S.S.SANDHAWALIA, J.

1. Can a Special Court take cognizance of offence under S.11 of the Essential Commodities Act, 1955 , upon the complaint preferred by a public servant - is obviously the significant question necessitating this reference to a Division Bench.

2. As is apperent, the issue aforesaid is pristinely legal and, therefore, the facts giving rise thereto may be noticed with relative brevity. On 18th Jan, 1983 Sri Ram Naresh Singh, Marketing Officer, Chapra, along with Sri R.S. Das, Magistrate Chapra, inspected the kerosene oil shop of the petitioners and found from the cash memos, the sale register and physical verification of the stocks that the accounts aforesaid were not genuine and kerosene oil was being sold in the blackmarket by showing the sales in the names of fictitious persons. The authorities seized the entire stock of kerosene oil and later on 21st Jan 1983, a detailed complaint was filed by the aforesaid Ram Naresh Singh Marketing Officer, Chapra, before Sri A.N. Jha Special Court, Chapra, under S.7 of the Essential Commodities Act, (hereinafter referred to as "the Act"). The Special Court took cognizance of the offence and registered the same as Trial No.63 of 1983. Aggrieved by such cognizance, the present Criminal Miscellaneous Petition was preferred challenging the very jurisdiction of the Special Court to take cognizance of the offence otherwise than on a police report under S.12AA (1)(e) of the Essential Commodities (Special provisions) Act, 1981. It was alleged that S.11 of the Act still continued on the statute book and thereunder only a Magistrate of first class, who was empowered to take cognizance under S.190 of the Criminal P.C., could possibly take cognizance thereof. A specific supplementary affidavit was filed on behalf of the petitioners alleging that Sri. A.N. Jha, Special Judge of the Court at Chapra had not been vested with powers of the first class Magistrate for the purpose of taking cognizance under S.190 of the Code on the basis of a complaint filed before him.

3. In the counter-affidavit filed by Sri Ram Naresh Singh, Marketing Officer, District Supply Office, Chapra, allegations of fact sought to be raised on behalf of the petitioners have been specifically controverted. The legal position taken is that the Special Court is competent to take cognizance of the offence under the Act even after the enforcement of the Essential Commodities (Special Provisions) Act 1981.

4. This criminal miscellaneous petition originally came up for hearing before a learned single Judge. It was strenuously contended on behalf of the petitioners before him that under Cl.(e) of sub-sec.(1) of S.12AA of the Act a Special Court could take cognizance only upon a police report and has no power to take cognizance upon a complaint even though the same is preferred by a public servant in conformity with S.11 of the Act. The learned single Judge noticed that an identical question had been raised in Criminal Miscellaneous No.7260 of 1983 which had been referred for an authoritative decision by a larger Bench. Accordingly he directed that the present case should also be placed before the same Bench.

5. It would appear that Nawal Kishore Agrawals case Criminal Misc. No.7260 of 1983 : (1985 Cri LJ 254) (Pat) along with five similar criminal miscellaneous petitions was heard by a Division Bench but the present case could not be placed before the same. Therein after a reference to principle and precedent and an exhaustive discussion of the rival contentions the Division Bench has held as follows :

"To finally conclude : The answer to the question posed at the outset is rendered in the affirmative and it is held that a Special Court under the Act can take cognizance of offences thereunder upon a complaint preferred by a public servant even after the enforcement of Cl.(e) of sub-sec.(1) of S.12AA of the said Act."

I am wholly in agreement with the aforesaid conclusion and indeed nothing whatsoever was brought to