STATE OF KARNATAKA Vs. L N CHAKRAPANI

JUDGEMENT

(1.) The above petitions have been referred for disposal by a Division Bench by our brother R. Ramakrishna, J., under an order of reference made on the 18/03/1991. The learned Judge after noticing that there was a marked conflict or divergence of views between two decisions of this Court both by two learned single Judges bearing on a point that had also arisen before him. His Lordship therefore felt the contending views in the two earlier decisions be taken note of by a Division Bench, the differences resolved and a conclusive opinion recorded in the matter. Therefore, acting under S. 8 of the Karnataka High Court Act, 1964 the learned Judge made the reference as aforesaid. That is how these revision-petitions came up for consideration and disposed by us.

(2.) But we notice along side that in a number of other criminal revision-petitions in which the point which we are required to consider in these petitions has also arisen. The Registry of this Court have tagged them on for disposal along with the revision-petitions that are specifically referred for consideration and disposal by us as stated above. We do not find any formal order having been made by any Bench directing the posting of the other cases referred to herein for disposal along with the matters referred to us. We have however had the advantage of hearing counsel appearing in those cases and as a matter of fact we also heard Mr. Tilgul, who had sponsored a similar revision-petition even in the absence of the same being posted before us.

(3.) With this prefactory observations, we go on to consider the cases referred for disposal by our brother R. Ramakrishna, J. To put ourselves into the stride, we may with advantage excerpt the brief order of reference itself since that would give an insight to the issues that are controverted and hence arising for our consideration. The order of reference reads thus : "The above Criminal Revision Petitions requires a common order as the substantive question of law involved in both the revision petitions are one and the same. The question is : "Whether a Special Judge can invoke the provisions of S. 167, sub-cl. (5) of the Criminal Procedure Code (shortly called 'the Code') to release an accused who is alleged to have been committed the offence punishable under S. 3 read with S. 7 of the Essential Commodities Act (shortly called 'the Act') ? 2 In Criminal Revision Petition No. 51/90, the offence alleged against the respondent was, the violation of Cl. (3) of the Kerosene (Restriction on Use) Order, 1966. The respondent being a driver of an Autorickshaw bearing Regn. No. MYA 4027 was found using kerosene mixed with petrol as fuel on 21-3-1988 at about 11.55 a.m. in front of Basavangudi Police Station. 3 In Criminal Revision Petition No. 319/90 the offence alleged against the respondents was, the contravention of Cl. (15) of the Karnataka Cement Control Order, 1983 punishable under S. 3 read with S. 7 of the Act. 4.In the former case, the respondent filed IA. II to stop further all proceedings in exercise of power under S. 167 of the Code as the charge-sheet has been filed more than 11 months after his arrest. The learned Special Judge relying on the decision of this Court in State v. Abdul Razak Mohamed Saheb, reported in ILR 1988 Kant 3175 and in Iswarappa Magundappa Aribenchi v. State of Karnataka, reported in ILR 1987 Kant 676 decided by Patil, J., allowed the application and stopped further proceedings in the case. 5.In Criminal Revision Petition No. 319/90 the Special Judge, Bijapur, relying on Abdul Razak Mohamed Saheb's case, ILR 1988 Kant 3175 dismissed the case and discharged the accused. 6.The learned Government Pleader has brought to our notice another judgment in Gadag Co-operative Textiles Mills Ltd. v. State of Karnataka, ILR 1988 Kant 1489. In this decision, Kulkarni, J., on similar circumstances, held that S. 167, sub-sec. (S) of the Code cannot be invoked and applied re. an offence punishable under S. 7 of the Act for a breach of the various orders passed by the State Government under S. 3 of the same Act as the said offence was punishable with imprisonment which may extend to 7 years. Therefore, it is held that any offence punishable under S. 7 of the Act for the breach of various orders passed by the State Government under S. 3 of the Act is a warrant case. 7.Since there is conflicting opinions expressed by two single Judges of this Court, it is necessary that these cases require to be referred to a Division Bench for opinion. Hence I refer these Criminal Revision Petitions for disposal by a Division Bench, under S. 8 of the Karnataka High Court Act."