Patna High Court
Raj Kishore Prasad And Anr. vs State Of Bihar on 12 July, 1999
Equivalent citations: 1999(3)BLJR2129
Author: P.K. Sarkar
Bench: P.K. Sarkar
JUDGMENT P.K. Sarkar, J.
1. This revision is directed against the judgment and order dated 29-8-1990, passed by Shri Jiwan Tigga. 2nd Additional Sessions Judge, Singhbhum at Chaibasa, in Criminal Appeal No. 113 of 1985, whereby and whereunder he confirmed the judgment and order of conviction and sentence dated 29-6-1985, as recorded by the Sub-Divisional Judicial Magistrate, Chakradharpur, in G.R. Case No. 560 of 1977.
2. The short facts giving rise to this revision are as under:
G. R. case No. 560 of 1977, under Section 7 of the Essential Commodities Act (hereinafter referred to as the Act) was instituted on the allegation that petitioner No. 2 Domanial Gupta is a dealer dealing in the essential commodities, in which the business was being conducted by petitioner No. 1 Raj Kishore Prasad, brother of petitioner No, 2, but according to the prosecution, they were not maintaining the books of accounts regarding foodgrains properly and there was also shortage of foodgrains on verification by the informant. The inspection was made on 10-7-1977. The case was tried by the Sub-Divisional Judicial Magistrate, Chakradharpur under Section 7. of the Act, who convicted both the petitioners to undergo rigorous imprisonment for six months. The aforesaid judgment and order of conviction and sentence was confirmed by the learned Additional Sessions Judge as above. Hence, this revision application was filed. The matter was heard on 30-9-1996 by the single Bench of this Court.
3. The main contention of the learned Counsel for the petitioners before this Court was that the entire trial by the trial Court is illegal and vitiated, as he had no authority to try such cases summarily under Section 7 of the Act because summary procedure for trial of specified offences, such as offences relating to foodgrains, edible oil, etc. was introduced in the year 1974. It was further contended that under Section 12-A (2)(b), such cases are to be tried summarily and further it requires under the same provision that a Judicial Magistrate of the 1st Class specially empowered in this behalf by the State Government is competent to try such cases. In the instant case, unfortunately the State Government had not issued any notification at that time and only the High Court had issued a notification on 14-10-1977, bearing No. 341-A, authorising the Sub-Divisional Judicial Magistrates to try the cases under Section 7 of the Act. It was further contended on behalf of the petitioners that the High Court has no authority to issue such notification and only the State Government was competent to issue such notification. In that view of the matter, the trial of the case by the Sub-Divisional Judicial Magistrate without any proper authority will be deemed to be without jurisdiction. In support of the above contention, the learned Counsel for the petitioners had placed reliance to a decision of this Court reported in 1989 PLJR 1917 (Gopi Krishna Kejriwal v. State of Bihar.
4. In the aforesaid case, a Bench of this Court, presided by a single Judge, was of the view that in view of the provisions of Section 12-A(2)(b) of the Act, only the State Government is competent to issue notification empowering any Judicial Magistrate to try such offences and as the notification in the instant case was issued only by the High Court, the trial by the Sub-divisional Judicial Magistrate was bad in law and without jurisdiction.
5. In course of hearing of the case, the learned Counsel for the opposite party .on the other hand placed reliance on a decision of the apex Court , Bokar Raju Rangaraju v. State of U.P.
6. The learned Single Judge while hearing, this criminal revision considered the principles decided in Gopi Krishna Kejriwal's case (supra) as well as in Bokar Raju Rangaraju 's (supra) and also the entire scheme of the Code of Criminal Procedure and other consequential difficulties that may arise if the principles laid down by the learned Single Judge of this Court in Gopi Krishna Kejriwal's (supra) are accepted, and ordered that the entire matter be placed before the Division Bench after obtaining the permission of the Hon'ble the Chief Justice for decision in view of the judgment of the Single Judge of this Court, as discussed above.
7. Accordingly, this matter was placed before a Division Bench of this Court. From the decision of the Division Bench dated 21-6-1999, which is available on the record, it appears that after considering the entire matter, the Division Bench observed as follows:
12. We, accordingly, hold that a Judicial Magistrate of the 1st Class, who was not "specially empowered" by the State Government cannot try an offence falling under Section 12-A(2)(b) of the Act. The single Bench Judgment in Gopi Krishna Kejriwal's case (supra) lays down the correct law and it is accordingly approved.
With the above observations, the records of this case was sent back to be placed before the Single Judge for deciding this case in accordance with law.
8. In view of the aforesaid decision by the Division Bench and approval of the Single Bench Judgment in Gopi Krishna Kejriwal's case (supra) the contention raised by the learned Counsel for the petitioners that the State Government is only competent to issue such notification empowering any judicial Magistrate to try the offence under Section 12-A(2)(b) of the Act and as the notification in this case was issued only by the High Court, the trial by the Sub-divisional Judicial Magistrate was bad in law and without jurisdiction, has merit and the same is accepted.
9. Accordingly, this criminal revision is allowed. The judgment to and orders of conviction and sentence passed by the Courts below are hereby set aside and the petitioners are acquitted of the charges levelled against them. Since the petitioners are on bail, they are discharged from the liabilities of the bail-bonds.