BABU LAL Vs. STATE OF U P

JUDGEMENT

(1.) All these four cases are being disposed of by this common order as they arise out of the same facts.

(2.) It appears that the revisionists were sent up in Cases Nos. 355 of 79 and 356 of 79 of police station Kolwali Fatehpur on 8-9-1979 to stand their trial Under Section 3/7 of the Essential Commodities Act (Act No. 10 of 1955) Crime Nos. 4 and 5 of 78 Kotwali, Fatehpur. Cognizance of the offence was taken by the Chief Judicial Magistrate on 12-2-1979. After adjournments dated 8-7-80 and 198-80 revisionists were charged by learned Magistrate on 28-4-80. Pending this case it transpired that requisite sanction for prosecution was wanting. Section 11 of the aforesaid Act relating to sanction is extracted below:

(3.) The contention of the learned Counsel for the revisionists before me is that the aforesaid proceedings are liable to be quashed. This contention is upheld for following reasons. Magistrate takes cognizance of an offence on a police report Under Section 190B of the Cr.P.C. Police report is submitted Under Section 173 of the Cr.P.C. After the initiation of the proceedings no fresh police report is contemplated by law. It is not open to the Magistrate to proceed on a fresh additional police report sub-mitted Under Section 173(8, of the Cr. P. C for taking cognizance of an offence which had already been noticed judicially by the learned Magistrate concerned. It was observed in Jiwan Shanker Sharma v. State 1979 All Cri C. 216 : 1979 All LJ 1289 at p. 1290: After investigation a charge-sheet was submitted in the court of Sessions Judge. The Sessions Judge took cognizance and thereafter transferred the case to the Additional Sessions Judge. After transfer of case to the Additional Sessions Judge and after statements of ten witnesses had been recorded by the trial court an application was moved on behalf of prosecution seeking that they may be permitted to submit an additional report under the provisions of Section 173(8, Cr.P.C. This application was allowed by the trial court. It was held: "The words 'after a report under subsection (2) has been forwarded to the Magistrate;' show that the officer in charge of a police station is empowered to investigate even after the report has been forwarded to the Magistrate. But if the provisions of Sub-section (s (2, (3) and (8) are read together it implies that even the powers of the investigation by the in charge of police station have to be exercised before cognizance is taken. It is also significant that cognizance has to be taken under the provisions of Section 190, Cr.P.C. and the Magistrate is given power to take cognizance upon a police report which means the additional report, if any, submitted under Sub-sections (3) and (8). Sub-section (8) does not empower the investigating officer to submit an additional report after the cognizance had been taken. The order of the Special Judge was, therefore, clearly without jurisdictionq.