- (1.) HEARD learned counsel for the petitioner and learned APP for the State. This quashing application under Section 482, Cr PC has been filed against the order dated 14.9.1985 by which cognizance was taken and order dated 14.4.2003/ 16.4.2003 passed in Kotwali P.S. Case No. 433/85, wher by and whereunder learned Sub -divisional Judicial Magistrate, Ranchi refused to drop the proceeding of the case.
(2.) PROSECUTION case in brief is that a case was instituted against the petitioner for violation of the provisions of Bihar Essential Commodities Act, 1977. After institution of the case the petitioner and his father filed anticipatory bail, which was granted and thereafter in the preliminary stage of investigation the petitioner filed Cr. Misc. No. 4303/85(R) but on 8.12.1988 the petitioner withdrew the application with liberty to raise the points before the trial Court and at the time of trial the points were raised but learned Court below considered those points and rejected the petition. Learned counsel appearing for the petitioner has assailed the order on several grounds. Learned counsel pointed out that although the petitioner had earlier withdrawn the application but a subsequent petition with the same prayer will lie and in that connection he placed reliance upon AIR 1975 SC 1002. In this very case an earlier petition for quashing of the proceeding was refused by the trial Court and thereafter a subsequent petition for quashing of the proceeding was filed and that quashing application was allowed and proceeding was dropped and the matter went up to the Supreme Court where the Apex Court held that for preventing the abuse of the process of Court. High Court is justified in entertaining the second application for quashing of the proceeding. Paragraph 2 of the said decision is quoted herein below : "2. The main question debated before us was whether the High Court had jurisdiction to make the order dated 7th April, 1970 quashing the proceeding against respondent Nos. 1, 2, and 3 when on an earlier application made by the 1st respondent, the High Court had by its order dated 12th December, 1968 refused to quash the proceeding Mr. Chatterjee on behalf of the State strenuously contended that the High Court was not competent to entertain the subsequent application of respondent Nos. 1 and 2 and make the order dated 7th April, 1970 quashing the proceeding, because that was tantamount to a review of its earlier order by the High Court, which was outside the jurisdiction of the High Court to do. He relied on two decisions of the Punjab and Orissa High Courts in support of his contention, namely Hoshiar Singh V/s. The State, AIR 1958 Punj 312 and Namdeo Sindhi V/s. The State, AIR 1958 Ori 20. But we fail to see how these decisions can be of any help to him in his contention. They deal with a situation where an attempt was made to persuade the High Court in exercise of its revisional jurisdiction to reopen an earlier order passed by it in appeal or in revision finally disposing of a criminal proceeding and it was held that High Court had no jurisdiction to revise its earlier order, because the power of revision could be exercised only against an order of a subordinate Court. Mr. Chatterjee also relied on a decision of this Court in U.J.S. Chopra V/s. State of Bombay, (1955) 2 SCR 94 : AIR 1955 SC 633, where M.H. Bhagwati, J., speaking on behalf of himself and Imam, J., observed that once a judgment has been pronounced by the High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment and there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction over the same. These observations were sought to be explained by Mr. Mukherjee on behalf of the first respondent by saying that they should not be read as lying down any general proposition excluding the applicability of Section 561 -A in respect of an order made by the High Court in exercise of its appellate or revisional jurisdiction even if the conditions attracting the applicability of that section were satisfied in respect of such order, because that was not the question before the Court in that case and the Court was not concerned to inquire whether the High Court can in exercise of its inherent power under Section 561 -A review an earlier order made by it in exercise of its appellate or revisional jurisdiction. The question as to the scope an ambit of the inherent power of the High Court under Section 561 -A vis - a -vis an earlier order made by it was, therefore, not concluded by this decision and the matter was res integra so far as this Court is concerned Mr. Mukherjee cited in support of this contention three decisions, namely, Raj Narain V/s. The State, AIR 1959 All 315 (FB), Lal Singh V/s. The State, AIR 1970 Punj 32 and Ram Vallabh V/s. State of Bihar, AIR 1962 Pat 417. It is, however, not necessary for us to examine the true effect of these observations as they have no application because the present case is not one where the High Court was invited to revise or review an earlier order made by it in exercise of its revisional jurisdiction finally disposing of a criminal proceeding. Here, the situation is wholly different. The earlier application which was rejected by the High Court was an application under Section 561 - A of the Code of Criminal Procedure to quash the proceeding and the High Court rejected it on the ground that the evidence was yet to be led and it was not desirable to interfere with the proceeding at that stage. But, thereafter, the criminal case dragged on for a period of about one and half years without any progress at all and it was in these circumstances that respondent Nos. 1 and 2 were constrained to make a fresh application to the High Court under Section 561 -A to quash the proceeding. It is difficult to see how in these circumstances it could ever be contended that what the High Court was being asked to do by making the subsequent application was to review or revise the order made by it on the earlier application. Section 561 -A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of respondent Nos. 1 and 2 and consider whether on the facts and circumstances then obtaining the continuance of the proceeding against the respondents constituted an abuse of the process of the Court or its quashing was necessary to secure the ends of justice. The facts and circumstances obtaining at the time of the subsequent application of respondent Nos. 1 and 2 were clearly different from what they were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress in the criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and a half years. It was for this reason that, despite the earlier order dated 12th December, 1968, the High Court proceeded to consider the subsequent application of respondent Nos. 1 and 2 for the purpose of deciding whether it should exercise its inherent jurisdiction under Section 561 -A. This the High Court was perfectly entitled to do and we do not see any jurisdictional infirmity in the order of the High Court. Even on the merits, we find that the order of the High Court was justified as no prima facie case appears to have been made out against respondent Nos. 1 and 2."
(3.) ANOTHER point that was taken is that no prosecution can be launched without previous sanction of the competent authority and obtaining of sanction is precondition and in this connection reliance was placed upon Mithila Cycle Centre V/s. State of Bihar (SJ), (1990) 2 PLJR 184. Paragraphs 4 and 5 of the judgment are quoted hereinbelow : "4. The learned counsel for the petitioners has submitted that there are other legal infirmities in the prosecution case the first is the lack of sanction. The proviso to Clause 6 of the Display Order reads as follows : "Provided that no prosecution shall lie against a person for contravention of any of the provisions of this order unless the same has been sanctioned by the District Magistrate or Special Officer -in -charge Rationing or Additional District Magistrate (Supply). Sub - divisional Magistrate within limits of their respective local jurisdiction." This proviso makes it clear that no prosecution shall lie against any person for contravention of any of the provisions of the Order unless the sanction has been obtained from the appropriate authority. Mrs. S.L. Jha the learned State Counsel accepted the position that sanction has not been given in the case so far but she argued with great emphasis that this will not make the prosecution invalid and that sanction can be obtained subsequently. I am unable to accept this contention. The wordings of the proviso make it clear that no prosecution shall lie unless the same has been sanctioned by the appropriate authority. The prosecution against a person in respect of an offence under the Act for alleged violation of the Display Order must be deemed to commence the moment the case is instituted and the investigation machinery comes into action. What take place subsequently, namely continuation of the investigation, submission of the final form, taking of cognizance and so on, is part of the process of prosecution against the person who is made to figure as the accused in the case. In my opinion, therefore, the proviso to clause 6 of the Display Order does not permit either initiation or continuation of the prosecution at any stage without the necessary sanction. The legal position is now well settled that the prosecution for an offence under the Essential Commodities Act cannot proceed and must be deemed to be bad in the absence of the necessary sanction as required by the statute. Reference in this connection may be made to the case reported in 1983 PLJR 72 (Puranmal V/s. The State). It was held in that case that although there may be sanction for prosecution of a firm, the prosecution against the partners without sanction would be bad in law and liable to be quashed. Similar view has been taken by this Court in cases reported in 1988 PLJR 500 (DB) and 1988 PLJR 563. The words "no prosecution shall lie unless the same has been sanctioned" clearly indicate that obtaining of sanction is a precondition for launching of prosecution for violation of any provision of the Display Order." ;