Mukesh and Etc. vs State Of Rajasthan on 30 September, 1997

Mukesh And Etc. Etc. vs State Of Rajasthan on 30 September, 1997

Background of fact:

In S.B. Cr. Misc. Petn. No. 215 of 1997 Mukesh petitioner is alleged to have been found on 26-3-1989 keeping in his possession in a godown at 22, Godowns Factory Area, Jaipur 15 drums containing different kinds of petroleum products like mobile oil, greese liquid and black-hard and solid black oil, soap wash etc. with certain instruments and utensils to be used in preparing adulterated petroleum products. He was possessing no license to deal in petroleum products. He was, therefore, accused of having contravened clauses 3 and 4 of Lubricating Oil and Greese Order 1987 punishable under Section 7 of the Essential Commodities Act 1955 (The Act). A police report under Section 170/173, Cr. P.C. was made against him to the Special Judge (Essential Commodities Act) Cases on 1 -3-1993 and on the same day the learned Special Judge took cognizance of the case . . In this case the petitioners were found in un authorised possession of 10 cooking gas cylendars and unlawfully transporting them in a jeep on 30-6-1992. They were accused of having contravened clauses 3 and 6 of the Liquified Petroleum Gas (regulation of Supply and Distributor) Order, 1988 (the order) punishable Under Sections 7 of the Essential Commodities Act, 1955. A police report under Section 170/173, Cr.P.C. was submitted in the Court of the Special Judge on 14-6-1993. In the list of witnesses only eight witnesses were cited to be examined at the trial. By 5-5-1994 six witnesses were examined. Rest of the two witnesses were given up and prosecution closed their evidence on 18-5-1994.

Issue:

Whether the provisions contained in clause (f) of Section 12AA(1) and Section 12AA(2) admit of the adoption, in no circumstances whatsoever, of a procedure other than the procedure of summary trial for the trial of the offences under the Act with or without offences under other Acts?

Arguments:

Section 12-AA. Offences triable by special courts.-(1) Notwithstanding anything contained in the Code :-

1. All offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more special Courts that one for such area, by such one of them as may be specified in this behalf by the High court.

A close study of Section 12AA(i)(a) shows that all offences are intended to be tried only by a Special Judge. The stress in clause (a) of Sub-section (1) is on the trial of Case by the Special Courts only, which are created Under Section 12A for the purpose. The use of the word “only” in the language of clause (a) expresses the anxiety of the legislature that the offences under the Act, which in their very nature are offences against the society at large likely to be committed by persons engaged in the business of manufacturing, storing and selling the specified essential commodities, should be tried by such experienced persons from the legal profession who have acquired the qualification of being appointed to the High Court or have worked for at least one year as Sessions Judges or Additional Sessions Judges. The appointment of such experienced persons to man the posts or office of the Special Courts was in confirmity with the scheme underlying the Act. Offences under the Act were intended, from the very beginning of the Act, to be tried speedly. Trial by a summary way is simply one of the recognised mode of speedy trial summary trial is, in general, meant for and adopted for punishable offenders of petty offences contemplated by Section 206, Cr.P.C. But offences under the Act were not, save those contemplated by Section 7(1)(i), petty offences. Besides being anti-people, those were anti-economy of the country also. The trial of such offences speedly was therefore handed over to the experinced Special Judges and they were directed to try such offences in a summary way.

Now on coining to clause (f) of Section 12AA (1) we may note in the language of this clause though it has been mandated that all offences under the Act shal1 be tried in a summary way and the provisions of Section 262 to 265 (both inclusive) of the Code shall apply to such trial, yet the mandate given in clause (a) by the use of the word “only” in the context of trial of the offences by the Special Court is missing, though again, in the phraseology of both the provisions contained in clause (a) and clause (f) the auxilliary verb “shall” has been used. Then, it may further be noted that the rigours of the mandate contained in clause (f) have further been taken away to some extent by the use of the expression “as per as may be” in the language of clause (f). It must, therefore, logically follow that the mandate, as contained in clause (I) with reference to the trial of offences under the Act in a summary way is not of that degree of compulsion which is there in the mandate contained in clause (a) with reference to the requirement of the trial of the offences under the Act by Special Courts. It follows, therefore, that where as no departure can be made from the mandate in clause (a) that the offences under the Act cannot be tried by a Court other than a Special Court constituted Under Section 12A (1), a departure from the mandate in clause (f) with regard to the trial of the offences in a summary way, may reasonably be made if the facts and circumstances of a given case so warrant and require. Therefore there is a basic difference between the characters of the two provisions viz clause (a) and clause (f), as being of mandatory nature. Whereas a departure from the mandate contained in clause (a) would hit at the very jurisdiction of the trial Court and a trial of an offence under the Act by a Court other than a Special Court would be without jurisdiction and would stand vitiated, that would not be the position if an offnee under the Act is tried in a way other than a summary way. Therefore, in the interpretation of the word “shall” used in the language of clause (f) of Section 12AA (1) reasonable construction shall have to be made of the expression “as far as may be” used in the language of that clause. The Act itself does not lay down any rules of procedure to be adopted in the trial of the offences in a summary way. Chapter XXI of the Code of Criminal Procedure 1973, which stands applied to the Act by virtue of Section 12AC speaks of summary trials and Section 262 therein lays down the procedure for summary trial.

Judgement :

All the Special Judges shall submit the complete lists of the cases under the Act pending as on 1-9-97 and being tried by them as per procedure of Sub-section 263 & 264, Cr. P.C. or otherwise, to the Registrar latest by 31 -10-97 & shall report disposal of all cases, being tried as per procedure of Sub-section 263 & 264, Cr. P.C. by 31 -12-1997 & other cases by 31 -3-1998 failing which apart from the disciplinary action which may be taken against them, they may make themselves liable for disobedience of this Order.

The Registrar shall request the Secy: to Govt. of Rajasthan in the Food & Supply Ministry to depute an officer of the Deptt, not below the rank of an Inspector in each of the Court of a Special Judge for a period of at least six months to assist the Special Court in Speedy trial of the offences under the Act. An officer of the Dcptt. So deputed in the Special Court shall be responsible to produce the witnesses and the relevant original records of the Deptt, if requisitioned by the Court, before the Special Court and for that purpose he may obtain necessary process, like summons, warrants, letter of request for production of document etc. from the Special Court. Non-production or non-availability of witness shall ordinarily be no good ground to postpone the hearing of a case in which trial has once begun. In case a trial fails and (he case is dismissed for want of evidence or non-production of witnesses the Special Judge shall fix the responsibility of such failure on the officer responsible for such failure and convey that fact to his Deptt. With direction to place such observation of the Court on the service record of the officer concerned.

Looking to the treatment being given to the trials of socio-economic offences by the Special Courts in general and Special Courts constituted Under Section. 12A of the Act in particular and being conscious of the constitutional obligation under Article 227 of the Constitutional obligation duty Under Section 483, Cr. P.C. I sincerely feel that before it is too late and we see the ship carrying the socio-economic and peoples welfare legislations’ luggage sinking in the deep waters under the load of un-ending de-novo trials of offences under. Such enactments we should listen to the cries of our people in general and the litigating public in particular for “speedy trials” of and “speedy justice”. In such cases and try to save the fast collapsing criminal justice deli very system in the interest of our democratic policy. I, therefore, propose to the Hon’ble Chief Justice that the Presiding Officers of the Special Courts ‘trying the offences under the Act and/or under similar socio-economic legislations in a summary way, be given an opportunity to evolve a procedure in the light of the instructions, directions, guidelines and requirements given hereby for speedy trials of such offences and to enable them to comply with such instructions, directions etc. and to show their worth as conscious judicial officers, they be not transferred from their present positions as Presiding Officers of the Special Courts for a period of at least six months unless administrative exigencies compellingly demand in which case they should be asked in advance not to open the trials of new cases in a summary way & complete the trials of pending cases with intimation to this Court before they leave their present positions. This proposal shall be placed before Hon’ble the Chief Justice to-day or tomorrow for his Lordship’s consideration and necessary orders, if deemed proper.

 A copy of this order shall, forthwith be forwarded to each and every Special Judge, trying offences in a summary way, for information and compliance by them of the instructions, directions, etc. contained herein. The Registry shall report compliance hereof to me on 14-10-97 positively.

This article is written by Kiran Bosiya students of Rajasthan school of law for women. Intern at lega vidhiya.

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