Patna High Court
Manik Lal Martia vs The State Of Bihar on 3 May, 1950
Equivalent citations: AIR1950PAT500, AIR (31) 1950 PATNA 500
ORDER Jamuar, J.
1. In this application it is sought to delete a charge framed against the petitioner, and in order to appreciate the argument the following facts relevant to the point may be stated.
2. The petitioner is a dealer in cloth and has a shop in Patna City. On 13th April 1949, a complaint was filed before the Sub-divisional Officer of Patna City by Diva Kanta Jha, a Supply Inspector of Patna, against the petitioner and three others. It was alleged in the complaint that on 11th April 1949, at about 6 P. M., one Rameshwar Prasad had made a report that saris in the shop of the petitioner were being sold at a price higher than the controlled price. On this report, D. K. Jha informed the District Supply Inspector who signed five Government currency notes of Rs. 10 each and gave them to Rameshwar Prasad who was asked to make some test purchases from the petitioner's shop. Rameshwar Prasad went there and returned with the information that he had purchased three pairs of saris at a price higher than the controlled price and further that he had not been granted any cash memo. Thereafter, D. K. Jha, together with some others, entered into the shop of the petitioner and made enquiries and he was informed that no such sale had taken place. It is further alleged that when he demanded the production of the cash memo book, registers and other Bahis, his demand was refused. So, he put four seals on the locks of the shop in the presence of certain witnesses and the petitioner was given an order in writing to take care of the seals. On the next morning, however, i.e., on 12th April 1949, he was informed that the seals had been broken. He then went to the shop and found that the seals had actually been broken, He reported the matter to the District Magistrate who deputed a Deputy Magistrate to make an enquiry and ordered D. K. Jha to file a complaint before the Sub-divisional Officer, Patna City.
3. In the complaint the accused named therein, including the petitioner, were alleged to have committed these offences, namely, (1) under Clause 9 (1), Bihar Cotton Cloth and Yarn (Control) Order, 1948, for having sold cloth at a price higher than that fixed by the Controller, (2) under Clause 10 (b) of the same Order for the refusal to produce the Bahis and other papers which were required to be produced; and they were also alleged to have committed offences under Sections 175 and 188, Penal Code.
4. On receipt of this complaint, the learned Sub-divisional Magistrate of Patna City took cognizance of the case and issued summonses under Clause 9 (1) and 10 (b), Bihar Cotton Cloth and Yarn (Control) Order, 1948. read with the Essential Supplies Act of 1916, as amended in the year 1949, as also under Sections 175 and 188, Penal Code.
5. Eventually the case was transferred to the Court of Mr. R. P. Lakhaiyyar, Magistrate, First Class, Patna City, for disposal. But then later, the case was transferred to the Court of Mr. A. P. Sinha, Munsif-Magistrate, Patna, on 30th August 1949, for disposal and is now pending in that Court.
6. A number of witnesses were examined by Mr. A. P. Sinha by 3rd February 1950. On 4th February 1960, D. K. Jha, the Supply Inspector, filed an application in the Court which he stated to be "in continuation of my report filed on 18th April 1949, in this connection." His report dated 18th April 1949, was the complaint upon which the Sub-divisional Magistrate of Patna City had taken cognizance of the case. In his further report, dated 4th February 1950, D, K, Jha stated that on 23rd July 1949, on the opening of a certain hag in which some articles as well as some papers belonging to the petitioner had been kept, it was found that the stock registers of dhoties, saris and other cloths had not been maintained up to date and that certain cloths received by the accused under a number of Bijaks mentioned therein had not been entered in the stock register. This report concluded with a prayer in the following words:
"As the account books were not maintained up to date this may also be enquired into and tried as this is an offence under the Bihar Cotton Cloth and Yarn (Control) Older, 1918, under which the present trial is going on."
7. This report having been received by Mr. A. P. Sinha, Munsif-Magistrate, he recalled D. K. Jha into the witness-bos on the same date and this witness was further examined by the prosecution. The witness proved his report of that date, the relevant contents of which have just been mentioned, and the report was exhibited as Ex. 13. The witness stated :
"As the record of this case was in the High Court, I could not file this report (Ex. 13) at the earliest stage, The fact that the account was not up to date was detected on 23rd July 1949. and thereafter as the record was all along with the Hon'ble High Court, I could not get any opportunity to file the same. After the persual of the record of this case, the A. P. P. and the D, S. I, Instructed me to file this petition."
It appears from the record that even on 23rd July 1949, a petition had been filed to the effect that the accused had not kept their registers up-to-date and this had been discovered on examining the registers and other papers which had been seized from the shop of the accused. This petition was filed when the case was in the Court of Mr. Lakhaiyyar and it was prayed that the registers mentioned in that petition may be detained and a report be submitted of the facts to the S. D. O. for necessary action. The petition is EX. 20 and it was kept on the record.
8. After D. K. Jha had been recalled on 4th February 1950, and his further evidence taken, charges were framed against the petitioner. The charges were under Clauses 9 and 10, Bihar Cotton Cloth and Yarn (Center) Order, 1946, read with the Essential Supplies Act of 1947, as also under Clause 3, Bihar Cotton Cloth and Yarn (Control) Order, 1948. Clause 3 reads as follows :
''Save as provided in Sub-clause 3 of Clause 5, no person shall after the commencement of this order, carry on business as a dealer except under and in accordance with the terras and conditions of a licence granted by the licensing authority in form B."
Condition (2) of the licence granted to the petitioner is in these words :
"A register of daily transactions in the form below shall be correctly maintained by wholesale and retail dealers separately for (a) dhoties and saris by Nos. (b) cloth normally sold by yardage in yarda and that by weight in lbs. (c) other materials sold . . . . (d) yarns by counts in weights"
and condition (3) is as follows:
"All licensees (except such licensees as have been licensed as hawkers) shall issue to every customer a correct receipt, cash or credit memo, or invoice as the case may be. ..."
9. It will be noticed that no contravention of Clause 3, Bihar Cotton Cloth and Yarn (Control) Order, 1918, read with condition 2 of the licence granted to the petitioner had been alleged in the original complaint filed by D. K. Jha before the Sub-divisional Officer of Patna City on 13th April 1949, upon which the Sub-divisional Officer had take a cognizance of the case. A breach of condition No. 2 of the licence, namely the failure to maintain a proper register of daily transactions in the form prescribed was alleged in the petition (Ex. 20) dated 23rd July 1949, filed before Mr. Lakhaiyyar and then in the further report of D. E. Jha filed on 4th February 1950, before Mr. A. P. Sinha, Munsif-Magistrate. It was after this report dated 4th February 1950, that the Munsif-Magistrate included the charge under Clause 3, Bihar Cotton Cloth and Yarn (Control) Order, 1943, for a breach of Condition No. 2 of the licence.
10. The argument of Mr. Khaleel Ahmad who appeared for the petitioner, is that this charge must be deleted on the ground that Mr. A. P. Sinha, Munsif Magistrate, had no jurisdiction to frame a new charge under Clause 3, Bihar Cotton Cloth and Yarn (Control) Order, 1948.
11. His argument was that under Section 11, Essential Supplies Act of 1916, no Court can take cognizance of any offence punishable under this Act, except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in Section 21, Penal Code. In the present case, the report filed by D. K. Jha on 4th February 1953, before Mr. A. P. Sinha, Munsif-Migistrate was, according 60 Mr. Khaleel Ahmad a "further complaint" by that public servant and Mr. A. P. Sinha, Munsif-Magistrate, was not empowered to entertain that complaint and to take cognizance of that offence. The proper Court to take cognizance of it was the Court of the Sub-divisional Officer and not the Court of the Munsif-Magistrate. In these circumstances, Mr. Khaleel Ahmad argued that the charge under Clause 3, Bihar Cotton Cloth and Yarn (Control) Order, 1948, in respect of not maintaining registers properly should be deleted, as having been framed by a Court which was not competent to frame that charge. This present application is accordingly in respect of this grievance only.
12. I am not inclined to accept this argument. Taking cognizance of an offence is one thing and framing a charge upon evidence adduced at a later stage is another thing. The Sub-divisional Magistrate, having taken cognizance of this case upon a complaint before him, transferred this case to another Court for trial, and this Court under Section 254, Criminal P. C. had to proceed to frame the charge or charges. This section is in the following terms :
"If, when such evidence and examination have been taken and made, or at any previous stage of the case, the Magistrate is of opinion that there is good ground for presuming that the accused has commuted an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused."
13. Once, therefore, the Sub-divisional Magistrate took cognizance of the case and transferred it to another Court for trial, this Magistrate can frame such charge or charges against the accused before him for any offence or offences as disclosed by the evidence. If, therefore, the Magistrate framed a charge in respect of an offence, which was not disclosed in the complaint but which does come within the purview of Section 254, Criminal P. C., it was within his jurisdiction so to do provided such an offence is disclosed by the evidence. This act on the part of the Magistrate does not mean his taking cognizance within the meaning of Section 11, Essential Supplies Act of 1946, referred to above. This view finds support from the case of Baldeo Prasad v. Emperor, A.I.R. (20) 1933 Pat. 297 : (34 Cr. L. J. 942), from which the following passage may be quoted :
"It seems to me that the reason for this is that the power of framing charges comes into operation well after the initial requisite of taking cognizance under Section 190 (1) (that being a case of cognizance having been taken under the Criminal Procedure Code), and that this power is not restricted to the offender or the specific sections, if any, mentioned by the prosecutor. A complaint, as defined in Section 4 (h) need not in fact specify any offender, or even the section of the law which makes an act or omission punishable; and cognizance is taken under Section 190 (1) (a) upon receiving an offence, while charges are framed on the evidence before the trial Court. The evidence may, and not infrequently does disclose offences other than those originally mentioned of implied, but it cannot be said that cognizance is taken of such now offences under Clause (a), Sub-section (1), Section 190, for the doable reason that the stage for the application of the sub section itself is long past and the clause can have no application to the evidence produced in the case. Similar observations apply to cases in which cognizance has been initially taken under Clause (b), upon a police officer's written report of facts constituting an offence. It has in fact been repeatedly held that when a Magistrate has taken cognizance of an offence upon a complaint or upon a police report, any offence that may be disclosed by the evidence may be dealt with at the trial; and that Section 190 (1) (c) and Section 191 have no application in such circumstances."
Those observations are of much assistance in deciding the point at issue in the present application.
14. For these reasons I do not think that any illegality has been committed by the learned Magistrate in framing the charge complained of In this view of the matter, I find no ground for interference in this application the application is dismissed.