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HIGH COURT OF ORISSA
B. K. Patra, J.
STATE - Appellant
Versus
PRAKASH CHANDRA AGARWALLA - Respondent
Criminal Revn. 320 Of 1967
Decided On : DECEMBER 03, 1969
CRIMINAL PROCEDURE CODE - Section 369 - Order of discharge - Not a judgment - Magistrate competent to revive the proceedings - Essential Commodities Act, 1955 - Section 7 - Contravention of order made under Section 3 (2) (d) - Warrant case - Order of discharge - Can be reviewed by Magistrate.
Fact of the Case:
The opposite party, Prakash Chandra Agarwalla, a dealer in wheat and wheat products, was found to have contravened the conditions of his license issued under the Orissa Foodgrains Dealers' Licensing Order, 1964. The Inspector, Vigilance, Titlagarh, inspected his shop and found irregularities in the maintenance of his account books and non-submission of fortnightly returns as required under Clause (4) of the License. A prosecution report was submitted against him under Section 7 of the Essential Commodities Act, 1955, for contravening the conditions of the license. During the course of the search, about 17 quintals and 68 kilograms of wheat were seized. The Magistrate rejected the opposite party's application for supply of necessary documents under Section 173, Criminal Procedure Code (Cr.P.C.), and dismissed his petition for the release of the seized wheat. The Sessions Judge recommended that the two orders be quashed, and in a subsequent order, the High Court directed the release and sale of the seized wheat through the opposite party or other control dealers, with the sale proceeds to be deposited in Court until the disposal of the case. The Magistrate then directed the prosecution to supply the necessary papers to the opposite party, but the prosecution took the stand that there was no such direction in the High Court's order. On 9-1-1967, the Magistrate discharged the opposite party under Section 251-A(2), Cr.P.C., on the ground that papers under Section 173, Cr.P.C., had not been supplied to the accused despite the High Court's orders. On 16-1-1967, the Inspector, Vigilance, filed the necessary papers and applied to recall the order of discharge, which was allowed by the Magistrate. The opposite party filed an application under Section 540-A, Cr.P.C., stating that the order recalling the order of discharge was without jurisdiction and that the order of discharge amounted to an acquittal. The Magistrate accepted this contention and rejected the prosecution's prayer to restore the case to file. The State filed a revision application challenging this order.
Finding of the Court:
The High Court held that the order of discharge passed by the Magistrate on 9-1-1967 was not a judgment within the meaning of Section 369, Cr.P.C., as it was not a final decision on the merits of the case and did not bar a subsequent prosecution on the same facts. The Court further held that the Magistrate was competent to revive the proceedings by recalling the order of discharge, as the order was based on a technical reason, namely, the absence of the complainant, and not on an appreciation of the evidence. The Court distinguished the present case from cases where the order of discharge is passed after consideration of the evidence and a finding on the guilt or innocence of the accused.
Issues: 1. Whether the order of discharge passed by the Magistrate was a judgment within the meaning of Section 369, Cr.P.C.? 2. Whether the Magistrate was competent to revive the proceedings by recalling the order of discharge?
Ratio Decidendi: 1. An order of discharge passed by a Magistrate without consideration of the merits of the case and based on a technical reason, such as the absence of the complainant, is not a judgment within the meaning of Section 369, Cr.P.C., and does not bar a subsequent prosecution on the same facts. 2. A Magistrate is competent to revive the proceedings by recalling an order of discharge passed on a technical reason, as the order is not a final decision on the merits of the case and does not bar a subsequent prosecution.
Final Decision: The High Court allowed the revision application, set aside the order of the Magistrate dated 26-4-1967, and ordered that the case be sent back to the Magistrate for disposal according to law.
B. K. PATRA, J.
( 1 ) THE opposite party Prakash Chandra Agarwalla holds a licence under the Orissa foodgrains Dealers' Licensing Order, 1964 (hereinafter referred to as the Order)and was dealing in wheat and wheat-products. The Inspector, Vigilance, Titlagarh inspected his shop on 28-8-1965 and found some irregularities in maintenance of his account books as the books did not show the correct stock of wheat held by him by that day. The opposite party also did not submit fortnightly returns as required under Clause (4) of the Licence. On the aforesaid allegations, the inspector, Vigilance submitted a prosecution report against him under Section 7 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) for contravening the conditions of the licence issued to him. In course of search of the shop of opposite party about 17 quintals and 68 kilograms of wheat were found and seized. The opposite party appeared in Court and filed an application that he is entitled to be supplied with necessary documents under Section 173, Criminal P. C. This prayer was rejected by the learned Magistrate being of the view that there was no investigation of the case by the Vigilance Inspector and prosecution report was submitted as a Non-F. I. R. case. Another petition filed by the opposite party for release of the wheat to him was also dismissed. As against the two orders passed by the Magistrate, the Sessions Judge was moved in revision and he made a reference to this Court recommending that the two orders might be quashed. In criminal reference No. 6 of 1966, Das, J. ordered that the seized stock of wheat, should be released and sold through the opposite party or some other control dealers and the sale proceeds be deposited in Court until disposal of the case against the opposite party. The question as to whether papers should be supplied to the opposite party under section 173, Criminal P. C. was not specifically dealt with in the judgment, The order, however, was the reference was accepted. On receipt of this order, the learned Magistrate directed the prosecution to supply necessary papers to the opposite party. The prosecution appears to have taken the stand that there was no such direction in the order passed by the High Court and that an opportunity might be afforded for hearing of this question and 9-1-1967 was fixed for hearing the objections raised by the prosecution. On 9-1-1967, the learned Magistrate discharged the opposite party under Section 251-A, (2), Criminal P. C, on the ground that despite the orders of the High Court, papers under Section 173, criminal P. C. had not been, supplied to the accused. On 16-1-1967, the Inspector, Vigilance filed the necessary papers under Section 173, Criminal P. C. and also submitted an application stating that he could not do so on the last date of hearing, namely 9-1-1967, as he was absent and prayed that the order dated 9-1-1967 might be recalled. The learned Magistrate allowed the application and recalled the order passed on 9-1-1967. On 4-3-1967, the opposite party filed an application under Section 540-A, Criminal P, C, stating that the order dated 16-1-1967 passed by the learned Magistrate recalling the order dated 9-1-1967 is without jurisdiction, that this being a summons case, the order of discharge recorded on 9-1-1967 amounts to an order of acquittal and that therefore, the learned Magistrate had no power either to recall it or to set it aside. By order dated 26-4-1967, the learned Magistrate accepted the aforesaid contention of the opposite party and rejected the prayer of the prosecution to restore the case to file. It is against this order dated 26-4-1967 that the present revision application has been filed.
( 2 ) MR. Ramdas appearing for the State puts forth the following contentions in support of the application:- (1) The opposite party has contravened an order made with reference to clause (d) of Sub-section (2) of Section 3 of the Act, the penalty prescribed fo
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