Madhya Pradesh High Court
Arun Bharti vs State Of Madhya Pradesh on 1 July, 2020
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
The High Court of Madhya Pradesh
Misc.Cri.Case No. 20337/2020
(Arun Bharti Vs. State of MP)
1
Gwalior, dated 01.07.2020
Shri Sameer Kumar Shrivastava, learned counsel for the
applicant.
Shri Rohit Mishra, learned Additional Advocate General, for
the respondent-State.
Matter is heard through video conferencing. IA No. 7082/2020, an application for urgent hearing, is taken up, considered and allowed for the reasons mentioned therein.
The applicant has filed this first bail application under section 438 of the Cr.P.C. for grant of bail.
The applicant apprehends his arrest in connection with Crime No.188/2020 registered at Police Station Civil Lines, District Datia in relation to the offences punishable under sections 3/7 of Essential Commodities Act, M.P. Motor Spirit and High Speed Diesel Licence and Control Order, 1980.
It is alleged by the prosecution that on 11.6.2020 complainant-Junior Supply Officer submitted a complaint that one Indian Oil dealership has been granted in favour of Sarita Bharti. As per prosecution, when on 27.4.2020 inspection was done at the petrol-pump outlet, it was found that sale of petrol and diesel was being done whereas the dealership was already cancelled. It was also found in the inspection that petrol and diesel was sold without licence and there was a difference in stock register, therefore, present case has been registered.
Learned counsel for the applicant submits that the case so registered is frivolous and vexatious. The present applicant is a chronic patient of kidney and liver and he has to undergo dialysis thrice a day at his house. The applicant is totally bed-ridden and is The High Court of Madhya Pradesh Misc.Cri.Case No. 20337/2020 (Arun Bharti Vs. State of MP) 2 not in a position to do his daily work. Recently he was admitted in the hospital. The documents in support of aforesaid arguments have been submitted. Now no custodial interrogation is required to be done. The present applicant is neither owner nor Manager of the aforesaid petrol-pump outlet and his wife is the owner of the said petrol-pump outlet and without informing her the dealership has been cancelled. The present applicant is aged around 56 years. No case is made out against the applicant. The offence under Section 3/7 of Essential Commodities Act is bailable and, therefore, the applicant cannot be arrested. It is further submitted that in the light of the judgment passed by Hon'ble Apex Court in Arnesh Kumar Vs. State of Bihar, (2014) 8 SCC 273, arrest of the present applicant is not at all necessary and looking to the COVID-19 pandemic, it would not be appropriate to send the applicant in jail. Hence, prays for grant of anticipatory bail. In support of his submissions, learned counsel for the applicant has placed reliance on the judgments in cases of Kamlesh Dhakad vs. State of MP (MCRC No. 6754/2016 decided on 2.8.2016); Mumtaj Khan vs. State of MP (MCRC No. 13374/2015, decided on 18.12.2015); and, Mayank Jain vs. State of MP (MCRC No. 13601/2016 decided on 2.12.2016).
Per Contra, learned counsel for the State has vehemently opposed the submissions of learned counsel for the applicant that the offence is registered under Section 3/7 of Essential Commodities Act and M.P. Motor Spirit and High Speed Diesel Licence and Control Order, 1980, which is punishable for seven years, therefore, the The High Court of Madhya Pradesh Misc.Cri.Case No. 20337/2020 (Arun Bharti Vs. State of MP) 3 aforesaid offence is non-bailable and cognizable. The alleged offence affects the society at large, therefore, prays for rejection of anticipatory bail to the applicant.
Learned counsel for the applicant further submits that as held by various judgments of this Court as well as other Courts having competent jurisdiction, the alleged offence has been declared bailable. Therefore, if this Court considers the offence registered as bailable then accordingly direction may be issued to the concerning authorities not to arrest the present applicant.
Heard rival submissions of learned counsel for the parties and perused the available record.
It is undisputed that the present case is registered under Section 3/7 of Essential Commodities Act and M.P. Motor Spirit and High Speed Diesel Licence and Control Order, 1980, for which the prescribed punishment may extend up to seven years. The allegations are that petrol and diesel were sold despite cancellation of dealership, without any licence and there was difference in stock register.
On the anvil of the aforesaid facts of the case, the following judgments passed by Coordinate Benches of this Court on various occasions are required to be considered at this stage :-
In Balwant vs. State of MP, reported in 2001 (3) MPLJ 414, Coordinate Bench of this Court has observed as under :-
"3. The first point which has been raised on behalf of the applicant is that the offence The High Court of Madhya Pradesh Misc.Cri.Case No. 20337/2020 (Arun Bharti Vs. State of MP) 4 punishable under Section 7 of the Act is bailable. Reliance has been placed on the order dated 15-10-1999 (by Hon'ble Dipak Misra, J.) in M.Cr.C. No. 6111 of 1999, Nemchand Agrawal Vs. The State of M.P., and a reported decision Dinesh Kumar Dubey Vs. State of M.P. [2000(1) MPHT 213] (by Hon'ble R.S. Garg, J.). During the course of hearing two more decisions have been cited, one dated 30-12-99 (by Hon'ble S.S. Saraf, J.) and the other dated 20-11-2000 in M.Cr.C. No. 7681/2000 (by Hon'ble S.C. Pandey, J.). These decisions have also taken the view that offence under under Section 7 of the Act is bailable.
4. Before considering the cases referred to above in default, it is necessary to look at the statutory provisions. Section 10A of the Act inserted by the Amending Act (No. 36 of 1967) provided that every offence punishable under the Act shall be bailable. By the Amending Act (Act No. 30 of 1974), the words "and bailable"
were deleted from Section 10A of the Act. The effect of the deletion of these words from Section 10A was that there remained no specific provision in the Act on the point whether the offences punishable under it are bailable or non- bailable. This attracted the applicability of Schedule I - Part II "Classification of offences against other laws". A reference to this Schedule shows that if an offence is punishable with imprisonment for three years and upwards that would be "non-bailable'. If the offence is punishable with imprisonment for less than three years or with fine only it would be bailable. According to Section 7(1) of the Act if any person contravenes any order made with reference to clause (h) or clause (i) of sub- section (2) of Section 3, he shall be punishable with imprisonment for a term which may extend to one year and in the case of any other order with imprisonment which may extend to seven years. The contravention of Clause 4 (c) of the The High Court of Madhya Pradesh Misc.Cri.Case No. 20337/2020 (Arun Bharti Vs. State of MP) 5 Control Order issued under Section 3 of the Act is punishable with imprisonment which may extend to seven years.
5. Then came the Essential Commodities (Special Provisions) Act, 1981 (Act No. 18 of 1981) by which the words "and non-bailable"
were added in Section 10A of the Act. This amendment was not a permanent feature of the Act. It was for a specified period and it was extended from time to time. The said amendment ultimately lapsed after the expiry of the period of the Essential Commodities (Amendment) Ordinance, 1998 which was promulgated on 25-4-1998. As the amendment which was incorporated in 1981 has come to an end by efflux of time, the words "and non- bailable" in Section 10A of the Act stand deleted. Therefore, Section 10A as amended in 1974 will hold the field now. As already discussed, the offences under Section 7(1) (a)(ii) and 7(2) of the Act which are punishable with imprisonment for seven years are non-bailable by virtue of the provisions of Schedule I Part II of the Code.
6. Now the cases relied upon by the learned counsel for the applicant should be considered. In Nemchand Agrawal Vs. State of M.P., the arguments mainly centred round the point whether the amendment which was made in 1981 to Section 10A of the Act and which was extended from time to time still subsists. After tracing the steps taken to renew the life of 1981 Amendment it has been held that it has lapsed. It was not brought to the notice of the Bench that by an amendment made in 1974 the work "bailable" was deleted from Section 10A of the Act and therefore the Schedule I - Part II to the Code should be referred to for determining the question whether the offence punishable under the Act is bailable or non-bailable. It was assumed that once it is shown that the amendment made in 1981 ceased to remain in The High Court of Madhya Pradesh Misc.Cri.Case No. 20337/2020 (Arun Bharti Vs. State of MP) 6 force the offence would become bailable. The question whether the offence in question is bailable or non-bailable was not considered in light of the relevant statutory provision in Schedule I (Part-II) of the Code.
7. In Dinesh Kumar Dubey Vs. State of Madhya Pradesh [2001(1) M.P.H.T. 213] the same point came up for consideration. In that case in Para 4 it has been observed : "in the absence of any other provisions showing the offence to be non- bailable, the offence would continue to be bailable in view of Schedule-II to the Code of the Criminal Procedure, 1973". But on reference to this Schedule it is clear that the offence punishable with imprisonment for more than three years is non- bailable. In the two other cases reliance was placed on the order in Nemchand Agrawal Vs. State of M.P., M.Cr.C. 6111 of 1999.
8. As demonstrated earlier the statutory legal position, as it exists today, is that the offence under Section 7(1)(a)(ii) of the Act which is punishable with imprisonment for seven years is non-bailable. The question is whether the view taken in the four cases referred to above should be followed by this Bench or there is a scope for clarification without referring the matter to a larger Bench. It is axiomatic that a decision is an authority for the question of law which it decides and not for a question which was not raised or considered. A sub-silentio order or assumption in disregard of a clear and unambiguous statutory provision is not a precedent. If a provision in a statute is construed or interpreted one way or the other that would be a precedent for the future and would be binding on coordinate Benches. But something which has been assumed and not decided cannot be considered as authoritative binding precedent.
The High Court of Madhya Pradesh Misc.Cri.Case No. 20337/2020 (Arun Bharti Vs. State of MP) 7
9. Where a certain point of law is not brought to the view of the Court in determining a cause, the decision is not a precedent calling for the same decision in a similar case in which the point is brought before the Court. (Law Lexicon by P.R. Aiyar edited by Justice Y.V. Chandrachud, 1997 edition page 1494). In Goodyear India Ltd. Vs. State of Haryana (AIR 1990 SC 781) it has been observed by the Supreme Court that the decision on a question which has not been argued cannot be treated as a precedent. If an ingredient of a section was neither argued nor was considered, the passing reference based on the phraseology of the section cannot be said to be the dictum.
10. Failure to consider a statutory provision is one of the clearest cases in which the Court is not bound to follow its own decisions. [Bonalumi Vs. Secretary of State, (1985 1 All ER 797]. In Young Vs. Bristol Aeroplane Co. Ltd. [(1944) 2 All ER 293] it has been observed by Lord Greene, M.R.: "Where the Court has construed a statute or a rule having the force of a statute, its decision stands on the same footing as any other decision on a question of law. But where the Court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the Court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam." It has been held by a Division Bench of this Court in United India Insurance Company Vs. Mahila Ramshree (1996 JLJ 691) that a judgment is per incuriam if the relevant law has not been considered and it has no binding effect.
11. In view of the above discussion it must be held that the cases falling under 7(1)(a)(ii) of The High Court of Madhya Pradesh Misc.Cri.Case No. 20337/2020 (Arun Bharti Vs. State of MP) 8 the Act being punishable with imprisonment which may extend to seven years read with Schedule I - Part II to the Code are "non- bailable". In the present case the alleged contravention of the Control Order is punishable under 7(1)(a)(ii) of the Act. The applicant who was found selling kerosene in excess of the price fixed under the Control Order does not on the facts and in the circumstances of the present case deserve anticipatory bail. The application for anticipatory bail is rejected."
The aforesaid judgment was passed in the year 2001, thereafter Coordinate Bench of this Court order in the case of Hariom vs. State of MP, reported in [2011(1) M.P.L.J. (Cri.) 267], wherein it is again observed that the offences under aforesaid sections are cognizable and non- bailable. It is true that the order passed by Coordinate Bench of this Court in Balwant (supra) has not been discussed in the case of Hariom (supra).
Thereafter, the Coordinate Bench of this Court in Santosh Sahare vs. State of MP (MCRC No. 2914/2015 decided on 7.5.2015) and Mumtaj Khan (supra) that the offences under Essential Commodities Act are bailable and cognizable but it is relevant to mention here that in Santosh Sahare (supra) the Coordinate Bench of this Court has not considered the earlier order passed in Banwant's case (supra) . Therefore, the orders passed in the cases of Santosh Sahare and Mumtaj Khan (supra) may not be treated as precedent as earlier orders were not discussed in these two orders, i.e., Santosh Sahare and Mumtaj Khan (supra).
Thereafter, in the year 2016 the Coordinate Bench The High Court of Madhya Pradesh Misc.Cri.Case No. 20337/2020 (Arun Bharti Vs. State of MP) 9 of this Court passed an order in Kamlesh Dhakad vs. State of MP (MCRC No. 6754/2016 decided on 2.8.2016), wherein the judgments in Dinesh Kumar Dubey and another vs. State of MP, reported in 2000 Legal Eagle (MP) 525, and Hariom vs. State of MP (supra) reported in 2010 Legal Eagle (MP) 134, were considered but again the earlier order passed in the case of Balwant (supra) has not been discussed. Thereafter, the Coordinate Bench of this Court has passed an order on 2.12.2016 in Mayank Jain vs. State of MP (MCRC No.13601/2016 and held that the offences under Essential Commodities Act are cognizable and non-bailable.
In the light of above discussion, it is apparent that the order passed in Balwant's case (supra) is precedent for the present case, wherein it is observed that the offences under Essential Commodities Act, which are punishable up to three years, are bailable as per First Schedule of the Code of Criminal Procedure and the offences punishable up to seven years are non-bailable as per First Schedule of the Code of Criminal Procedure. Therefore, the offence involved in the present matter falls under second category and will be treated as non-bailable and cognizable.
In the present case, the alleged offence affects the society at large, therefore, looking to the nature and gravity of the offence, this Court is not inclined to extend the benefit of anticipatory bail to the applicant-Arun Bharti.
The High Court of Madhya Pradesh Misc.Cri.Case No. 20337/2020 (Arun Bharti Vs. State of MP) 10 The application is accordingly dismissed. In view of the aforesaid order, IA No. 7355/2020, which is an application for interim bail, also stands dismissed.
Let e-copy of this order be sent to the concerning trial Court for information.
(Rajeev Kumar Shrivastava)
Pawan Kumar
(yog) 2020.07.02 Judge
11:18:25
+05'30'
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00'