STATE Vs. GOPALAN

JUDGEMENT

(1.) TWO points on which the Special Judge appointed under the provisions of the Essential Commodities(Special Provisions)Act 18 of 1981 entertained doubts necessitated these two references to the judicial side.They are(1)whether the Special Judge is competent to take cognizance of offences under the Essential Commodities Act as amended by the Special Provisions Act 18 of 1981 without the accused being committed before him by a competent Magistrate and(2)whether the Special Judge has jurisdi­ction to take cognizance of offences committed prior to 1st September 1982 on which date the Special Provisions Act Came into force.

(2.) ON the first point itself the Special Judge raised more than one question.In the first place he raised a distinction between cases instituted on police report and cases instituted on the reports of public servants as defined in section 21 of the Indian Penal Code other than police officers.According to him even if it is taken that he is competent to take cognizance on a police report without the accused being committed by a competent Magistrate,the position must be different in taking cognizance on the report of other public servants.He holds the view that at any rate in the second category of cases(on the reports of public servants other than police officers)the report must be filed before the competent Magistrate and he can take cognizance only on committal.In the first category of cases(cases on police report)he takes the stand that 'police report 'mentioned in section 12AA(1 )(e)of the Special Provisions Act could only be a final report under Section 173(2)of the Criminal Procedure Code and hence even if he is competent to take cognizance without committal it could be only on the final report.In other words his stand is that the F.I.R.and other papers before the filing of the final report under section 173(2)could only be presented before the competent Magistrate and he(Special Judge)is not bound to entertain them.His ultimate opinion is that he is competent to take cognizance of any offence as a court of original jurisdiction under section 193 of the Criminal Procedure Code only on committal.The further point raised by him in this respect is that in cases which were already entertained by Magi­strates by receiving papers or by taking cognizance on reports,transfer of the cases to him by the Magistrates on the administrative direction of the High Court is not competent and there must be orders of transfer by the High Court under section 407 of the Criminal Procedure Code.Repeated administrative directions from the High Court on all the above points based on the reports of a committee of three Judges constituted by the Chief Justice were being regularly flouted by him under some pretext or other.He refused to entertain cases forwarded to him by different Magistrates as per the directions of this Court and returned the papers.Police reports and reports from other public servants under section 11 of the Essential Commodities Act were also not entertained by him.That attitude has resulted in much inconvenience and harassment as well as delay in dispensation of justice.It is in this background that the reference came.

(3.) IN spite of drastic amendments to various provisions of the Essential Commodities Act introduced by sections 3 to 11 of the Special Provisions Act,though as a temporary measure,section 11 of the Parent Act was left untouched.That means the legislature wanted taking cognizance under section 11 to continue.Such cognizance includes cogni­zance on police report also.The amended provision in section 12 -AA(1 )(e)that the special court may take cognizance upon a perusal of police report need be taken only as a clarification to section 11 in order to make it clear that the report of a public servant mentioned in section 11 includes a police report also.It cannot be interpreted that section 12 -AA(1 )(e)restricted taking cognizance by special court only on police report.Bringing offenders to justice is not only the right of citizens but their duty also.The restriction to this right imposed by sections 11 is in public interest in order to avoid harassment at the hands of rival individual businessman.No further legislative intent to restrict this right could be read even if sections 11 and 12 -AA(1 )(e)are taken together.What section 12 -AA(1 )(e)says is only 'may 'and not that cognizance should be taken solely on police report.So also there is nothing to indicate that cognizance without the accused being committed for trial provided under section 12 -AA(1 )(e)is restricted only to police reports and in the case of reports filed by other public servants cognizance should be taken by Magistrates who will have to commit the accused to the special court.Such different treatments cannot be read into the provisions in the absence of any provision indi­cating a legislative intent that committal proceedings is necessary in some cases.The object and purpose of the legislation as evident from the preamble definitely negatives such a legislative intent which will have the effect of delaying trials.The amendments are intended to deal more effectively with persons indulging in hoarding and blackmarketing of,and profiteering in,essential commo­dities and to provide speedy trials of offences under the Act.