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1991 Supreme(Cal) 153
High Court Of Calcutta
A.K. Nayak, J.
Karali Prosad Mondal : Appellant
Versus
State : Respondent
Decided On : March 21,1991
Biman Kanti Bose, J.N. Ram
The provisions of sub-section 5 of Section 167 Cr. P. C. are applicable to a case punishable under Section 7 (1) (a) (ii) of the Essential Commodities Act, 1955, as the provisions of Clause (f) of Section 12aa of the Essential Commodities (Special Provisions) Act, 1981, have the effect of rendering all such cases as summons cases for the purpose of trial.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 167 (5) - ESSENTIAL COMMODITIES ACT, 1955 - SECTION 7 (1) (A) (II) - SUMMARY TRIAL - APPLICABILITY OF SECTION 167 (5) TO CASES UNDER SECTION 7 (1) (A) (II) - INTERPRETATION OF CLAUSE (F) OF SECTION 12AA OF THE ESSENTIAL COMMODITIES (SPECIAL PROVISIONS) ACT, 1981 - KEY LEGAL POINT - THE PROVISIONS OF SUB-SECTION 5 OF SECTION 167 CR. P. C. ARE APPLICABLE TO A CASE PUNISHABLE UNDER SECTION 7 (1) (A) (II) OF THE ESSENTIAL COMMODITIES ACT, 1955.
Fact of the Case:
The petitioners were arrested for allegedly violating the West Bengal Rice and. Paddy (Licensing and Control) Order, 1967, under Section 7 (i) (a) (ii) of the Essential Commodities Act, 1955. They filed a petition before the Special Court, Bankura, for discharging them from the pending proceeding under Section 167 (5) Cr. P. C., as the charge sheet was submitted beyond the period of six months from the date of their arrest. The Special Judge rejected the petition, holding that the provisions of Section 167 (5) Cr. P. C. were not applicable to the pending case against the petitioners under Section 7 (i) (a) (ii) of the Essential Commodities Act.
Finding of the Court:
The High Court held that the provisions of sub-section 5 of Section 167 Cr. P. C. are applicable to a case punishable under Section 7 (1) (a) (ii) of the Essential Commodities Act, 1955. The court interpreted Clause (f) of Section 12aa of the Essential Commodities (Special Provisions) Act, 1981, which provides for summary trial of all offences under the Act, to mean that all such cases are to be tried in a summary way following the summons procedure, and that the Judge, Special Court, can exercise all the powers under Sub-section 5 of Section 167 Cr. P. C. in relation to such cases.
Issues: Whether the provisions of sub-section 5 of Section 167 Cr. P. C. are applicable to a case punishable under Section 7 (1) (a) (ii) of the Essential Commodities Act, 1955.
Ratio Decidendi: The court held that the provisions of Clause (f) of Section 12aa of the Essential Commodities (Special Provisions) Act, 1981, which provides for summary trial of all offences under the Act, have the effect of rendering all such cases as summons cases for the purpose of trial, even though they may be inherently warrant cases. The court also held that the limitation of the maximum sentence for any offence under the Act to two years, as provided in the proviso to Clause (f), has the effect of neutralising the substantive provisions of penalty as laid down in Section 7 of the Act. Therefore, the court concluded that the Judge, Special Court, can exercise all the powers under Sub-section 5 of Section 167 Cr. P. C. in relation to cases punishable under Section 7 (1) (a) (ii) of the Essential Commodities Act.
Final Decision: The High Court allowed the revision petition, set aside the order passed by the Special Judge dated 9/8/1985 rejecting the prayer of the accused petitioners, and quashed the pending proceeding.
1. BY this revisional application under Section 397/401/482 cr. P.C. the accused petitioners pray for quashing the proceeding pending against them by setting aside the order dated 9. 8. 85 passed by-Judge, Special Court, (E. G. Act), Bankura, in a case under section 7 (i) (a) (ii) of the Essential Commodities Act, 1955.
2. THE case of the petitioners in brief is that following a raid in their ration shop, Gangajalghati, Bankura, they were arrested on 27.8.1983 and a case was started against them under Section 7 (i) (a) (ii) of the Essential Commodities act, for alleged violation of the West Bengal Rice and. Paddy (Licensing and Control) Order, 1967. After protracted investigation charge sheet was submitted against them on 29.1.1985 beyond the period of six months from the date of their arrest for which they filed a petition before the Judge, Special court, Bankura for discharging them from the pending proceeding under Section 167 (5) Cr. P. C. The learned Special Judge by his order dated 9.8.1985, rejected the same holding the provisions of section 167 (5) Cr. P. C. was not applicable to the pending case against the petitioners under Section 7 (i) (a) (ii) of the Essential Commodities Act.
Being aggrieved by the same, the accused petitioners have preferred this petition before this court.
3. THE question of law that arises for our determination in this revisional petition is whether the provisions of sub-section 5 of Section 67 Cr. P. C. are applicable to a case punishable under Section 7 (1) (a) (ii) of the Essential commodities Act. It may foe stated at the very outset that the amendment of the Essential Commodities Act, brought about by the Essential Commodities (Special Provision)Act, 1981, has introduced a sea of change in the procedural side of trial of all the offences under the Essential Commodities Act. Sub-section (1) of Section 12aa provides that not with standing anything contained in the code under Clause (a) all offences under this Act shall be triable only by the Special Court constituted" for the area. Clause (c) of the said Sub-section provides that the Judge, Special Court may, subject to the provisions of clause (d) regarding bail, exercise all the powers under section 167 Cr. P. C. in relation to an accused person in such a case who has been forwarded to him under Clause (b) of the said Sub- section. Clause (e), authorises a special Court to take cognizance of an offence on perusal of police report of the facts constituting an offence without the accused being committed to it for trial. What is very' much important for the purpose of our present matter is the provisions of Clause (f) of the said Sub-section which is reproduced herein below s all offences under this Act shall be tried in a summary way. and the provisions of section 262 to 265 (both inclusive) of the Code shall, as far as may be, apply to such trial : provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Special Court to pass a sentence of imprisonment for a term not exceeding two years. "
4. A plain reading of Clause (f) shows that all offences under this Act are to be tried in a summary way and that the provisions of Section 262 Cr. P. C. shall apply to the trial of such cases "the proviso lays down in clear terms that in course of such trial of all the offences under this act and punishment that may be inflicted by the Special judge shall not be for a period exceeding two years.
The pertinent question is whether because of the provisions of Clause (f) and the limitation of the terms of imprisonment not exceeding two years, all such cases to be tried by the Special Court can be construed to be summons cases within the meaning of sub-section 5 of section 167 Cr. P. C. The key to answer the legal question that has been raised in the revisional proceeding lies in the determination of this question. Section 262 Cr. P. C. provides that the procedure for the trial of summons cases sha
