Allahabad High Court
Rajkumar vs State Of U.P. And Another on 9 May, 2025
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:75744 A.F.R. Court No. - 74 Case :- APPLICATION U/S 528 BNSS No. - 14125 of 2025 Applicant :- Rajkumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jai Kishan,Vipin Kumar Counsel for Opposite Party :- G.A. Hon'ble Saurabh Srivastava,J.
1. Heard Sri Jai Kishan Rajpoot, learned counsel for applicant and Sri Gyan Prakash, learned A.G.A. for State.
2. Initiation of the matter has been triggered by way of lodging F.I.R. at the behest of opposite party no.2 on dated 12.08.2021 against applicant, who had been fair price shop dealer specifying the irregularity in distribution of essential commodities; after completion of investigation, concerned Investigating Officer, vide specific order dated 06.10.2022 issued by District Magistrate, Kasganj, submitted final report on dated 17.12.2022 before learned court of Additional Chief Judicial Magistrate, Kasganj in Case No.9794 of 2024 (State vs. Rajkumar), whereupon learned Additional Chief Judicial Magistrate, Kasganj took cognizance of offence under section 190(1)(b) Cr.P.C. on dated 16.11.2024, which had been challenged through Application under section 528 BNSS No.9092 of 2025 with specific ground that order dated 16.11.2024 was not sustainable in the eye of law, since it is in complete violation of section 11 of Essential Commodities Act, 1955, since no approval/sanction was taken by order of, or under the authority of District Magistrate or such other officer as may be empowered by the State Government by general or special order and as such the cognizance and summoning order passed against the applicant without order of District Magistrate is abuse of the process of law since order passed under section 11 of Essential Commodities Act was in favour of the applicant.
3. On the basis of arguments so raised by learned counsel for applicant and in the light of judgement dated 05.03.2020 passed by in Application u/s 482 Cr.P.C. No.17455 of 2012 (Manoj Mehto vs. State of U.P. and Another), earlier Application under section 528 BNSS No.9092 of 2025 has been allowed by way of quashing summoning order dated 16.11.2024 passed in Misc. Case No.01 of 2023 (Sunil Kumar vs. Raj Kumar) arising out of Case Crime No.440 of 2021, under sections 3/7 of Essential Commodities Act, 1955, P.S. Kasganj, District- Kasganj vide order dated 21.03.2025, but at the same time, liberty was extended in favour of learned court concerned for taking cognizance against the applicant, if required as per law, in due compliance of section 11 of Act of 1955; the extract of determination along with conclusion while passing order dated 21.03.2025 is reproduced herein below:-
“6. Since, learned counsel for applicant argued the matter on legal issues as such the process to issue notice to respondent no. 2 is hereby dispensed with.
7. Before proceeding, a ready reference of Section 11 of E.C. Act (State Amendment of U.P. 1955), is as under:-
“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 section 21 of the Indian Penal Code (45 of 1860) 1[or any person aggrieved or any recognised consumer association, whether such person is a member of that association or not]. 1[Explanation.?For the purposes of this section and section 12AA, ?recognised consumer association? means a voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force.] state amendment Uttar Pradesh.? In section 11, for the words ?by a person who is a public servant as defined in section 21 of the Indian Penal Code,? substitute the words ?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.? [Vide Uttar Pradesh Act 9 of 1974, sec. 7 (w.e.f. 24-4-1974).]”
8. Having regards to judgment rendered by co-ordinate Bench of this Court in case of Manoj Mehto (supra) and from perusal of the records, it is crystal clear that compliance of Section 11 of the Act of 1955 has not been made in the present case, since it is well established that order of the District Magistrate or authorization by him is essential for taking cognizance, which is missing in the present case. This vitiates cognizance taking in the offence by Magistrate concerned. It is under abuse of process of law. Accordingly, this application is to be allowed.
9. The instant application is hereby allowed. Impugned summoning order dated 16.11.2024 passed in Misc. Case no. 1 of 2023 (Sunil Kumar vs. Rajkumar) (arising out of Case Crime no. 440 of 2021) under Section 3/7 of Essential Commodities Act, Police Station Kasganj, District Kasganj is hereby quashed.
10. The above mentioned order will not preclude the learned court concerned for taking cognizance against applicant, if required, as per law, in due compliance of Section 11 of the Act of 1955.”
4. After passing order dated 21.03.2025 by this Court, learned Additional Chief Judicial Magistrate, Kasganj passed order dated 02.04.2025, through which liberty has been invoked as provided under para-10 of the judgement dated 21.03.2025 and directed for further investigation by way of assuming that the liberty is given to take cognizance post sanction, at the same time directed the concerned Investigating Officer to seek sanction and posted the matter for 01.07.2025.
5. The instant application under section 528 BNSS has been preferred for challenging order dated 02.04.2025 passed by learned Additional Chief Judicial Magistrate, Kasganj in Case No.9794 of 2024 (State vs. Rajkumar) under sections 3/7 of Essential Commodities Act, 1955, P.S. Kasganj, District- Kasganj.
6. Learned counsel for applicant submitted that learned Additional Chief Judicial Magistrate, Kasganj was not empowered to compel the concerned Investigating Officer to seek sanction for prosecution against the applicant, once competent authority, i.e., District Magistrate, Kasganj already showed his satisfaction over the inquiry conducted by the then Investigating Officer, through which certain evidences has been put forward, which directly indicates that no further proceeding against the applicant is required and as such final report prepared by the concerned Investigating Officer has been duly approved by District Magistrate, Kasganj on dated 06.10.2022 under section 11 of Essential Commodities Act.
7. It is next submitted by learned counsel for the applicant that learned Additional Chief Judicial Magistrate, Kasganj made patent illegality which is apparent on face of record for two times; once when the final report has been submitted with proper approval of competent authority, i.e., District Magistrate, Kasganj, there was no occasion available before learned court concerned to proceed in pursuance to section 190(1)(b) Cr.P.C. vide order dated 16.11.2024 and thereafter while passing order dated 02.04.2025, an illegal direction was passed for further investigation in pursuance to section 173(8) Cr.P.C.
8. Learned counsel for applicant further submitted that learned court concerned by way of adopting provision available under section 190(1)(b) Cr.P.C. while passing order dated 16.11.2024, which has already been quashed by this Court again invoking provision under section 173(8) Cr.P.C. while passing order dated 02.04.2025, which impugned the present application; in this case the specific provision of section 11 of Essential Commodities Act, 1955 is becoming redundant and prosecution which strictly governs with the provision contained under Essential Commodities Act since the implication of applicant is under sections 3/7 of Essential Commodities Act, 1955 has been illegally ignored.
9. For substantiating the arguments raised by learned counsel for applicant, he relied upon the judgement rendered by Hon’ble Apex Court in case of Vasanti Dubey vs. State of Madhya Pradesh, decided on 17th January, 2012 in Criminal Appeal No.166 of 2012 [Arising out of Special Leave Petition (Crl.) No.1548 of 2011], the relevant extract of judgement mentioned above under para- 16 is quoted herein below:-
“16. When the facts of the instant matter is further tested on the anvil of the aforesaid legal position, we find that the Special Judge instead of following the procedure enumerated in the Cr.P.C. appeared to insist on rejecting the closure report given by the Special Police Establishment, Lokayukta Office and in the process consistently committed error of law and jurisdiction not only once, but twice. On the first occasion when the order of the Special Judge was quashed and set aside by the High Court granting liberty to the Special Judge either to take cognizance under Section 190(c) or order for further investigation as he had committed an error of jurisdiction by directing the police to straightway submit the charge-sheet against the accused-petitioner, the Special Judge did not consider it appropriate to take cognizance but ordered for further investigation by Lokayukta Police and when the matter was reinvestigated by the Special Police Establishment of the Lokayukta Office, the Special Judge in spite of the finding of the investigating agency holding that no further material to proceed in the matter was found, refused to accept the closure report and this time it further realized that it could not proceed in the matter as there was no sanction for prosecution, which the Special Judge obviously noticed since he was not in a position to take cognizance directly under Sections 7, 13(1)(d) of the Prevention of Corruption Act in absence of sanction which was a statutory requirement. In spite of this, he refused to accept closure report but recorded a direction to obtain sanction for prosecution of the appellant and thereafter ordered for reinvestigation of the complaint for the second time creating a peculiar and anomalous situation which is not in consonance with the provision of the Code of Criminal Procedure enumerated under the Chapter relating to conditions requisite for initiation of proceedings.”
10. Per contra, learned A.G.A. although vehemently oppose the prayer as made in the instant application and rebutted the stand taken up by learned counsel for applicant by way of submitting that learned court concerned proceeded in the matter in pursuance to judgement dated 21.03.2025 passed by this Court, wherein liberty has been extended and the same has been invoked by way of directing concerned Investigating Officer for further investigate the matter in pursuance to section 173(8) Cr.P.C. and as such order impugned to the instant application does not contain any illegality and the same is in the strict consonance with the procedure available under Code of Criminal Procedure.
11. After hearing rival submissions extended by learned counsel for the parties, arguments raised by learned counsel for applicant in respect of fresh order passed by learned court concerned vide order dated 02.04.2025, which impugned the instant application, the same was uncalled for, since there is hardly any liberty extended by this Court while passing judgement and order dated 21.03.2025 and the same cannot be treated to deviate the proceedings available under the Special Act by way of taking recourse to the proceedings available in Criminal Procedure Code, since the applicant has been implicated in pursuance to allegation wherein the penalty has been provided under the Special Act and the specific procedures are also defined therein, learned court concerned by way of ignoring the strict provisions, specifically defined under section 11 of Essential Commodities Act, is not permissible in the eye of law and seems to be unjustified.
12. The arguments raised by learned A.G.A. specifically in respect of invoking liberty granted by this Court itself is not tenable in the eye of law since post sanction or further investigation has never been directed, but the liberty was granted in favour of learned court concerned for taking fresh cognizance of offence in the strict compliance of section 11 of Essential Commodities Act, if required.
13. The order passed by learned court concerned is not in consonance with the liberty as granted vide order dated 21.03.2025, it would have been in the nature for exonerating/acquitting the applicant in absence of specific orders for prosecution in pursuance to section 11 of Essential Commodities Act, which was not available before the learned court concerned. Learned court of Additional Chief Judicial Magistrate, Kasganj taken up the liberty available under para-10 of the judgement and order dated 21.03.2025 by way of invoking the provisions available in Criminal Procedure Code, which will not be applicable when the applicant has been implicated in pursuance to sections 3/7 of Essential Commodities Act, 1955, which is a Special Act to be followed, wherein the specific provisions are available and the matter has to be dealt in accordance with the same.
14. In the light of observation as made above along with the dictum pronounced by Hon’ble Apex Court in case of Vasanti Dubey (supra), order dated 02.04.2025 passed by learned Additional Chief Judicial Magistrate, Kasganj is hereby set-aside; once it has been crystal clearly proves that there is hardly any sanction of prosecution in pursuance to section 11 of Essential Commodities Act available, no purpose will be served to send the matter back to learned court concerned and as such entire proceedings arising out of Case Crime No.440 of 2021 instituted as Case No.9794 of 2024 (State vs. Rajkumar) is hereby quashed and set-aside.
15. The instant application u/s 528 BNSS stands allowed accordingly.
Order Date :- 9.5.2025
Saif
(Saurabh Srivastava, J.)
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