Bombay High Court
Shrirang Madhavrao Magar vs The State Of Maharashtra on 4 July, 2019
Author: V.L. Achliya
Bench: V.L. Achliya
797.19WP.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.797 OF 2019
SHRIRANG MADHAVRAO MAGAR
VERSUS
THE STATE OF MAHARASHTRA
...
Mr.P.S. Dighe, Advocate for petitioner.
Mr.K.D. Mundhe, A.P.P. for respondent/State
...
CORAM: V.L. ACHLIYA,J.
DATE : 04.07.2019
ORAL ORDER:
The petitioner has filed this Petition challenging the order rejecting the application filed under Section 239 of the Code of Criminal Procedure seeking discharge. The order passed by the learned Magistrate came to be confirmed in Revision Petition filed by the petitioner.
2. During the course of submission, learned counsel for the petitioner submits that the case is to be tried summarily by the Magistrate in view of the provisions contained in Section 12-A of the Essential Commodities Act, 1955. The Section 12-A of the Essential Commodities Act, 1955 reads thus :-
::: Uploaded on - 10/07/2019 ::: Downloaded on - 13/07/2019 04:36:31 :::797.19WP.odt 2 "12-A. Power to try summarily.-
(1) If the Central Government is of opinion that a situation has arisen where, in the interests of production supply or distribution of any essential commodity not being an essential commodity referred to in clause (a) of sub-section (2) or trade or commerce therein and other relevant considerations, it is necessary that the contravention of any order made under section 3 in relation to such essential commodity should be tried summarily, the Central Government may, by notification in the Official Gazette, specify such order to be a special order for purposes of summary trial under this section, and every such notification shall be laid, as soon as may be after it is issued, before both Houses of Parliament:
Provided that -
(a) every such notification issued after the commencement of the ::: Uploaded on - 10/07/2019 ::: Downloaded on - 13/07/2019 04:36:31 ::: 797.19WP.odt 3 Essential Commodities (Amendment) Act, 1971, shall, unless sooner rescinded, cease to operate at the expiration of two years after the publication of such notification in the Official Gazette;
(b) every such notification in force immediately before such commencement shall, unless sooner rescinded, cease to operate at the expiration of two years after such commencement:
Provided further that nothing in the foregoing proviso shall affect any case relating to the contravention of a special order specified in any such notification if proceedings by way of summary trial have commenced before that notification is rescinded or ceases to operate and the provisions of this section shall continue to apply to that case as if that notification had not been rescinded or had not ceased to operate.
(2) Notwithstanding anything contained in the Code of Criminal ::: Uploaded on - 10/07/2019 ::: Downloaded on - 13/07/2019 04:36:31 ::: 797.19WP.odt 4 Procedure, 1973 (2 of 1974) all offences relating to -
(a) the contravention of an order made under section 3 with respect to-
(ii) foodstuffs, including edible oilseeds and oils; or
(iii) drugs; and
(b) where any notification issued under sub-section (1) in relation to a special order is in force, the contravention of such special order, shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:
Provided that, in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year:::: Uploaded on - 10/07/2019 ::: Downloaded on - 13/07/2019 04:36:31 :::
797.19WP.odt 5 Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall, after hearing the parties, record an order to that effect and thereafter recall any witnesses who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
(3) Notwithstanding anything to the contrary contained in the Code of Criminal Procedure 1973 (2 of 1974), there shall be no appeal by a convicted person in any case tried summarily under this section in which the Magistrate passes a sentence of imprisonment not exceeding one month, and of fine not exceeding two thousand rupees whether or not any order of forfeiture of property or an ::: Uploaded on - 10/07/2019 ::: Downloaded on - 13/07/2019 04:36:31 ::: 797.19WP.odt 6 order under section 452 of the said Code is made in addition to such sentences, but an appeal shall lie where any sentence in excess of the aforesaid limits is passed by the Magistrate.
(4) All cases relating to the contravention of an order referred to in clause (a) of sub-section (2), not being a special order, and pending before a Magistrate immediately before the commencement of the Essential Commodities (Amendment) Act, 1974, and, where any notification is issued under sub- section (1) in relation to a special order, all cases relating to the contravention of such special order and pending before a Magistrate immediately before the date of the issue of such notification, shall, if no witnesses have been examined before such commencement or the said date, as the case may be, be tried in a summary way under this section, it shall be forwarded to a Magistrate so competent."
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3. Thus if the proceeding is to be conducted in a summary manner then the Magistrate is required to follow the procedure laid down under Chapter XXI of the Code of Criminal Procedure. In that view, the application seeking discharge U/Sec. 239 of the Code of Criminal Procedure is not maintainable unless the case is tried as Warrant Triable Case.
4. Learned A.P.P. is directed to file affidavit to clarify as to whether Notification as contemplated under Section 12-A of said Act is published in gazette to conduct the proceedings in a summary manner.
5. Learned counsel urge to call record and proceedings of the case to ascertain the procedure the Magistrate has adopted in conduct of case.
6. Call Record and Proceedings.
7. Stand over to 19th July, 2019.
[V.L. ACHLIYA] JUDGE SGA ::: Uploaded on - 10/07/2019 ::: Downloaded on - 13/07/2019 04:36:31 :::