SIDDHESWARI DISTRIBUTORS Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THESE five Revisional applications are taken up together for consideration as the same point of law is involved in all these cases. In all these cases, a point that required determination is if sec. 167 (5) Cr. P. C. applied to cases for prosecution of offences under the provision of Essential commodities Act. Learned Special judges have found that section 167 (5) does not apply as offences under sec. 7 (i) (a) (ii) of the e. G. Act is not a summons case and learned special Judge are not Magistrate as contemplated under section 167 Cr. P. C.

(2.) MR. Roy and Mr. Sen Gupta appearing for the petitioners have submitted that section 12aa of the Essential Commodities (Special provision) Act, 1981 has provided in sub section 1 (a)that all offences under the Act (meaning E. C. Act) shall be triable only by the special court constituted according to the provisions of the said Act. Clause (c) of the said sub section has provided that the special court may subject to the provisions of clause (d) of the section, exorcise in relation to the person forwarded to it under clause (b) same power which a Magistrate having jurisdiction to try a case may exercise u/s 167 of the code in relation to an accused person in such case who has been forwarded to him under that section. Clause (d) deals with release of the accused on bail. Clause (e) authorises the special court to take cognizance of an offence an perusal of the police report of the facts constituting an offence without the accused being committed to it for trial. Clause (f) has made all offences under the E. C. Act triable in a summary way and has made the provisions of sec. 262 to 265 of the Cr. P. C. applicable as far as may be Proviso to this clause states that on any conviction in a summary trial under this section, it shall be lawful for the special court to pass a sentence of imprisonment for a term not exceeding two years. Placing their reliance on the provisions stated above both Mr. Sen Gupta and Mr. Roy submitted that it will appear from clause (t ). that all offences under this Act has to be tried, in a summary way and sec. 262 to 265 of the Cr. P. C. shall apply as far as may be. Section 262 appears in chapter XXI of the Cr. P. C. under the hearing ('summary Trial ). Section 262 provides for proceeding for summary trials. Procedures specified in the Cr. P. C for the trial of summons case shall be followed in a summary trial. It has also provided that no sentence of imprisonment for a term exceeding three months shall be passed in the case of any convection under the said chapter. The learned Advocate argued that by virtue of clause (f) of sec. 12aa all offences under the E. C. Act have been rendered to be summons case. They further submitted that clause (1) has determined the maximum term of imprisonment to be not exceeding two years. According to sec. 2 (W)of the Cr. P. C. summons case means a case relating to offence not being a warrant case and according to the clause 2 (X) warrant case means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. According to them because of this provision referred to above all the cases triable by the special Judge has become a summons case and accordingly section. 167 (5) of the Cr. P. C. applies in all force.

(3.) MR. Roy also submitted that clause (c) of sec 12a (1)has made section 167 of the Cr. P. C. applicable in such case without any reservation. Therefore a special Judge under the act is bound to apply sec. 167 (5) of the Cr. P. C. in appropriate case pending before him. He also submitted that the fact he is a special Judge has no bearing in exercising powers u/s. 167 of 'the code as he has been specifically vested with such power under clause (c) of sec. 12aa Learned Advocate has relied on 1981 (2) Calcutta High Court notes page 173 Ram Brijesh Jadav v. The State and 81 Cr. L. J. , page 1288 Ram Kumar Keshori v. State. These two cases were before the coming into operation of the Essential Commodities (special provision) Act, 1981. In the first case it was held that an offence publishable u/s. 7 (i) (a) (i)is triable as a summons case and the continuation of investigation beyond the period of 180 days was illegal and the Magistrate was net competent to take cognizance on the challan submitted on. completion of investigation beyond the period of six months after the arrest of the accused persons. In the later case the court held that the extension of time u/s. 167 (5) has to be obtained before the expiry of the period of six months from the date of arrest. This two decisions have little relevance in the facts of , this case. Firstly, because in the Rambrikha Jadav case it was held that a case under section 7 (i) (a) (i) of the E. C. Act is summons case. This decision is strictly according to the provision of the Cr. P. C. The maximum punishment under this section is one year. Obviously offence triable u/s 7 (i) (a) (i) is a summons case as defined by the Cr. P. C. I may -mention again that decision was arrived at when the special provision Act did not come into force. With regard to Ram Kumar Keshori's case there is no dispute that the period can be extended beyond six months only if a prayer is made before the statutory period of six months has expired. As it appears the contentions raised by the learned advocate in this case has to be decided on the merits of their submissions.