Patna High Court
Kedar Lal Marwari vs State on 9 November, 1967
Equivalent citations: 1968(16)BLJR701
JUDGMENT S.N.P. Singh, J.
1. The petitioner has been convicted under Section 7 of the Essential Commodities Act, 1955, hereinafter to be referred to as "the Act" and sentenced to pay a fine of Rs. 300/- in default, to undergo rigorous imprisonment for three months. He was tried summarily in the court of a munsif Magistrate under the provisions of Section 12-A of the Act. It was alleged that the petitioner sold five kilograms of flour at the rate of 50 paise and 51 paise per kilograms as against the controlled and fixed price of 48 paise per kilogram. According to the prosecution, Ramroop Singh, Supply Inspector, went to the shop of the petitioner on the 10th of September, 1964, and seized the sale register in presence of the Mukhiya. On Checking the register he found that the petitioner had sold flour at the rate of 50 to 51 Naya paise per kilogram. It appears that the petition of complaint dated the 5th of November, 1964, was sent by the Supply Inspector on the basis of which the Subdivisional Magistrate took cognizance on the 20th of November, 1964, under Section 7(1)(a)(ii) of the Act, transferring the case to the file of Sri B.P. Verma, Munsif Magistrate, 1st Class, Khagaria, for disposal. In the trial court the petitioner took, inter alia, the following defence, (1) that no sale rate had been fixed at 48 paise per kilogram, (2) that there was no promulgation of any such sale rate and (3) that he was entitled to sell at the rate of 50 or 51 paise per kilogram by adding the cost of transport to the sale rate fixed by the Government from the place of delivery at Khagaria to the place of sale at Rani Sakarpura.
2. The learned Munsif Magistrate in the summary trial followed the procedure of a summons case. Upon consideration of the evidence adduced by the prosecution and the defence, he came to the finding that the petitioner was guilty under Section 7 of the Act and he sentenced him to pay the fine as stated above. Being aggrieved by the judgment and order of the Musif-Magistrate, the petitioner filed an application in revision before the Sessions Judge, Monghyr. When the application was heard by the 1st Additional Sessions Judge, Monghyr; a point was taken on behalf of the petitioner about the jurisdiction of the Munsif Magistrate to try the case summarily. It was contended that as the alleged offence had been committed between 13th August 1964 and 17th August 1964 and 27th August 1964 and 28th August, 1964, the provisions of Section 12-A of the Act were not applicable and the petitioner should have been tried by a regular court in accordance with the provisions of the Code of Criminal Procedure The learned Additional Sessions Judge did not accept the contention and held that the provisions of Section 12-A of the Act were applicable to the trial of the petitioner. The learned Additional Sessions Judge however, considered the evidence on the record as a court of appeal also and came to the finding that the prosecution proved that the sale rate was fixed at 48 paise per kilogram, that the petitioner had notice of the same and that he sold at a higher rate. He then applied his mind on the question whether the petitioner was entitled to the cost of transport over above the rate fixed by the Government. While dealing with that question, he observed that the petitioner had no mens rea and as such it would have been better for the authority to have merely warned the petitioner or called for an explanation from him and not to have instituted a case against him. As he did not find any illegality in the order of conviction, he declined to make a reference to this Court. The petitioner then filed this petition in revision which was admitted on the 13th of May, 1966. The learned single, Judge while admitting this application also passed an order for issue of notice to the petitioner to show cause why in the event of his conviction being upheld, the sentence should not be suitably enhanced. This case accordingly was placed before this Bench for hearing.
3. Learned Counsel appearing for the petitioner raised the following main contentions:
(a) That the summary trial of the petitioner under Section 12-A of the Act was illegal inasmuch as the alleged offence had been committed before Section 12-A of the Act was inserted in the Act by Amending Act 47 of 1964;
(b) that even if it be held that the Munsif Magistrate had the power to try the petitioner summarily under the provisions of Section 12-A of the Act, the Munsif Magistrate should have followed the procedure prescribed for warrant cases under the code of Criminal procedure and not for summons cases;
(c) that the conviction of the petitioner is unjustified in view of the fact that the prosecution has failed to adduce evidence to prove that the price of flour at the rate of 48 paise per kilogram was fixed by the Subdivisional Officer;
(d) that the evidence led by the prosecution on the point that a notice was sent to the petitioner about the sale rate fixed by the authority is not above suspicion; and
(e) that in any view of the matter the petitioner is entitled to acquittal as there was want of mens rea.
4. It appears that on the 5th of November, 1964, Section 12-A of the Act was inserted in the Act by Ordinance No. 3 of 1964. Section 12-A reads as follows:
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 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.
(2) Where any notification issued under Sub-section (1) in relation to a special order is in force, then, notwithstanding anything contained in the code of Criminal procedure, 1898, all offences relating to the contravention of such special shall be tried in a summary way and by a Magistrate of the first class specially empowered in this behalf by the State Government or by a presidency Magistrate, and the provisions of Section 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.
(3) Notwithstanding anything to the contrary contained in the code of Criminal procedure, 1898, 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, or of fine not exceeding two thousand rupees, or both, whether or not any order of forfeiture of property or an order under Section 517 of the said code is made in addition to such sentence, but an appeal shall lie where any sentence of imprisonment or fine in excess of the aforesaid limits is passed by the magistrate.
(4) 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 on the date of the issue of such notification shall, if no witnesses have been examined before the said date, be tried in a summary way under this Section, and if any such case is pending before a magistrate who is not competent to try the same in a summary way under this Section, it shall be forwarded to a magistrate so competent.
It appears that in pursuance of Section 12-A of the Act the Central Government issued a notification which was published in the Gazette of India on the 24th of December, 1964. In that notification it was specified that all orders made under Section 3 of the Act in relation to food stuffs including edible oil seeds and oils are special orders for purposes of summary trial under Section 12-A of the Act. Learned Counsel in support of his contention that the provisions of Section 12-A of the Act do not apply to the cases in which the contravention have been made before the 5th November, 1964, on which date Section 12-A was inserted the Act by ordinance No. 3 of 1964 relied on a single Judge decision of the Rajasthan High Court in the case of Krantichan v. State . It was held therein that the scope of Sub-section (4) of Section 12-A cannot be extended to those offences which were committed before ordinance No. 3 of 1964 came into force and as such a case relating to an offence which was committed prior to the date on which the ordinance came into force will have to be tried according to the provisions laid down in the code of Criminal procedure. Having regard to the clear provisions in Sub-section (4) of Section 12-A of the Act. I find myself unable to agree with the view of the Rajasthan High Court in the case referred to above. It is clear from the provisions of Sub-section (4) that if no witness have been examined before the date of the notification issued under Sub-section (1) in relation to a special order, the case is to be tried in a summary way under Section 12-A and if a case is pending before a magistrate who is not competent to try the same in a summary way, it is to be forwarded to a magistrate who is competent to try summarily. It is well-settled that a change in the law of procedure operates retrospectively unlike the law relating to vested right which is only prospective. In the instant case no witness was examined even before the date on which the Central Government issued the notification (24th December 1964) under Sub-section (1) of Section 12-A of the Act. In my opinion, the petitioner has been therefore rightly tried in the court of the Munsif Magistrate summarily in accordance with the provisions of Section 12-A of the Act.
5. The second contention raised by learned Counsel appearing for the petitioner appears to be sound. In the instant case the Munsif Magistrate adopted the procedure of a summons case. Under Section 7 two kinds of punishment are prescribed. For contravention of any order under Section 3 made with reference to Clause (H) or Clause (i) of Sub-section (2) of that Section the maximum period of imprisonment provided is one year and fine whereas for contravention of any other order under Section 3 the maximum term of imprisonment prescribed is three years and fine. Under Sub-section (2) of Section 12-A of the Act, the provisions of Section 262 to 265 (both inclusive) of the code of Criminal procedure have been made applicable, as far as may be, to a summary trial under Section 12-A of the Act. Under the provisions of Section 262 of the code of Criminal procedure the procedure prescribed for summons cases has to be followed in summons cases and the procedure prescribed for warrant cases has to be followed in warrant cases with certain exceptions mentioned in the other following Section. As the instant case is not for contravention of Clause (h) or Clause (i) of Sub-section (2) of Section 3 of the Act, the maximum sentence provided under the Act for the alleged offence extends to three years and as such it was a warrant case. The learned Munsif Magistrate, therefore, though trying the case summarily ought to have followed the procedure of a warrant case with certain exceptions as provided in Chapter XXII of the code of Criminal procedure. It was contended on behalf of the State that the failure of the Munsif Magistrate to follow the procedure of a warrant case is a mere irregularity curable under Section 537 of the code of Criminal procedure. It is not possible to accept this contention. In the case of Bandulal Bahaprasad v. The State a Division Bench of the Bombay High Court held that when a case is tried summarily as a summons case, which was triable as a warrant case, the entire trial is vitiated and the irregularity cannot be cured under Section 537 of the code of Criminal procedure. According to that decision, when the Magistrate follows substantially the provisions laid down in Chapter XXI of the code of criminal procedure in regard to trial of warrant cases, but commits some irregularity in following those provisions, only then the irregularity would be curable under Section 537, unless prejudice is shown to have been caused to the accused. I entirely agree with the view expressed in that case. The failure of the Munsif Magistrate to follow the procedure prescribed for warrant cases has vitrated the trial. In that view of the matter, it is not necessary to deal elaborately with the other points raised by learned Counsel.
6. The next question which falls for consideration is whether on the facts and circumstances of the present case it is necessary to send back the case for retrial in accordance with law. Ordinarily, for such a failure on the part of the trial Magistrate, an order for retrial would be the proper order. Regard being had to the fact that the contravention alleged is of a trivial nature and also the fact that the petitioner did not make a secret of the fact that he had sold five kilograms of flour at the rate of 50 or 51 paise per kilogram, I am of the opinion that the ends of justice does not require that the case should be sent, back for retrial. The petitioner will be harassed and put to expenses for no fault of his. I may also mention that the prosecution has not led very satisfactory evidence on the record to prove that the Subdivisional Officer himself had fixed the price. The document (Exhibit 6), though issued from the office of the Subdivisional Officer, was sent by the Supply Officer. It does not bear the signature of the Subdivisional Officer. The prosecution should have led clear evidence on the point that the Supply Officer had issued that memo after the price of the flour had been fixed by the Subdivisional Officer. However, it is unnecessary to further go into the question. In the case of Machander v. The State of Hyderabad the conviction and sentence passed on the accused were set aside on the ground that he was not questioned properly under Section 342 of the code of Criminal procedure. It was observed in that case that the accused had been on his trial one way and another ever since his arrest for over 41/4. years when he applied for special leave to appeal to the Supreme Court. In the circumstances of the case, the retrial of the accused was not ordered. In the instant case cognizance was taken on the 20th of November, 1964. So, for about three years the petitioner has been put to harassment and it will not be proper, therefore to put him to further harassment by ordering a retrial.
7. In the result, this application is allowed and the conviction and sentence passed on the petitioner under Section 7 of the Act are set aside. The rule for enhancement of the sentence is discharged.
M.P. Verma, J.
8. I agree.