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1984 Supreme(All) 389
IN THE HIGH COURT OF ALLAHABAD
S. K. Dhoan
JAI PRAKASH - Appellant
Versus
STATE OF U.P. - Respondents
Criminal Misc. Application 8237 Of 1984
Decided On : 08/24/1984
K.N.Dwivedi
The provisions of Section 319 of the Code of Criminal Procedure, 1973, are not repugnant to the provisions of Section 11 of the Essential Commodities Act, 1955, and are applicable to proceedings before a Special Court constituted under the Act.
Headnote:
ESSENTIAL COMMODITIES ACT - SECTION 3/7, 8, 11 - CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 190, 319 - APPLICABILITY OF SECTION 319 TO PROCEEDINGS UNDER THE ACT - INTERPRETATION OF SECTION 8 AND 11 - SCOPE OF SECTION 319(1) AND (4) - POWER OF SPECIAL COURT TO PROCEED AGAINST ADDITIONAL ACCUSED.
Fact of the Case:
An application was filed under Section 482 of the Code of Criminal Procedure, 1973, challenging an order passed under Section 319 of the Code directing the applicant to face prosecution for an offence under Section 3/7 read with Section 8 of the Essential Commodities Act, 1955. The applicant, who was running the rice mill in question on behalf of the accused, was examined as a witness and admitted his involvement in the contravention of the relevant order. The Special Judge, acting on an application filed by the accused, issued non-bailable warrants against the applicant, holding that he had committed an offence.
Finding of the Court:
The Court held that the provisions of Section 319 of the Code were not repugnant to the provisions of Section 11 of the Act. Section 8 of the Act created a legal fiction, deeming persons who attempt or abet a contravention of an order made under Section 3 to have contravened that order. This fiction was intended to put attempters and abettors at par with the offenders for the purposes of punishment, not to exclude the application of Section 319 of the Code. The Court further held that the provisions of Section 190 of the Code, which required a complaint to be filed before cognizance could be taken of an offence, did not apply to proceedings under the Act, as Section 11 of the Act provided for a different procedure for taking cognizance of offences. The Court also held that the provisions of Section 319(1) and (4) of the Code were applicable to proceedings before a Special Court constituted under the Act, as Section 12AC of the Act provided that the provisions of the Code would apply to such proceedings, except those excluded by the Act.
Issues: 1. Whether the provisions of Section 319 of the Code of Criminal Procedure, 1973, are repugnant to the provisions of Section 11 of the Essential Commodities Act, 1955? 2. Whether the legal fiction created in Section 8 of the Act was intended to exclude the application of Section 319 of the Code? 3. Whether the provisions of Section 190 of the Code, which require a complaint to be filed before cognizance can be taken of an offence, apply to proceedings under the Act? 4. Whether the provisions of Section 319(1) and (4) of the Code are applicable to proceedings before a Special Court constituted under the Act?
Ratio Decidendi: 1. The provisions of Section 319 of the Code are not repugnant to the provisions of Section 11 of the Act. Section 8 of the Act creates a legal fiction, deeming persons who attempt or abet a contravention of an order made under Section 3 to have contravened that order. This fiction was intended to put attempters and abettors at par with the offenders for the purposes of punishment, not to exclude the application of Section 319 of the Code. 2. The legal fiction created in Section 8 of the Act was not intended to exclude the application of Section 319 of the Code. The purpose of the fiction was to put attempters and abettors at par with the offenders for the purposes of punishment, not to create a separate procedure for prosecuting them. 3. The provisions of Section 190 of the Code, which require a complaint to be filed before cognizance can be taken of an offence, do not apply to proceedings under the Act. Section 11 of the Act provides for a different procedure for taking cognizance of offences, which does not require a complaint to be filed. 4. The provisions of Section 319(1) and (4) of the Code are applicable to proceedings before a Special Court constituted under the Act. Section 12AC of the Act provides that the provisions of the Code would apply to such proceedings, except those excluded by the Act.
Final Decision: The Court dismissed the application, holding that the Special Judge had acted in accordance with law in passing an order to proceed against the applicant under Section 319 of the Code.
( 1 ) BY means of this application under section 482 of the Code of Criminal Procedure, 1973 (herein after referred to as the Code) an order purporting to have been passed under section 319 of the Code directing the applicant to face his prosecution for committing an offence under section 3/7 read with Section 8 of the Essential Commodities Act, 1955 (hereinafter referred to as the Act) is being impugned.
( 2 ) ONE Badal Dass is being prosecuted before the special Judge (Essential Commodities Act) under section 3/7 of the Act. The prosecution Case is that Shri Banal Dass, a licensed miller, failed to supply to the State Government certain quantity of rice thereby contravening clause (3) (i) if the U. P. Rice and Paddy (Levy, Regulation and Trade) Order, 1981. The prosecution examined Shri Jai Prakash, the applicant, as one of its witnesses. In his deposition the applicant admitted that during the relevant period he was running the rice mill in question on behalf of Shri Banal Dass and during the relevant period he was in actual physical control of the rice mill. He also deposed that he was aware that certain amount of rice, had to be supplied to the State Government as a levy. Shri Banal Dass made an application under section 319 of the Code praying that the applicant too be prosecuted along with him. The Special Judge while accepting the said application has taken the view that, prima facie, the applicant has committed an offence. He has, therefore, issued non bailable warrants against the applicant.
( 3 ) LEARNED counsel for the applicant has submitted that on a combined reading of the provisions contained in Sections 8 and It of the Act it is apparent that the learned Special Judge has no jurisdiction to proceed against the applicant without taking a fresh cognizance of the offence as against the applicant on the basis of a report in writing made in accordance with the provisions contained in Section 11. The Special Judge cannot proceed against the applicant by taking resort to the provisions of Section 319 of the Code. In other words, the submission is that by necessary implication the operation of the provisions of Section 319 of the Code stands excluded in proceedings in respect of any offence punishable under the Act.
( 4 ) THE question is : Are the provisions of Section 319 of the Code in any manner repugnant to the provisions of Section 11 of the Act? For answering this question we will have to determine the scope and ambit of Section 11 of the Act, Section 7 of the Act provides for the punishment for the contravention of any order made under section 3 of the Act. Section 8 and 11 may be extracted: Section 8- Any person who attempts to contravene, or abets a contravention of any order made under Section 3 shall be deemed to have contravened that order. Section 11-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 order of, or under authority from the District Magistrate or such other officer as may be empowered by the State Government by general or special order in this behalf. At the time when the Act was brought into the statute book the provisions of Code of Criminal Procedure, 1898 (hereinafter referred to as the Old Code) were in operation. The view taken by the Courts under the Old Code was that once cognizance had been taken of a certain offence by a competent court and it transpired to that court later on that some persons, other than the accused before it, should also face their prosecution for committing the same offence along with accused already before it such persons could be summoned by the Court wit bout taking a fresh cognizance of the offence. However, if the Court came to the conclusion that some other persons were liable to be prosecuted or committing an offence different to the one of which it had taken cognizance but such person should be tried along with the accused already before it,
