Allahabad High Court
Smt. Shakila vs State Of U.P. And Another on 19 March, 2013
Author: Surendra Singh
Bench: Surendra Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?In Chamber Reserved Case :- APPLICATION U/S 482 No. - 44486 of 2012 Petitioner :- Smt. Shakila Respondent :- State Of U.P. And Another Petitioner Counsel :- Brijesh Kumar Pandey Respondent Counsel :- Govt. Advocate Hon'ble Surendra Singh,J.
The applicant by way of filing this application under Section 482 Cr.P.C. has sought to quash the charge sheet no. 115 of 2007 dated 23.9.2007 as well as impugned order taking cognizance dated 4.12.2007, bailable warrant dated 18.02.2012 as well as entire criminal proceeding arising out of Case Crime No.456 of 2007 under Section 3/7 of Essential Commodities Act, Police Station Bhot, District Rampur, pending in the court of Additional Chief Judicial Magistrate-I, Rampur.
Brief facts giving rise to the present case are that the applicant was a licensee of fair price shop. Due to certain irregularities committed, a written complaint was made against her to the concerned District Magistrate by the beneficiaries. A preliminary inquiry proceeded against her by the opposite party no.2. It was prima facie found that she had violated the terms and conditions of the license of fair price shop dealership. In this regard, an F.I.R. was lodged against her under Section 3/7 of Essential Commodities Act on 21.8.2007 at Police Station Bhot, District Rampur vide Case Crime No. 456 of 2007 at the instance of opposite party no.2. As usual the crime was investigated, which culminated into submission of charge sheet dated 23.9.2007 against the applicant in the court of Additional Chief Judicial Magistrate-I, Rampur. The cognizance of offence under Section 3/7 of Essential Commodities Act was taken by the learned Magistrate on 4.12.2007 and it was registered as Case No.4300 of 2007 (State Versus Smt. Shakila). Summons for appearance of the applicant was duly issued and on non-appearance before the court, bailable warrant was issued against her vide order dated 18.2.2012, hence this application.
It was contended by learned counsel for the applicant that in view of Section 12-AA of Essential Commodities (Special Provisions) Act, 1981, learned Additional Chief Judicial Magistrate-I, Rampur had no jurisdiction to take cognizance of the offence punishable under the provisions of Essential Commodities Act and Special Judge (E.C.Act) alone was competent to take cognizance. It was further submitted that, therefore, entire criminal proceeding before the learned Magistrate is vitiated by the law and deserves to be set at rest.
I have heard learned counsel for the applicant and learned A.G.A. for the State and perused the material placed on the record.
The question that falls for determination in this case is whether special court which ceased to be Special Court under the provisons of Essential Commodities (Special Provisions) Act, 1981 still has jurisdiction to take cognizance of an offence or to remand the accused to the custody who is implicated for the offence under Essential Commodities Act, 1955. Essential Commoties Act, 1955 (hereinafter referred to as "Principal Act") provides for regulation of production, supply and pricing of essential commodities. This Act had been amended from time to time. In spite of extensive amendments made to the Principal Act, some of the existing provisions of that Act have not been adequate and effective for expeditious disposal of the cases as well as ensuring availability of the essential commodities at fair prices and for curbing hoarding and blackmarketing of and profiteering in, such commodities. Moreso, there were large number of court cases pending under the Principal Act all over the country. For dealing more effectively with persons indulging in anti-social activities, it was considered necessary to make special provisions by way of amendments to the Principal Act for temporary period of 5 years and viewed with this perception, special provisions were brought by way of amendment to the Principle Act. The Essential Commodities (Special Provisions) Act, 1981 (hereinafter referred to as 'Special Provisions') consequently came into force w.e.f. 1.9.1982 in all the States and Union Territories. This special provision was enforced initally for a period of 5 years and was extended for further period of 5 years i.e. 1987 to 1992 and thereafter from 1992 to 1997. The Special provisions were enforced till 13.8.1997. Thereafter the Essential Commodities (Special Provisons) Ordinance, 1997 (Central Ordinance 21 of 1997) was promulgated. As there was no enactment the Essential Commodities Amendment Ordinance 1998 (Central Amendment Ordinance 13 of 1998) was promulgated by the President. The above Ordinances lapsed since they were not replaced by enactments, as a result of which, Special Courts established under Section 12-A for trial of Essential Commodites Act cases ceased to function. Consequentally position that followed was that cases registered under the Essential Commodities Act were to be tried before the Magistrate having jurisdiction as it was being done prior to the enactment of Essential Commodites (Special Provisions) Act, 1981. In view of above, Special Provisions remained in force till 8.7.1998. In pursuance of the notification of State Government, dated 3.10.1998 High Court issued circular dated 30.3.1999 which is quoted below:
"Essential Commodities (Special Provisions) Act, 1981 and Essential Commodities Ordinance, 1998 have become ineffective from 31.3.1997 and 8.7.1998 C.L. No.5/Admin.A 3 dated: 30 March,1999 I am directed to refer the letter no. Bha.Sa.64/29.7.1998- 102/98, dated 3.10.1998 of Sri Prabhat Chandra Chaturvedi, Secretary Government of U.P. Addressed to all the District Magistrate of the State (copy enclosed), on the above subject, and to say tht on consideration of the matter court has been pleased to order that being the provision of Essential Commodities (Special Provisions) Act, 1981, read with Essential Commodities Ordinance 1998 ineffective by virtue of non-extension of power the Section 6 (e) of U.P.General Clause Act, 1904 provides that the cases in which cognizance have been taken shall continue to be tried by the Special Judge.
I am further directed to say that so far as new cases, which have arisen out of essential commodities Act, 1955 after 8.7.1998, cognizance shall be taken as per the provision of said act by Magistrate having jurisdiction of the cases".
On a fair reading of circular issued by this Court, it is borne out that the Essential Commodities (Special Provisions) Act and Ordinance 1998 became ineffective by virtue of non-extension of power. The cases in which the cognizance has already been taken by the Special Judge shall continue to be tried by the Special Judge in view of Section 6 (e) of U.P. General Clauses Act, 1904. It was clarified that in the cases which have arisen from Essential Commodities Act, 1955 after 8.7.1998, cognizance shall be taken as per the provisions of said Act by the Magistrate having jurisdiction of the cases. Resultantly, the above Act and Ordinance lapsed, since they were not replaced by the enactments as a result Special courts established for the trial of the cases of essential commodities ceased to function. Consequently, the position is that cases registered under the Essential Commodities Act are now to be tried before the Magistrate having jurisdiction as it was being done prior to the Essential Commodities (Special Provisions) Act, 1981. It is not disputed that prior to the enforcement of Essential Commodities (Special Provisions) Act, 1981, the cases under the Essential Commodities Act were being tried by the Area Magistrate within their respective territorial jurisdictions. It is discernible from the above facts that during the period Essential Commodities (Special Provisions) Act was in force, special courts constituted for trial of offence under the provisions of Essential Commodities Act had exclusive jurisdiction to try such cases. Special courts had also power to pass order or remand under Section 167 Cr.P.C. and take cognizance of offence but the position has now changed after Essential Commodities (Special Provisions) Act, lapsed by efflux of time. Thereafter the position that used to prevail before the Essential Commodities (Special Provisions) Act, stood restored and Judicial Magistrates who were previously competent to try the essential commodities cases got the jurisdiction to deal with such cases. Since Essential Commodities (Special Provisions) Act, 1981 had lapsed, the power of the learned Magistrate to take cognizance of an offence under the cases of Essential Commodities Act, 1955 stood restored. However, due to non-extension of power, by virtue of Section 6 (e) of U.P. General Clauses Act, 1904 the cases in which cognizance have already been taken before the special provisions became ineffective, shall continue to be tried by the Special Judge concerned.
In view of the above discussion, the argument advanced by learned counsel for the applicant that the proceeding before learned Magistrate is without jurisdiction, illegal and unassailable, is not sustainable. In view of settled preposition of law, the criminal proceeding before the learned Additional Chief Judicial Magistrate-I, Rampur is not held to be without jurisdiction and there is no substance in the argument of the learned counsel for the applicant. The criminal proceeding before the learned Magistrate under the provisions of Essential Commodities Act, 1955 does not suffer from any manifest illegality, irregularities and perversity and, therefore, does not warrant any interference in this application.
The present application under Section 482 Cr.P.C. is bereft of any merit and is accordingly dismissed.
Order Date :- 19.3.2013 MN/-