LAKHAN PRASAD GUPTA Vs. STATE OF BIHAR

JUDGEMENT

(1.) ON 28.5.1974 the Supply Inspector, Aurangabad after inspecting the business premises of the petitioner, which was a flour and oil mill in Aurangabad town, filed a first information report after investigation of which the police submitted final report on 18.11.1977, the operative portion of which says that there is insufficient evidence in the case. The learned Chief Judicial Magistrate differed with the final report and by his order dated 10.5.1978 took cognisance of the offence and transferred the case to the Sub -divisional Judicial Magistrate, Aurangabad for disposal. He has after considering other connected papers on the record disagreed with the opinion of the Investigating Officer. It is this order dated 10.5.1978 which is impugned in this application and which the petitioner prays to be quashed. It is well settled that a report submitted by the public servant under Section 11 of the Essential Commodities Act must contain the facts constituting the offence. If that provision of Section 11 is not compiled with the Magistrate has no jurisdiction to take cognizance. The satisfaction of the public servant is essential. It is well settled by now that the reason behind the provisions of Section 11 is that unscrupulous traders may not harass a dealer for their personal reason and a satisfaction of a public servant has been provided as a protection against mala fide prosecution and if that satisfaction itself is absent then the court is precluded to substitute its own satisfaction for that of the public servant. The court, therefore, can only examine what is filed before it and not the material which was filed before the police who are not empowered to take cognisance and if the report by a public servant indicates that the public servant is not satisfied that any offence has been made out then the court cannot invoke the provisions of Section 190 (1) (a) and (b). To that extent Section 190 (i) (a) and (b) is restricted by the provisions of Section 11 of the Essential Commodities Act. I am supported in my view by the decisions in Criminal Misc. No. 985 of 1974 disposed of on 4.8.1976 (reported in 1977 Cri LJ NOC No. 140 p. 73) and 1968 Pat LJR 36.

(2.) IN the result the prosecution is quashed and the application is allowed. Application allowed.