- (1.) The Sub-Divisional Judicial Magistrate, Gumla has made reference to this Court under section 395 of the Code of Criminal Procedure the following questions:- (i) When the offences under the Essential Commodities Act are punishable with imprisonment up to 7 years, then how the provisions of section 326(3) will be applicable. (ii) Whether after the expiry of Special Amendment Act of 1981 the provisions of section 12-A of 1955 Act will be applicable on the cases registered during the continuance of 1981 Act but still pending ? (iii) Whether in absence of notification by the Central Government with the approval of Parliament as required under section 12-A of 1955 Act cases still pending can be tried summarily, and section 326(3) of Cr. P.C. will be applicable to those cases ? (iv) Whether in case of non-application of Section 326(3) Cr. P.C. the evidence recorded by Special Judge (under the Special Amendment Act, 1981) Court of S.D.J.M, can act and read those statements of witnesses, while deciding the case before him ? (v) Whether offences punishable up to 7 years under the E.C. Act, 1955 come under the category of warrant trial or not ?
(2.) For ready reference Section 395 of the Code of Criminal Procedure is quoted here inbelow :- "Reference to High Court- (1) Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore, and refer the same for the decision of the High Court. Explanation- In this section, "Regulation" means any Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State. (2) A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of sub-s. (1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case. (3) Any Court making a reference to the High Court under sub-s. (1) or sub-s. (2) may, pending the decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when called upon."
(3.) From the facts appearing the reference as stated by the learned Sub-Divisional Judicial Magistrate, Gumla, it appears that nowhere it has been stated that any case involving the question referred by him is pending before him.;