Patna High Court - Orders
Munna Prasad @ Jai Prakash Mahto & Anr. vs The State Of Bihar on 19 August, 2014
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.40972 of 2011
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1. Munna Prasad @ Jai Prakash Mahto S/O Sri Ram @ Ram
Kumar Mahto, resident of village - Singha Chhapar , P.S-
Bettiah Muffasil , District - West Champaran at Bettiah.
2. Dinesh Mahto S/O Bachcha Mahto, resident of village -
Kala Kuniya , P.S. - Ram Nagar, District - West Champaran at
Bettiah.
.... .... Petitioner/s
Versus
The State Of Bihar
.... .... Opposite Party/s
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
C.A.V. ORDER
5 19-08-2014Heard learned counsels for the parties.
The two petitioners have preferred this application, seeking quashing of the order dated 20.07.2011 passed by the learned Chief Judicial Magistrate, Bettiah whereby cognizance has been taken under Sections 468, 420 and 34 of the Indian Penal Code.
On the written report of Block Agriculture Officer, Bettiah, Bettiah Town P.S. Case No. 500 of 2010 dated 3.12.2010 was instituted for the offence under Sections 468, 420/34 of the Indian Penal Patna High Court Cr.Misc. No.40972 of 2011 (5) dt.19-08-2014 2/5 Code and Sections 7 and 12 of the Fertilizer Control Order. It was alleged that one consignment of Harabahar Fertilizer, petitioner no. 2 was the driver of the vehicle could not produce any paper and he is said to have stated that the fertilizer was meant to be delivered to petitioner no. 1. It was alleged in the first information report that since there was no authorized dealer of Harabahar Fertilizer in the district, therefore, the fertilizer so seized was either fake or not of standard quality. On the basis of the aforementioned written report, the case as noticed above was instituted.
From perusal of the first information report itself, it appears that three different kinds of fertilizer were seized, out of which, two kinds were claimed by petitioner no. 1, and thus, it was released in his favour by the learned Sessions Judge, Bettiah. The third kind of fertilizer, namely, Harabahar Fertilizer was not claimed by petitioner no.1.
It has been submitted on behalf of the petitioners that as provided under the Fertilizer Patna High Court Cr.Misc. No.40972 of 2011 (5) dt.19-08-2014 3/5 Control Order, the Harabahar Fertilizer, so seized was put to test but no shortcoming was found. Despite this, charge sheet was submitted under Sections 468, 420 and 34 of the Indian Penal Code and Section 7 and 12 of the Fertilizer Control Order. However, the learned Chief Judicial Magistrate took cognizance of the offences under the Indian Penal Code only and did not take notice of sections 7 and 12 of the Fertilizer Control Order. It was further submitted that the order impugned depicts a complete lack of application of mind as even the police report was not properly perused.
It has further been submitted that petitioner no. 1 holds a license to carry on the business in fertilizer. The other grounds of challenge are that there has been violation of sections 28 and 29 of the Fertilizer Control Order, no offence has been made out under Section 3 of the Essential Commodities Act and that the Court of learned Chief Judicial Magistrate did not have any jurisdiction to pass orders when the offence to be tried is under the Patna High Court Cr.Misc. No.40972 of 2011 (5) dt.19-08-2014 4/5 Essential Commodities Act. It was submitted that for Essential Commodities Act only the Special Court, so designated can receive the charge sheet and act upon it for taking cognizance.
From perusal of the records of this case, it appears that the Chief Judicial Magistrate completely mis-directed himself in taking cognizance only under various provisions of the Indian Penal Code, which provision could not be attracted from the prosecution version even if accepted to be ex facie true. Non- application of mind is writ large in the order as the Chief Judicial Magistrate has completely ignored the fact that charge sheet has been submitted under Sections 7 and 12 of the Fertilizer Control Order, 1985 as well. From the facts of the case, none of the offences, even under Sections 7 and 12 of the Fertilizer Control Order, 1985 can at all be said to have been made out.
The contention of the petitioners that cognizance of the offence could be taken only by the Special Court, is not tenable in the eyes of law. The Patna High Court Cr.Misc. No.40972 of 2011 (5) dt.19-08-2014 5/5 Essential Commodities (Special Provision) Act, 1981 remained in force till year 1996 only. The provision of Special Court was made in the aforementioned Act. With no further validation of such Act, cases under the Essential commodities Act are now triable by ordinary Courts under the Code of Criminal Procedure.
However, considering the fact that none of the offences appears to have been made out and also the fact that there has been a complete non- application of mind while passing the order of cognizance, such order dated 20.7.2011 is set aside.
The application stands allowed.
(Ashutosh Kumar, J) Jagdish/-
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