The power to try an offense necessarily implies the power to take cognizance of the said offense unless expressly taken away by the mandate of a statute.

S.S.Sandhawalia, J.

1. Can a Special Court take cognizance of offences under the Essential Commodities Act, 1955, upon a complaint preferred by a public servant, even after the recent enforcement of Clause (e) of Sub-section (1) of Sec.12-AA of the said Act is the solitary, though significant, common question which has been referred for an authoritative decision by the Division Bench in this set of six Criminal Miscellaneous Petitions. Learned Counsel for the parties are agreed that this judgment will govern all of them.

2. Since the pristinely legal issue aforesaid arises from facts which are similar, if not identical, it would suffice to notice them briefly from Criminal Miscellaneous No. 7260 of 1983 (Nawal Kishore Agarwal V/s. State of Bihar). On the 22nd of February, 1983, the petitioners house was inspected by the authorities under the Essential Commodities Act (hereinafter referred to as "the Act") and 4 tins of rapeseed oil and 27 tins of Vanaspati were duly seized. Thereafter the petitioner was served with a show cause notice under Sec. 6-A of the Act to which he made a detailed reply. Apparently finding the said Reply unsatisfactory, the Supply Inspector of Bhagalpur presented a complaint in the Court of the Special Judge, Bhagalpur, under Section 7 of the Act. The learned Special Judge took cognizance of the same and a case was registered as P.S. Case No. 3 of 1983. Aggrieved thereby the petitioner forthwith presented the criminal miscellaneous petition seeking to quash the entire proceedings. The threshold question sought to be raised herein is that after the insertion and enforcement of Sec.12-AA (1) (e) of the Act Vide the Essential Commodities (Special Provisions) Act, 1981 on the 1st of September, 1982, the Special Court has no longer any jurisdiction whatsoever to take cognizance of an offence upon the complaint of a public servant and it can do so only upon a police report.

3. Inevitably the controversy herein rages round the language of Sec.12-AA and it is, therefore, apt and indeed necessary to read the relevant part of the same at the very outset.

12-AA. Offences triable by Special Courts.- (1) Notwithstanding anything contained in the Code,- (a) All offences under this Act shall be triable only by ,he Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the High Court;

(b)....

(c)....

(d)....

(e) a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act take cognizance of that offence without the accused being committed to it for trial.

4. Equally necessary it is to point out that it was common ground before us that the legal issue herein arises only from the enactment of Sec.12-AA and, in particular, the a fore quoted Clause (e) thereof. Prior thereto there was no difficulty or hurdle to the cognizance of offences under the Act by the Magistrates (who then had jurisdiction to try such offences) on the basis of a complaint by a public servant if the requirements of Sec.11 were satisfied. The said Section which continues on the statute book is in the following terms ;

11. Cognizance of offences.-No Court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting such offence made by a person who is a public servant as defined in Sec.21 of the Indian Penal Code (45 of 1860).

5. It would be plain from the language of the a fore quoted provision that it fully warranted the taking of cognizance of offences under the Act by a Court either on a police report or on a complaint in writing by any public servant within the meaning of Sec.21 of the Indian Penal Code. The core question herein, therefore, is whether despite the existence of Sec.11, the enactment of Sec.12-AA (1) (e) has the effect of barring cognizance of offences under the Act by the Special Co