MALAY BANERJEE Vs. STATE

JUDGEMENT

(1.) The petitioner who was one of the five accused in a case started against them under Section 7(1)/10 of the Essential Commodities Act, has obtained the present Rule against the order of the trying Magistrate directing trial in accordance with the procedure laid down in Section 251A of the Criminal Procedure Code. The learned Magistrate relied upon two decisions of this Court, Nanakraj Pandit v. The State, 1961 (1) Cri LJ 644 (Cal) and an unreported decision in the case Ramprosad Gupta v. State of West Bengal, decided by S.K. Sen and Amaresh Roy, JJ. on May 31 1962 (Cal) as authorities for his decision on the point.

(2.) The five accused in the case were arrested by the police in course of the investigation of the offence concerned and on 21-12-1985 a prosecution report was submitted against them. On February 14, 1968, copies of documents as contemplated in Section 178 (4) of the Code were furnished. Thereafter the question arose as to whether the procedure under Section 251-A or that under Section 252 of the Code should be followed. After hearing both parties the learned Magistrate came to the finding which is the subject matter of the present Rule.

(3.) Mr. Talukdar appearing in support of the Rule contended that cognizance of the offence having been taken on the report in writing of a police officer under Section 11 of the Essential Commodities Act and not on a police report under Section 173 of the Code, the learned Magistrate should have come to the finding that the procedure under Section 252 of the Code was the proper procedure to follow for the purpose of the trial. He argues that although the two decisions of this Court referred to by the learned Magistrate do support the order passed by him, those decisions require reconsideration in view of the decision of the Supreme Court in the case Bhagwati Saran v. State of U. P.. So far as this Supreme Court decision is concerned Mr, Talukdar refers particularly to the observation in paragraph 17 of the Judgment as reported, to the effect that: