Back
1979 Supreme(Pat) 286
PATNA HIGH COURT
Muneshwari Sahay and . JJ.
Jhopri Sao
Versus
State Of Bihar
Criminal Miscellaneous No. 3220 of 1977 ;
Decided On : DECEMBER 17, 1979
Cognizance of an offence punishable with imprisonment for a term not exceeding one year must be taken within one year of the date of the offence.
Headnote:
CRIMINAL PROCEDURE CODE - LIMITATION - COGNIZANCE OF OFFENCE - OFFENCE PUNISHABLE WITH IMPRISONMENT UPTO ONE YEAR - COGNIZANCE TAKEN MORE THAN A YEAR AFTER THE DATE OF OFFENCE - BARRED BY LIMITATION - SEC.468(2)(A) OF THE CODE OF CRIMINAL PROCEDURE.
Fact of the Case:
The petitioners were charged with violating the conditions of their license under the Bihar Banaspati Dealers Licensing Order and the Bihar Essential Articles (Display of Stocks) Order. The Circle Officer inspected the petitioners' business premises and found that the stock of banaspati was in excess of the amount mentioned in the stock register and that the cash memo was not produced. The petitioners were charged with offences under Sec.7 of the Essential Commodities Act and Rule 114 of the Defence of India Rules.
Finding of the Court:
The court held that the Display Order was ultra vires the provisions of rule 114 of the Defence of India Rules, 1971 and, therefore, the petitioners could not be prosecuted for any contravention of the Display Order. The court also held that the offence of maintaining improper accounts books and not producing cash memo was covered by Sec.3(2)(h) and (i) of the Essential Commodities Act and was punishable under Sec.7(1)(a) with imprisonment for a term which may extend to one year. The court further held that the cognizance taken against the petitioners was barred by time as it was taken more than a year after the date of the offence.
Issues: 1. Whether the Display Order was ultra vires the provisions of rule 114 of the Defence of India Rules, 1971? 2. Whether the offence of maintaining improper accounts books and not producing cash memo was covered by Sec.3(2)(h) and (i) of the Essential Commodities Act? 3. Whether the cognizance taken against the petitioners was barred by time?
Ratio Decidendi: 1. The court held that the Display Order was ultra vires the provisions of rule 114 of the Defence of India Rules, 1971 as it had been held invalid by a bench of the court in an earlier case. 2. The court held that the offence of maintaining improper accounts books and not producing cash memo was covered by Sec.3(2)(h) and (i) of the Essential Commodities Act as these provisions empowered the government to collect information and statistics with a view to regulating or prohibiting the production, supply, distribution or trade of essential commodities and to require persons engaged in such activities to maintain and produce for inspection such books, accounts and records relating to the business and to furnish such information relating thereto as may be specified in the order. 3. The court held that the cognizance taken against the petitioners was barred by time as it was taken more than a year after the date of the offence and the offence was punishable with imprisonment for a term not exceeding one year.
Final Decision: The court allowed both the applications and quashed the cognizance taken against the petitioners and the proceedings which were pending against them in pursuance of that cognizance.
Muneshwari Sahay, J.
1. These two applications, namely, Cr. Misc. Nos.3220 and 3631 of 1977 have been heard together as they arise out of the same case. One Jhopri Sao is the petitioner in Cr. Misc. No.3220/77. His son jawahar Prasad is the petitioner in Cr. Misc.3631 of 1977. Jawahaf Prasad is the licensee under the Bihar Banaspati dealers Licensing Order (hereinafter to be referred to as the order ). The Circle officer, Masaurhi, inspected the business premises of Jawahar Prasad on 29-7-1975 at 3 p. m. Jawahar Prasad was not present at the shop. His father Jopri Sao was present there. The Circle Officer demanded the licence from Jhopri Sao. The licence was produced and it was found that it had been renewed upto date. The Circle Officer next demanded the stock register of Banaspati which was produced by Jhopri Sao for inspection. The Circle Officer found that the stock mentioned in the stock register was in excess by 31 kgs. than the actual stock found in the shop. The stock as mentioned in the stock register was 295 kgs. of banaspati which on verification, however, was found only 264 kgs. The circle Officer also demanded the cash memo from Jhopri Sao. Jhopri Sao did not produce the cash memo and gave out in writing that as the cash memo had been sent for being printed he had not issued any cash memo for sales made on that date. The Circle officer also found that the actual stock of the banaspati had not been displayed on the board at the entrance of the shop. The stock showed on the board was 295 kgs. although as mentioned earlier the actual stock was only 264 kgs.
2. The Circle Officer, therefore, lodged a first information report before the masaurhi police making the aforesaid allegations against the petitioners. The circle Officer alleged that the petitioners had violated the conditions 4 and 7 of the licence issued under the Order as also the provisions of the Bihar Essential articles (Display of Stocks) Order 1975 (hereinafter referred to as the display Order ).
3. In due course charge-sheet was submitted against the petitioners by the police and the learned Magistrate took cognizance against them for offence under Sec.7 of the Essential Commodities act and Rule 114 of the Defence of india Rules. It is this order, by which cognizance was taken against the petitioners, that is being impugned in the present case.
4. Learned counsel for the petitioners has submitted that the Display order has been ultra vires the provisions of rule 114 of the Defence of india Rules, 1971 by a, bench of this Court in Cr. W. J. C.1 of 1977 decided on the 4th December, 1979. Therefore, it is submitted that the petitioners cannot be prosecuted or punished for any contravention of the Display Order. The submission has to be accepted because the Display Order, which is alleged to have been contravened by the petitioners, has itself been heen held invalid by this Court. Learned counsel for the State does not dispute the correctness of this submission.
5. Learned counsel for the petitioners has contended further that the law is well settled that only licence can be prosecuted and punished for the contravention of terms and conditions of the licence. The reason is obvious. A person, who does not hold any licence, is not required to obey any condition which could be mentioned in the licence. In instant case, it is admitted that the licence stands in the name of Jawahar prasad and Jhopri Sao was not the licence. Therefore, Jhopri Sao could not be prosecuted for contrayaning conditions 4 and 7 of the licence. It may be stated in this connection that neither in the fist information report nor in the charge-sheet it has been alleged that on the date the contravention was committed, Jhopri Sao was incharge of and was responsible to the conduct of the business of the firm. Therefore, in any view of the matter, petition of Jhopri Sao, namely, cr. Misc. No, 3220 of 1977 succeeds and is allowed.
6. The question arises if Jawahar Prasad petitioner in
