SARJUG SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner has filed the present application for quashing the order dated 6-8-1988, passed by the Special Judge (under E. C. Act), Madbepura, in Special Case No. 21 of 1986, taking cognizance under Section 7 of the Essential Commodities Act and Section 409 of the Indian Penal Code, against the petitioner and three others.

(2.) Sri Harindra Nand, Executive Magistrate, Madhepur lodged a first information report on 20th August, 1986 at 6 P, M. alleging, inter alia, that the Sub-divisional Magistrate, Madhepura, ordered for an enquiry oa the petition filed by one Surendra Kumar with regard to the irregularities committed in construction of the school buildings falling within Sakarpura Gram Panchayat under National Rural Employment Scheme. The Sub-Divisional Magistrate entrusted enquiry to him and he enquired Into the matter and found that under the said Scheme a proposal to construct a building for primary school was approved and the petitioner, who was Panchayat Sewak at the relevant time in Madhepura Block, was entrusted with the construction work of the said building. Rs. 9,000/- was given as advance for purchasing iron rods, for the construction of the building in qusstion. The iron rods weighing 256 Kgs. purchased for the construction of the said building were sold in the black market by the petitioner in conspiracy with the proprietor of the Madhepura Iron Traders. During inspection he also found that Madhepura Iron Traders had not issued cash-memo or granted receipt with regard to the aforesaid 256 Kgs. iron rods found in its premises He also found that no price list was displayed at the business premises of the iron traders and, accordingly, he lodged a written report and on the basis of which Madhepura Police registered a case sgainst the petitioner and others for the offence under Section 7 of the Essential Commodities Act for the violation of the provisions of Bihar Essential Articles (Display of Price and Stock) Order, 1977 (hereinafter referred to as 'the Display Order') as well as Sections 409,414 and 411 of the Indian Penal Code. The Police after investigation submitted charge sheet under Section 7 of the E C Act and Section 409 of the Penal Code, and, thereafter, the Special Judge passed the impugned order.

(3.) Learned counsel appearing for the petitioner raised two points Firestly, that the Special Judge, appointed under the E. C. Act, is not competent to take cognizance under Section 409 of the Penal Code in view of the special provision of Section 12-AA (2) of E. C, Act, which provide inter alia, that the special court may also try an offence other than an offence under E. C, Act, with which the accused may be charged under the Code of Criminal Procedure at the same trial provided such offence under the relevant law for the time being in force is triable in a summary way As the offence under Section 409 of Penal Code is not triable in a summary was the cognizance taken with regard to the said offence is vitiated in law Secondly, that no sanction was taken for the prosecution of the petitioner under the provisions of the Display Order. petitioner