SMT. USHA SINHA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This application under section 482 Criminal Procedure Code is directed against the order dated 28.8.2000 passed by the learned Special Judge, Balangir taking cognisance of offence under Section 7, 8 and 9 of the Essential Commodities Act, 1955 against the petitioner and other accused persons.

(2.) A prosecution report was submitted stating that the petitioner was appointed as a Storage Agent for Bongamunda Block for the year 1997-98 by the District Manager, Orissa State Civil Supplies Corporation Limited, Balangir. The Storage Agency of the petitioner was allowed to be continued for the year 1998-99 and accordingly licences were issued under the Orissa Rice and Paddy Control Order, 1965 for both the years 1997-98 and 1998-99. Accused No. 2 who is not a petitioner before this Court is the husband and power of attorney holder of the petitioner. He was looking after all the work in respect of the Storage Agency on behalf of the petitioner. Certain allegations were received against the petitioner from the President, Zilla Parishad, Balangir and on the basis of such allegations an enquiry was conducted by the Civil Supplies Officer, Balangir. The Marketing Inspector, Civil Supplies Corporation, Balangir also accompanied the Civil Supplies Officer and conducted enquiry. During the enquiry it was revealed that the Secretary, Bangomunda Gram Panchayat was shown to have been issued with rice by the petitioner as Storage Agent as per the issue register maintained by the Storage Agent to the tune of 255 quintals of rice, are stated to have been issued on 7.4.1998 and on 27.4.98. The Secretary of the Gram Panchayat denied to have received the said stock and on verification of the accounts maintained by the Secretary, Gram Panchayat it was noticed that stock had not been entered in the stock register. Therefore, the Civil Supplies Officer was of the view that the shortage of 255 quintals of rice as mentioned in the issue register maintained by the petitioner had not at all been supplied to the Secretary of the concerned Gram Panchayat. During enquiry several other irregularities were also found to have taken place and upon verification of all the relevant records and on completion of enquiry, the prosecution report was submitted against the petitioner and some other accused persons alleging the offence to have been committed under Sections 7, 8 and 9 of the Essential Commodities Act, 1955. On the basis of the prosecution report the learned Special Judge took cognisance of the said offences in the impugned order.

(3.) Shri Dhal, learned counsel for the petitioner, challenges the impugned order taking cognisance on the ground that the Special Judge had no jurisdiction to take cognisance. According to Sri Dhal, the Essential Commodities Act, 1955 came into force with effect from 1.4.1995. As the Act was insufficient in controlling the supply, distribution, trade and commerce, it was amended in the year 1981 by Amending Act No. 18 of 1981 and Section 12(A.A.) was inserted into the Act with a non-obstinate clause. Shri Dhal further submitted that as per Section 12(A.A.) (1) (B) of the Act Special Court upon perusal of the police report and the facts constituting an offence under the Act can take cognisance of that offence without the accused being committed for trial. Section 11 of the Act prescribes that no Court shall take cognisance for offence punishable under the Act except on a report in writing of the facts constituting the said offence by a person who is a public servant as defined in Section 21 of the Penal Code. Shri Dhal submitted that the Amending Act was to remain in force for a period of five years, where after it was extended for another period of five years with effect from 1987 under the Essential Commodities (Special Provision) Continuance Act, 1987. Again the Amending Act was extended for a further period of five years in the year 1992. After expiry of the said period, for the first time in the year 1997 an Ordinance was made in the name and style of "The Essential Commodities (Special Provision) Ordinance, 1997 (Ordinance No. 21 of 1997) for a period of one year. After expiry of the period of the Ordinance, the Essential Commodities (Special Provision) Ordinance, 1998 was promulgated extending the period for one year. After expiry of the said Ordinance, no further Ordinance has been made and the term of second Ordinance No. 13 of 1998 has expired with effect from 8.7.1998. In absence of any ordinance or amendment to the principal Act, the principal Act remains in force. As per the principal Act, 1955, power with regard to taking cognisance of offence under the Act lies in Section 11 of the Act and the said power lies with the Magistrate, whereas under the Amending Act power lies with the Special Judge created under the statute. Since the principal Act is in force, it is the Magistrate who is empowered to take cognisance and not Special Judge. Accordingly, Sri Dhal submitted that the Special Judge had no jurisdiction to take cognisance of the offence as mentioned above. Learned Additional Government Advocate appearing for the State submitted that the Ordinance, 1998 was in force when the offence was committed. Therefore, Special Judge has the jurisdiction to take cognisance.