STATE Vs. PRAKASH CHANDRA AGARWALLA

JUDGEMENT

(1.) THE opposite party Prakash Chandra Agarwalla holds a licence under the Orissa foodgrains Dealers' Licensing Order, 1964 (hereinafter referred to as the Order)and was dealing in wheat and wheat-products. The Inspector, Vigilance, Titlagarh inspected his shop on 28-8-1965 and found some irregularities in maintenance of his account books as the books did not show the correct stock of wheat held by him by that day. The opposite party also did not submit fortnightly returns as required under Clause (4) of the Licence. On the aforesaid allegations, the inspector, Vigilance submitted a prosecution report against him under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) for contravening the conditions of the licence issued to him. In course of search of the shop of opposite party about 17 quintals and 68 kilograms of wheat were found and seized. The opposite party appeared in Court and filed an application that he is entitled to be supplied with necessary documents under Section 173, Criminal P. C. This prayer was rejected by the learned Magistrate being of the view that there was no investigation of the case by the Vigilance Inspector and prosecution report was submitted as a Non-F. I. R. case. Another petition filed by the opposite party for release of the wheat to him was also dismissed. As against the two orders passed by the Magistrate, the Sessions Judge was moved in revision and he made a reference to this Court recommending that the two orders might be quashed. In criminal reference No. 6 of 1966, Das, J. ordered that the seized stock of wheat, should be released and sold through the opposite party or some other control dealers and the sale proceeds be deposited in Court until disposal of the case against the opposite party. The question as to whether papers should be supplied to the opposite party under section 173, Criminal P. C. was not specifically dealt with in the judgment, The order, however, was the reference was accepted. On receipt of this order, the learned Magistrate directed the prosecution to supply necessary papers to the opposite party. The prosecution appears to have taken the stand that there was no such direction in the order passed by the High Court and that an opportunity might be afforded for hearing of this question and 9-1-1967 was fixed for hearing the objections raised by the prosecution. On 9-1-1967, the learned Magistrate discharged the opposite party under Section 251-A, (2), Criminal P. C, on the ground that despite the orders of the High Court, papers under Section 173, criminal P. C. had not been, supplied to the accused. On 16-1-1967, the Inspector, Vigilance filed the necessary papers under Section 173, Criminal P. C. and also submitted an application stating that he could not do so on the last date of hearing, namely 9-1-1967, as he was absent and prayed that the order dated 9-1-1967 might be recalled. The learned Magistrate allowed the application and recalled the order passed on 9-1-1967. On 4-3-1967, the opposite party filed an application under Section 540-A, Criminal P, C, stating that the order dated 16-1-1967 passed by the learned Magistrate recalling the order dated 9-1-1967 is without jurisdiction, that this being a summons case, the order of discharge recorded on 9-1-1967 amounts to an order of acquittal and that therefore, the learned Magistrate had no power either to recall it or to set it aside. By order dated 26-4-1967, the learned Magistrate accepted the aforesaid contention of the opposite party and rejected the prayer of the prosecution to restore the case to file. It is against this order dated 26-4-1967 that the present revision application has been filed.

(2.) MR. Ramdas appearing for the State puts forth the following contentions in support of the application:- (1) The opposite party has contravened an order made with reference to clause (d) of Sub-section (2) of Section 3 of the Act, the penalty prescribed for which under Section 7 (1) (a) (ii) of the Act is imprisonment for a term which may extend to five years and consequently this is a warrant case and the order dated 9-1-1967 passed by the Magistrate is therefore, an order of discharge and not of acquittal. (2) As against an order of discharge, a superior Court may no doubt be moved to set it aside. But it is also open to the prosecution to submit a fresh complaint against the accused. In such circumstances, there can be no reason why the Magistrate himself cannot exercise his Inherent jurisdiction to review his own order and rehear the case. In this view, the order passed by the Magistrate on 16-1-1967 is legal. Mr. R. C. Ram, appearing for the opposite party submits- (1) that the prosecution of the opposite party is for contravention of the order made with reference to Clause (i) of Subsection (2) of Section 3 of the Act, the penalty for which is imprisonment for a term which extends to one year and as such it is a summons case, and an order of discharge passed against an accused to such a case amounts to an order of acquittal which having become final cannot be set aside by the magistrate by his subsequent order dated 16-1-1967, and (2) that assuming that it is a warrant case and the order passed on 9-11967 is only an order of discharge, the only remedy available to the prosecution is to approach the superior Court for setting aside the order of discharge and the Magistrate has no inherent jurisdiction to set aside that order. These contentions require careful consideration.

(3.) TO appreciate the contentions of the parties, it is necessary to quote the relevant provisions of Sections 3 and 7 of the Act,