Allahabad High Court
Unish Khan vs State Of U.P And Another on 17 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 85 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12494 of 2022 Applicant :- Unish Khan Opposite Party :- State Of U.P And Another Counsel for Applicant :- Anil Pratap Singh Raghav Counsel for Opposite Party :- G.A. Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri Anil Pratap Singh Raghav, learned counsel for the applicant and Sri O.P. Mishra, learned AGA for the State.
2. The present application has been moved on behalf of the applicant-Unish Khan seeking anticipatory bail in Case Crime no. 0979 of 2022, under Sections 3/7 of Essential Commodities Act, 1955, P.S. Khurja Nagar, District Bulandshahr.
3. As per prosecution case, on the basis of a confidential information about black marketing of grains by the fair price shop licensee, the sub-inspector from local police station along with Regional Food Officer reached the shop of the present applicant but it was found closed; after several failed attempts to contact the shop owner; the shop was sealed. On 30.09.2022, the team constituted by the A.D.M. inspected the shop in presence of the licensee/shop owner and the witnesses; 12 gunny bags of wheat and 6 gunny bags of rice were found less than the stock. On the basis of this, FIR Case Crime No. 0979 of 2022, under Sections 3/7 of Essential Commodities Act, 1955 was lodged and was investigated upon.
4. It is contended on behalf of the applicant that the applicant is innocent and is not involved in any kind of black marketing; the case against him is registered without any basis at the initiative of a political party; the applicant has no criminal antecedents and that he is ready to abide by the conditions which may be imposed by the court.
5. Besides opposing the anticipatory bail application on merits, it is opposed on the ground that the offence with which the applicant has been charged is bailable, hence, the provisions of Section 438 Cr.P.C. shall not apply and therefore the anticipatory bail application is not maintainable. To support this contention a judgment of Allahabad High Court passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 10698 of 2021 vide order dated 10.11.2021 (Rajeev Kumar vs. State of U.P.) has been cited before me. I went through the judgment of the Allahabad High Court. Quoting certain parts of the judgment of M.P. High Court in Dinesh Kumar Dubey vs. State of M.P.; 2001 (1) M.P.H.T. 213, the court expressed an opinion that the offences under Sections 3/7 of Essential Commodities Act, 1955 are bailable. The Allahabad High Court held as below:-
"The above legal position is not clear to most of the Investigating Officers and the courts below and therefore, the bail application of the accused persons in such cases are rejected by the Magistrate and the special courts, treating the offences to be non-bailable."
6. The relevant para of the pronouncement of the M.P. High Court as quoted in the Allahabad High Court's judgment is reproduced here again:-
"It appears that by the Essential Commodities (Special Provisions) Act, 1981 Section 10A of the original Act of 1955 was amended and after the word 'Cognizable', the words 'and non-bailable' were introduced. The said Act of 1981 was to remain in force for a period of five years only from the date of commencement of 1981 Act. Thereafter by the Essential Commodities (Special Provisions) Continuance Act, 1987 Para 2 of the preamble of 1981 to the Essential Commodities (Special Provisions) Act, 1981 was amended and in place of five years period of 10 years was substituted. Thereafter by Third Amendment, the said period of continuance was made for fifteen years. After expiry of fifteen years no amendment Act was brought into force but certain ordinances were issued. The last of the ordinance was issued in the year 1988, which lost its life and efficacy by lapse of time, thereafter no Act or ordinances have been issued to continue the provisions of 1981 Act. Learned counsel for the State was given opportunity to go through the provisions of law and report to the Court as to whether after 1988 any further Act has been brought in existence or any other ordinance was issued to continue the effect of 1981 Act. Learned counsel for the State submits that despite his best efforts he could not find any other Act or ordinance which continued the effect and operation of 1981 Act.
3. If 1981 Act has lost its life then any amendment incorporated by the said Act, which was to remain in force for a period of five, ten or fifteen years would come to an end and additional words, "And non-bailable" shall become non-est and otios. Section 10A without the said amendment shall now be read as "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 every offence punishable under the Act shall be 'Cognizable'.
4. In view of the above legal provisions the offence is not non-bailable. Cognizance of such an offence can be taken but 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."
7. There is no dispute on the point that the Essential Commodities Act, 1955 was amended by the Essential Commodities (Special Provisions) Act, 1981. Section 10-A of the Act of 1955 was amended in 1981 and the word 'non-bailable' was introduced after the word 'cognizable'. This is not disputed that 1981 amendment was to remain in force for a period of 5 years only, thereafter for the words '5 years' words '10 years' were substituted. Consequently, the amended part remained in force for total period of 15 years. The last of the ordinance issued in the year 1988 lapsed as no ordinance came thereafter to continue the provisions of Act of 1981. On the basis of aforesaid undisputed positions, the High Court of M.P. was of the view that the offence under Sections 3/7 of Essential Commodities Act, 1955 no longer remained non-bailable. In para-4 of the judgment just quoted above, the M.P. High Court expressed an unambiguous view that in absence of any other provisions showing the offence to be non-bailable the offence shall continue to be bailable in view of the Schedule-I Part 2 of the Cr.P.C.
8. It may importantly be noted that by the Essential Commodities (Amendment) Act, 1974 (Act No. 30 of 1974), Section 10-A of the principal Act was amended and the word 'bailable' was omitted. This amendment came into force on 2nd June, 1974. It is quite obvious that before coming into effect of the Amendment of 1974, the offences were being treated bailable by virtue of provisions of Section 10-A of the principal Act.
9. To clarify further it may be noted that by the Essential Commodities (Special Provisions) Act, 1981 word 'bailable' was substituted by the word 'non-bailable' that is the offences became non-bailable by coming into force of 1981 Act, however, before the amendment of 1981 came into operation, Section 10-A had no application as it did not say whether the offence shall be treated as bailable or non-bailable. To summarize before coming into effect of 1974 Act, the offences were bailable and after coming into force of 1974 Act, Section 10-A remained silent on the question of bailability/non-bailability of the offence till the Act of 1981 came into force. Subsequently, because of lapse of ordinance, the position as existing just before the promulgation of Essential Commodities (Special Provisions) Act, 1981 was revived i.e., Section 10-A did not say whether the offence is treated as bailable or non-bailable by virtue of 1974 Act till coming into effect of 1981 Act.
10. Now very pertinent question arises whether to treat the offence under Section 3/7 of Essential Commodities Act, 1955 as bailable or as non-bailable in case of offence committed after 08.07.1998. The judgment of the Allahabad High Court given in Rajeev Kumar vs. State of U.P. (supra) has referred to G.O. dated 03.10.1998 from the judgment of Smt. Shakila Vs. State of U.P. and Another, Application under Section 482 No.44486 of 2012, which was addressed to all the District Magistrates of this State making it very clear that Essential Commodities (Special Provisions of 1981 and Essential Commodities (Ordinance) Act, 1988 became ineffective from 31.03.1997 and 08.07.1998 respectively.
11. It may be usefully be noted that Section 10-A was inserted below Section 10 of the principal Act by the second amendment of 1967 (Act No. 36 of 1967) w.e.f. 30.12.1967. The newly inserted Section 10-A is quoted as below:-
"Offences to be cognizable and bailable--Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), every offence punishable under this Act shall be cognizable and bailable."
12. This newly Act added Section 10-A was amended by Act No. 30 of 1974 w.e.f. 22.06.1974 and the word 'bailable' was omitted. Thus legal position becomes quite clear that because of lapse of amendment of 1981, the offences under the Essential Commodities Act shall be treated as cognizable and as far as the point of bailability and non-bailability is concerned, it shall be dealt with as per the provisions of Cr.P.C., 1973.
13. Schedule-I Part 2 of the Cr.P.C. applies to offences punishable under other laws. It says that offences punishable with death or imprisonment for life or imprisonment upto 7 years but more than 3 years shall be non-bailable.
14. Section 7 of the Essential Commodities Act, 1955 is as below:-
"(1) If any person contravenes any order made under section 3,--
(a) he shall be punishable,--
(i) in the case of an order made with reference to clause (h) or clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and
(ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine:
[Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months;]
(b)................
(c) ................
(2) ................
(2A) .............
(2B) ..............
(3) ................"
It may be noted that certain offences shall be punishable for imprisonment up to 1 year only and certain other offences shall be punishable with imprisonment up to 7 years. As Section 10-A which was inserted by the Act 36 of 1967, as amended by amendment Act of 1974, stands revived, after lapsing of Essential Commodities (Special Provisions) Act, 1981, hence, the offence committed after 08.07.1998 shall be goverened as per the provisions of Schedule I Part 2 of the Cr.P.C. and therefore shall be treated bailable or non-bailable depending upon the term of maximum punishment imposable.
15. It is very essential to note that the judgment of a coordinate Bench of this Court was passed on the basis of judgment of M.P. High Court pronounced in Dinesh Kumar Dubey (supra). However, the opinion given in that judgment of the M.P. High Court was digressed from by pronouncement of the same High Court in Misc. Criminal Case No. 3248 of 2022 passed on 04.02.2022 in Rajesh Khatik vs. State of M.P. The judgment in Nemchand Agrawal vs. State of M.P.; M.Cr.C. 6111 of 1999 in which the provisions of Section 10-A of the Act were touched upon, were also placed before the M.P. High Court to stress the point that the offences under Sections 3/7 of the Essential Commodities Act are bailable. The M.P. High Court was of the view that certain point of law was not brought and not argued before the Court cannot be treated as precedent. The Court did not agree with the view taken in Nemchand (supra) and Dinesh Kumar Dubey (supra) citing reasons as below:-
"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 co-ordinate benches. But something which has been assumed and not decided cannot be considered as authoritative binding precedent.
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 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."
16. Ultimately it was held that as the offence fell under Section 7(1)(a)(ii) of the Act being punishable with imprisonment extending up to 7 years read with Schedule I Part 2 of the Code are not bailable and it was held that the correct position of law is that Schedule I Part 2 of the Code, 1973 shall be taken into consideration to determine the question whether the offence punishable under the Essential Commodities Act, 1955 is bailable or non-bailable.
17. Even before passing of this judgment, the High Court of M.P. in Arun Bharti vs. State of M.P.; Misc. Criminal Case No. 20337 of 2020 decided on 01.07.2020 considered the position of law in the light of number of judgments pronounced earlier including the judgments in Dinesh Kumar Dubey (supra), Nemchand Agrawal vs. State of M.P. (supra), Hariom vs. State of M.P., 2011 (1) MPLJ (Cri.) 267, Santosh Sahare vs. State of M.P. (MCRC No. 2914/2015 decide on 7.5.2015) and Balwant vs. State of M.P.; 2001 (3) MPLJ 414 held that in judgment of Balwant case is the precedent to be followed wherein it was held that the offences punishable up to 3 years were bailable and offences punishable up to 7 years were non-bailable as per Ist Schedule of Cr.P.C.
18. The judgment inCriminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 10698 of 2021 vide order dated 10.11.2021 (Rajeev Kumar vs. State of U.P.) is per incuriam and has been passed oversighting the clear and unambiguous statutory provisions.
19. The present case before me is of a fair price shop which when checked by the authorities was found short of certain stock. The applicant has not been able to show that the FIR was registered with some ulterior motives. The offence shall fall in the categories under Section 7(1)(a)(ii) entailing punishment up to 7 years.
20. No probable defence or reason has been offered for false implication.
21. I considered all the submissions, facts, circumstances and material before me, It may be kept in mind that anticipatory bail is an extraordinary remedy to be exercised in suitable cases only. The power under Section 438 Cr.P.C. cannot be utilized in a routine manner and definitely not as a substitute for regular bail. This discretionary power calls for existence of facts of the kind where the court is satisfied that its interference is necessary to further the cause of justice and to prevent misuse of process of law.
22. In view of the facts and circumstances of the case I do not find it fit case to grant benefit of anticipatory bail.
23. Hence the anticipatory bail application is rejected.
24. The Registry is directed to circulate this judgment to all concerned.
Order Date :- 17.1.2023 #Vikram/-Saif