LAKSHMI KANTA DEY 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 the cases. In all these cases, a point that required determination is if S.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 S.167(5) does not apply as offences under S.7(1)(ii), E.C. Act is not a summons case and learned Special Judges are not Magistrates as contemplated in S.167, Cr.P.C.

(2.) Mr. Roy and Mr. Sen Gupta appearing for the petitioners have submitted that S.12AA, Essential Commodities (Special Provision) Act, 1981, has provided in sub-sec.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 Cl. (d) of the section, exercise in relation to the person forwarded to it under Cl. (b), same power which a Magistrate having jurisdiction to try a case may exercise under 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 on 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 Ss.262 to 265, Cr.P.C., applicable as far as may be. Proviso to this clause states that 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 M. Sen Gupta and Mr. Roy submitted that it will appear from Cl. (f) that all offences under this Act have to be tried in a summary way and Ss.262 to 265, Cr.P.C., shall apply as far as may be. Section 262 appears in Chap. XXI, Cr.P.C., under the heading "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 conviction under the said chapter. The learned Advocates argued that by virtue of Cl. (f) of S.12AA all offences under the E.C. Act have been rendered to be summons case. They further submitted that Cl.(f) has determined the maximum term of imprisonment to be not exceeding two years. According to S.2(W), Cr.P.C., summons case means a case relating to offence not being a warrant case and according to Cl.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 have become a summons cases and accordingly S.167(5), Cr.P.C., applies in all force. Mr. Roy also submitted that Cl.(c) of S.12AA(1) has made S.167, Cr.P.C., applicable in such case without any reservation. Therefore a Special Judge under the Act is bound to apply S.167(5), Cr.P.C., in appropriate case pending before him. He also submitted that the fact that he is a Special Judge has no bearing in exercising powers under S.167 of the Code as he has been specifically vested with such power under Cl.(c) of S.12AA. Learned Advocate has relied on 1983 Cri LJ 39, Ram Briksh Jadab v. State of W.B. and (1981) 2 Cal HCN 173 : 1981 Cri LJ 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 punishable under S.7(1)(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 not competent to take cognizance on the challan submitted on completion of investigation beyond the period of six months after the arrest of the accuse persons. In the later case the Court held that the extension of time under S.167(5) has to be obtained before the expiry of the period of six months from the date of arrest. These two revisions have little relevance in the facts of this Case. Firstly, because the Ram briksh Jadav case it was held that a case under S.7(1)(a)(i), 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 offences triable under S.7(1)(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 Provisions) 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 have to be decided on the merits of their submissions.

(3.) I have no hesitation in my mind to agree with the submission of Mr. Roy that Cl.(c) of S.12AA(1) has vested the learned Special Judge with all the powers of S.167 of the Cr.P.C. Such power is not in any way restricted by the provision contained in this particular clause or any where in the Special Provision Act, 1981. Therefore there is no restriction on the Special Judge to exercise this Power under S.167(5) in appropriate cases namely, a summons case. The question is if all the offences triable by the Special Court under the E.C. Act have been rendered summons cases because of the Special Provision made in S.12AA is the direct question which I am required to deal with. Section 7 of the E.C. Act provides for punishment for contravention of any order made under S.3 of the said Act. Under Cl.(a)(i) maximum sentence is one year which can be imposed on contravention of an order made with reference to Cl.(h) or Cl.(i) of sub-s. (2) of S.3 of the said Act. Clause (h) provides for making an order for collecting any information or statistics for regulation of prohibition of the matter referred to earlier and Cl.(i) provides for making an order for an incidental or supplementary matters. Contravention of the rest of the orders under S.3 is punishable with imprisonment for a term which may extend to 7 years and shall also be liable to fine. As it stands offences punishable under S.7(1)(a)(ii) cannot be treated as a summons case. The argument that S.262 of the Cr.P.C. having been made applicable to all the cases under the E.C. Act before the Special Judge has made cases under the E C. Act summons cases is not tenable. Clause (f) of S.12AA has made all the offences under the E.C. Act triable in a summary way. In trial of such cases application of S.262 has been made for the purposes of determining the procedure to be applied and for no other purpose. Offences triable under the E.C. Act has become triable in a summary way not because of application of S.260, Cr.P.C., but because of Cl.(f) of S.12AA(1)(f) of the (Special Provisions) Act. Therefore application of S.262 does not make the offences under the E.C. Act a summons case. It only provides that even though such offences may not be a summons case even then the procedure specified in the Code for the trial of summons cases shall be applicable to them before the Special Judges.