cement was found as per the prescribed standard then the prosecution should have been dropped against the petitioners. The contention of the learned counsel for the petitioners is bereft of any substance because this Court, while deciding the writ petition filed by the petitioners, only directed the respondent to return the cement back to the petitioners in case it is found in accordance with the prescribed standard. This Court did not give any opinion : whether the goods were of prescribed standard or not. Mere delivery of the goods to the petitioners will not amount fulfilling the requirements of the Cement Control Order. The case against the petitioners, in the present complaint, is not that the cement found in their premises was not of the prescribed standard, but the charge against them is that they started manufacturing the Cement without obtaining the I. S. I. Certificate. That is a separate contravention of the provisions of the Cement Control Order, for which they are being prosecuted and not due to want of prescribed standard and, therefore, the proceedings against the petitioners cannot be dropped only on the ground that the cement was of the prescribed standard. Even there is no finding given by this Court in this regard while deciding the writ petition. Whether the time was taken by the I. S. I. for granting the certificate and whether any contravention has been made by the petitioners, these are the matters to be decided by the learned Special Judges and expression of any opinion on these points will adversely affect the case of either of the parties.
(3.) THE next contention, raised by the learned counsel for the petitioners is that in a similar matter, i. e. , in the case of Sodani Cement and Chemicals Private Limited, Abu Road, the State Government ordered for the withdrawal of the case against the accused but no such order was passed in the case of the present petitioners, though the case against them is of the same nature. Whether a case against any accused is to be proceeded-with or withdrawn, that is the matter to be decided by the competent authority in accordance with law and in the facts and circumstances of the case and it is not open for this Court to interfere in such matters while exercising the powers under Section 482 Cr. P. C. for directing the competent authority to withdraw the case against the petitioners, also. THE case of Prakash Chandra Jaiswal (supra), on which reliance has been placed by the learned counsel for the petitioners, is not applicable to the present case because the petitioners and other three persons were facing separate proceedings. THE facts of their case are different. In the case of Prakash Chandra Jaiswal (supra), the prosecution was launched against two government servants for the same offences and both of them were discharged, but the government launched fresh prosecution against only one accused and, therefore, the Court came to the conclusion that as the case against both the accused was similar and no cogent reasons were shown for not prosecuting the other accused and on the basis of the similarity of the accusation against them, the Court quashed the proceedings by holding that the prosecution was discriminatory. THE ratio of Prakash Chandra Jaiswal's case is not applicable to the facts and circumstances of the present case. The last contention, raised by the learned counsel for the petitioners is that the learned Special Judge committed an error in ordering for the de-novo trial against the petitioners. The cases unde the Essential commodities Act are, in essance, the Warrant Cases but a special provision has been made by the Legislature by way of enacting Clause (f) to Sub-section (1) of Section 12aa, of the Essential Commodities Act for the trial of the offences by the Special Court in a summary way and the provisions of Section 262 to 265 Cr. P. C. are made applicable to such cases. Section 262 Cr. P. C. deals with the procedure for summary trial and states that in the trial under Chapter 21, the procedure specified in this Code for the trial of summons cases, shall be followed except hereinafter mentioned. Clause (f) to Sub-section (1) of Section 12aa of the Act makes it obligatory on the Special Court to try the cases summarily and the Special Court has no other alternative but to hold a summary trial even if it is satisfied, having regard to the clarity of the offence, that it is not desirable to try the case summarily. The trial in a summary way in such cases has to be made in accordance with the procedure provided for the summons cases and, therefore, the provisions of Section 32 Cr. P. C, which authorise the Successor Judge to proceed with the trial onwards from the stage left by its Predecessor, are not applicable. Section 326 Cr. P. C. is an exception to the general rule which is not applicable in the summary trial and, therefore, the learned Special Judge had no option except to order for the de-novo trial and rightly passed the impugne order, which, too, does not required any interference. In the result, I do not find any merit in this miscellaneous petition and the same is hereby dismissed. . ;