TIKAM CHAND Vs. STATE

JUDGEMENT

(1.) Tikam Chand and others are dealers in rape seed oil and wheat. Their stocks were checked on 22nd July 1977 at 2 P. M. It was found that their stock registers were not filled from 17-7-1977 to 21-7-1977 and there were discrepancies in the stock of rape seed and rape seed oil. It was fur ther found that 40 bags of wheat which were received by gate-pass No. 71/51 dated 5th June 1976 vide Truck No. 6187 USA, was not found in the stock register and the Satti Bahi. As such Sri Ram Pal Singh, Senior Marketing Inspector submitted a report to the Police on 20th August 1977. After investigation the police submitted a charge-sheet vide Paper No. 3-A on 1st October 1977. The result of the investigation including the charge-sheet and other relevant papers were forwarded to the District Magistrate, Agra through the A. P. O. vide application paper No. 4-A01-2 on 9-5-1978. After perusing the papers the District Magistrate, Agra Sri V. N. Channa granted permission for prosecu ting the applicants. The charge-sheet and the relevant papers were thereafter received in the court of Sri P. N. Sharma Chief Judicial Magistrate, Agra on 9th May 1978. Case No. 2084/78 was regis tered against the applicants on 26th September 1978 for the offence under Section 3/7 of the Essential Commodities Act. Notices were issued to them. The accused appeared on 24th October 1978 and filed an application paper No. 11-B in which preliminary objections were raised. It was prayed that the proceedings be dropped. After hearing the parties the Magistrate was of the opinion that the complaint was not maintainable. He, therefore, discharged the accused and directed release of the seized oil and drums of rape seed etc. , on 26th October 1978. Aggrieved thereby a revision was filed by the State before the Sessions Judge, Agra, which has been allowed on 9th July 1979 by the VIth Additional District and Sessions Judge, Agra. The order of discharge and the release of the property attached, passed by the Magistrate on 26th October 1978 was set aside and the case was remanded to the trial court for providing an oppor tunity to the prosecution under Section 244 Cr. P. C. to adduce evidence and for proceeding further in accordance with law. It is in these circumstances that the instant revision has been filed by Tikam Chand and others before this Court. I have heard counsels for the parties and have also perused the impugned order. The record of the case has also been scrutinised by me. The only point which has been argued by the applicants' counsel is that no order has been passed by the District Magis trate, Agra for prosecuting the accused. In this connection it will be necessary to quote Section 11 of the Essential Com modities Act, as amended by U. P. Act of 1974. The said section runs as follows ; "no Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by an order of or under authority from the District Magistrate or such other officer as may be empowered by the State Government by general or special order in this behalf. " I find from the record that an application has been addressed and forwarded to the District Magistrate, Agra under the sig nature of Vishwanath Singh, Sahayak Abhiyojan Adhikari, Agra dated 9th May 1978 for according sanction. This application appears to have been con sidered by the District Magistrate, Agra, who passed the following order ; "sambandhit abhilekh dekhay. Pratham prisht mein hi abhiyuktgan Tikamchand, Bhagwandas, Nannumal, Motumal aur Thakurdas putragan Devmal kay virudh apradh Dhara 3/7 E. C. Act ka banta hai. Abhiyukt-ganon kay virudh abhiyog chalayaya janay ki awikriti pradan ki jati hai. " Sd. (V. N. CHANNA) ZILA MAGISTRATE, AGRa 10/5" The argument advanced by the learned counsel for the State is that it was not at all necessary for the prosecution to obtain sanction of the District Magistrate before the prosecution was actually laun ched. Under Section 11, quoted above, a (sic) has been created upon the powers of the court to take cognizance of an offence under the Act except on a report in writing made by an order of under the authority of the District Magistrate. In other words, two contingencies are contemplated in this Section. Either the report should be made when the Dist rict Magistrate had ordered likewise, or it may also be made under the authority received from the District Magis trate, or such other officer as may be authorised by the Government. In the instant case we are concerned with the first, alternative. Learned counsel has contended that granting sanction does not amount to an order for prosecution. He has elaborated his argument by making a reference to Section 20 of the P. F. Act, which requires consent to be taken prior to the institution of the prosecution from the State Government or person autho rised in this behalf. There can be no doubt that in ordering prosecution under Section 11 of the E. C. Act a consent in writing, as envisaged under Section 20 of the P. F. Act, is not a necessary requirement. But, at the same time, we cannot lose sight of the fact that in the instant case the District Magistrate had perused all the connected papers in connection with the offence in question, as is obvious from the order ; "sambandhit Abhilekh dekhay" and thereafter he was of the opinion that the accused per sons should be allowed to be prosecuted. "abhiyuktganon kay virudh abhiyog chalaye janey ki sweekriti Pradan ki Jaati Hai. " In other words, after application of his mind, he was of the opinion that this was a fit case for ordering prosecu tion. The order of the District Magis trate, in my opinion, is, in the circums tances of the case, tantamount to an order for prosecution. I am aware of the fact that Section 11 of the E. C Act as stood prior to its amendments autho rised a public servant, as defined under Section 21 of the I. P. C. to file a com plaint in court for an offence committed under that Act. Perhaps the Legislature in its wisdom did not consider it as a sufficient safe-guard, as a result of which, it directed a responsible officer of the State, narrely the District Magistrate to exercise his mind to the facts of the case before ordering prosecution. This was done with the clear intention that the citizen should not be unnecessarily haras sed by the frivolous prosecution. In the instant case the District Magistrate has exercised his mind and has ordered pro secution. It is a different matter that the wordings of his order are not palatable enough to the applicants' counsel. But it clearly discloses the intention on the part of the District Magistrate that the applicants must be prosecuted. It is nothing less than the order for prosecu tion itself. It is not necessary for the District Magistrate under Section 11 of the E. C. Act to himself personally file a complaint. The order for prosecution must be made by him but the complaint can be filed by any other officer in com pliance with the provision of law. For the reasons given above, I do not find any illegality having been com mitted by the Sessions Judge in ordering the prosecution of the applicant. No other point has been argued before me. This revision fails and is hereby dismissed Leave to appeal to the Supreme Court was asked for and is refused. .