Madhya Pradesh High Court
Rajesh Khatik vs State Of Madhya Pradesh on 4 February, 2022
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY
ON THE 4th OF FEBRUARY, 2022
MISC. CRIMINAL CASE NO. 3248 of 2022
Between :-
RAJESH KHATIK S/O SHRI RAJARAM
KHATIK, AGED ABOUT 51 YEARS,
OCCUPATION : SOCIETY MANAGER R/O
NEAR PANCHAYAT, GHUVARA, TEHSIL
BADAMALHARA, DISTT. CHHATARPUR
(M.P).
............ APPLICANT
(BY SHRI ANIL LALA, LEARNED COUNSEL FOR THE APPLICANT)
AND
STATE OF MADHYA PRADESH THROUGH
P.S. BHAGVA DISTRICT CHHATARPUR
(M.P.)
.............RESPONDENT
(BY SHRI RAVINDRA RAJPOOT, LEARNED P.L. FOR THE
RESPONDENT / STATE)
..........................................................................................
( Heard through Video Conferencing) This M.Cr.C. coming on for admission this date, the court passed the following :
Heard with the aid of case diary.
This is the first application under Section 438 of the Cr.P.C. for grant of anticipatory bail. Applicant Rajesh Khatik apprehends his arrest in connection with Crime No.11/2021, registered at Police Station Bhagwa, District Chhatarpur for the offence punishable under Section 3 /7 of Essential Commodities Act, 1955.
According to the prosecution story, on 15/01/2021, the government fair price shop operated by Bajrang Primary Consumer Cooperative Store was inspected by Junior Supply Officer Rakesh Kanhaua and Sunil Verma, 2 Tehsildar Ghuvara in the presence of applicant Rajesh Khatik, manager/ vendor of the shop and consumers, in which 304.85 quintal wheat, 257.19 quintal rice, 3.70 quintal salt, 80 Kg Sugar, 3.34 quintal gram and 132 liter kerosene was found less in the stock, which was meant for distributing to poor people under public distribution scheme and applicant misappropriated that food grains and kerosene. It was also found that the applicant did not distribute food grains and other articles to the consumers properly. On that police registered the crime No.11/2021 at Police Station Bhagwa, District Chhatarpur for the offence punishable under Sections 3 and 7 of Essential Commodities Act, 1955, in which applicant apprehends his arrest.
Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in the aforesaid offence. Even otherwise, it is alleged that the applicant violated Clause 10(4), 11 of M.P. Public Distribution System (Control) Order 2015 and no offence is prescribed under the Essential Commodities Act for violation of Clause 10(4) of the Public Distribution System (Control) Order 2015. Even under Clause 10(4) of M.P. Public Distribution System (Control) Order 2015, it is mentioned that the person shall be prosecuted under Section 7 of the Essential Commodities Act only where more than 10% of the goods are found short. There is no evidence on record to show that the food grains and kerosene which was found less in the shop was more than 10% of the monthly allocation. So, no offence under Section 7 of the Essential Commodities Act is made out against the applicant. Even otherwise under the Essential Commodities Act all the offences are bailable. Applicant is ready to cooperate in the investigation. In the event of arrest, his reputation will be ruined. Under these circumstances, the applicant prays for grant of anticipatory bail.
In this regard, he also placed reliance upon the order passed by the co-ordinate bench of this court in the case of Rakesh Kumar Vs State Of M.P. passed in M.Cr.C. No. 26957 /2020 dated 05/09/2020, Amit Yadav Vs State Of M.P. passed in M.Cr.C. No.11754/2021.3
Learned counsel for the respondent / State opposed the prayer and submitted that the applicant embezzled 304.85 quintal wheat, 257.19 quintal rice, 3.70 quintal salt, 80 Kg Sugar,3.34 quintal gram and 132-litre kerosene which was meant for distribution to poor people under the public distribution system. Other offences of similar nature are also registered against the applicant. Clause 16(2) of the M.P. Public Distribution System (Control) Order 2015 mandates that where it was found that the person committed a repeated violation of clause 13, he shall Mandatorily be Prosecuted for the offence under Section 7 of the Essential Commodities Act. All the offences punishable under Section 7 of the Essential Commodities Act are not bailable. The alleged offence is non-bailable.He further submitted that besides Essential Commodities Act, an offence under section 406 of IPC is also made out against the applicant which is also a non-bailable offence. The applicant has criminal past, so he should not be released on anticipatory bail.
The orders passed in the cases Rakesh Kumar Vs State Of M.P., Amit Yadav Vs State Of M.P.(Supra) as relied upon by the learned counsel of the applicant have no persuasive value because in these orders learned co-ordinate benches of this court did not consider the earlier judgement passed by the co-ordinate bench of this court in the case of Balwant Vs State of M.P. (2001) 3 MP LJ 414. In that case, learned co- ordinate bench of this court observed as under:-
"3. The first point which has been raised on behalf of the applicant is that the offence 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 v. The State of M.P. and a reported decision Dinesh Kumar Dubey v. State of M.P., 2001 (1) MPHT 213 (by Hon'ble R.S. Garg, J.). During the course of the hearing two more decisions have been cited, one dated 30-12-1999 (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 section 7 of the Act is bailable.4
4. Before considering the cases referred to above in detail, it is necessary to look at the statutory provisions. Section 10-A 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 10-A of the Act. The effect of the deletion of these words from section 10-A 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 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 10-A 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 10-A of the Act stand deleted. Therefore, section 10-A as amended in 1974 will hold the field now. As already discussed, the offences 5 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 in 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 v. State of M.P., the arguments mainly centred around the point whether the amendment which was made in 1981 to section 10-A 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 word "bailable" was deleted from section 10-A 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 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 v. State of Madhya Pradesh, 2001 (1) MPHT 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 v. 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 6 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 co-ordinate benches. But something which has been assumed and not decided cannot be considered as authoritative binding precedent.
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. v. State of Haryana, (1990) 2 SCC 71 : AIR 1990 SC 781, it has been observed by the Supreme Court that a 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 v. Secretary of State, (1985) 1 All ER 797. In Young v. Bristol Aeroplane Co. Ltd., (1944) 2 All ER 293, it has been observed by Lord Greene, M.R.C.P.:"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 7 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 v. Mahila Ramshree, 1996 JLJ 691 that a judgement 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 section 7(1)(a)(ii) of 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 section 7(1)(a)(ii) of the Act."
In the light of above mentioned judgment of the coordinate Bench of this court and the correct position of law Schedule I - Part II to the Code of the Criminal Procedure, 1973." shall be taken into consideration to determine the question whether the offence punishable under the Act is bailable or non-bailable.
It is alleged that applicant misappropriated 304.85 quintal wheat, 257.19 quintal rice, 3.70 quintal salt, 80 Kg Sugar,3.34 quintal gram and 132 litre kerosene which was meant for distribution to poor people under the public distribution system. Other offences of similar nature are also registered against the applicant. So, looking to the facts and circumstances of the case and the contention of learned counsel for the State, this court is not inclined to grant anticipatory bail to the applicant.
Hence, the M.Cr.C. is rejected.
(Rajeev Kumar Dubey)
sarathe Judge
Digitally signed by
NAVEEN KUMAR
SARATHE
Date: 2022.02.08
17:44:52 +05'30'