S.S Sandhawalia, C.J:— Can a Special Court take cognizance of offences under the Essential Commodities Act, 1955, upon a complaint preferred by a public servant, even after the recent enforcement of clause (e) of sub-section (1) of section 12AA of the said Act—is the solitary, though significant, common question which has been referred for an authoritative decision by the Division Bench in this set of six Criminal Miscellaneous Petitions. Learned counsel for the parties are agreed that this judgment will govern all of them.
2. Since the pristinely legal issue aforesaid arises from facts which are similar, if not identical, it would suffice to notice them briefly from Criminal Miscellaneous No. 7260 of 1983 (Nawal Kishore Agrwal v. State of Bihar). On the 22nd of February, 1983, the petitioner's house was inspected by the authorities under the Essential Commodities Act (hereinafter referred to as “the Act”) and 4 tins of rapeseed oil and 27 tins of Vanaspati were duly seized. Thereafter the petitioner was served with a show cause notice under section 6A of the Act to which he made a detailed reply. Apparently finding the said reply unsatisfactory, the Supply Inspector of Bhagalpur presented a complaint in the Court of the Special Judge, Bhagalpur, under section 7 of the Act. The learned Special Judge took cognizance of the same and a case was registered as P.S Case No. 3 of 1983. Aggrieved thereby the petitioner forthwith presented this criminal miscellaneous petition seeking to quash the entire proceedings. The threshold question sought to be raised herein is that after the insertion and enforcement of section 12AA(1)(e) of the Act [Vide the Essential Commodities (Special Provisions) Act, 1981] on the 1st of September, 1982, the Special Court has no longer any jurisdiction, whatsoever to take cognizance of an offence upon the complaint of a public servant and it can do so only upon a police report. Inevitably the controversy herein rages round the language of section 12AA and it is, therefore, apt and indeed necessary to read the relevant part of the same at the very outset.
“12AA. Offences triable by Special Courts.—
(1) Notwithstanding anything contained in the Code,—
(a) 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 than one for such area, by such one of them as may be specified in this behalf by the High Court;
(b) …….
(c) ……
(d) ……
(e) a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act take cognizance of that offence without the accused being committed to it for trial.”
3. Equally necessary it is to point out that it was common ground before us that the legal issue herein arises only from the enactment of section 12AA and, in particular, the afore-quoted clause (e) thereof. Prior thereto there was no difficulty or hurdle to the cognizance of offences under the Act by the Magistrates (who then had jurisdiction to try such offences) on the basis of a complaint by a public servant if the requirements of section 11 were satisfied. The said section which continues on the statute book is in the following terms:
“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).”
4. It would be plain from the language of the aforequoted provision that it fully Warranted the taking of cognizance of offences under the Act by a Court either on a police report or on a complaint, in writing by any public servant within the meaning of section 21 of the Indian Penal Code. The core question herein, therefore, is whether despite the existence of section 11, the enactment of section 12AA(1)(e) has the effect of barring cognizance of offences under the Act by the Special Court constituted thereby except on a police report.
5. Mr. Braj Kishore Prasad, learned counsel for the petitioners, focussing himself upon technicality (and if one may say on hyper-technicality) had sought to argue that by virtue of section 12AA cognizance by the Special Court can how be only upon the basis of a police report and all other modes of cognizance are barred. It was further sought to be argued that though now all offences under the Act are triable only by the Special Court constituted thereunder yet that would not necessarily imply that the said Special Court has power to take cognizance of all those offences as well. With considerable ingenuity it was sought to be argued by way of analogy that though a Court of Session is vested with the power to try murder cases and other offences triable exclusively by the Court of Session yet it is barred from taking cognizance of the same except on commitment to it by a Magistrate. On the basis of the exceptional and specific provisions of section 193 of the Code of Criminal Procedure it was sought to be argued that the power to try is not necessarily co-extensive with the power to take cognizance.
6. The contention aforesaid may undoubtedly bring some credit to the ingenuity of learned counsel for the petitioners but a close and deeper analysis of the same would equally expose its inherent fallacy. To view the matter in a correct perspective, it is necessary herein to briefly advert to its legislative background. The Essential Commodities Act was promulgated way back in 1955 with the avowed object of controlling the production, supply and distribution of trade and commerce in certain commodities and stringently punishing the infraction of its provisions. The original Act underwent a number of amendments. It would suffice to notice the Essential Commodities (Amendment) Act, 1974 (Act 30 of 1974) and some extensive amendments brought about by the Essential Commodities (Amendment) Act, 1976 (Act 92 of 1976). It would appear that the objects envisaged by the Legislature were not wholly achieved and further amendments ware enacted by the Essential Commodities (Special Provisions) Act, 1981. The relevant part of the objects and reasons for this enactment calls for notice in extenso:
“The Essential Commodities Act, 1955 (hereinafter referred to as the principal Act) provides for regulation of production, supply and pricing of essential commodities. This Act had been amended from time to time.
1. In spite of extensive amendments made in the principal Act in 1976, experience has shown that some of the existing provisions of that Act have not been adequate and effective for expeditious disposal of cases as well as for ensuring the availability of essential commodities at fair prices and for curbing hoarding and black-marketing of, and profiteering in, such commodities. There are large number of Court cases pending under the principal Act all over the country and the price rise has continued unabated in the years 1979 and 1980. For dealing more effectively with persons indulging in anti-social activities like hoarding and blackmarketing and the evil of vicious inflationary prices, it is considered necessary to make the following special provisions by way of amendments to the principal Act for a temporary period of five years, namely:—
(a) in order to expedite the process of prosecutions under the principal Act, it is proposed to provide—
(i) for the trial, in a summary way, of all offences under that Act; and
(ii) for the constitution, for the purposes of such trial, of Special Courts, consisting of a single Judge who shall be appointed by a High Court and who shall be a person who is qualified to be a Judge of a High Court or who is or has been a Sessions Judge or an Additional Sessions Judge, for not less than one year;
(b) ……………”
7. It is in the light of the aforesaid objects and purposes that the larger scheme of section 12AA has now to be construed. The language thereof makes it plain that, as indicated, the avowed object was for an expeditious disposal of cases under the Act by making them triable in a summary way and further making them triable exclusively by the Special Court constituted under the Act which is to be manned by a person who is qualified to be a Judge of the High Court or who is or has been a Sessions Judge or an Additional Sessions Judge for not less than one year. Particular reference in this context is called to the provisions of section 12AC which expressly made the provisions of the Code of Criminal Procedure applicable to the proceedings before a Special Court and further that the same shall be deemed to be a Court of Session. It was because of this deeming fiction that it became necessary to clarify that such a Special Court may take Cognizance of the offences under the Act without the accused being committed to it for trial. Equally it is to be recalled that ordinarily the Special Courts are now to be manned by either the Sessions Judges or the Additional Sessions Judges of not less than one year's standing. Therefore, unless it was so provided and clarified [vide clause (e) of sub-section (1) of section 12AA), the provisions of section 193 of the Code read with section 12AC of the Act would have created an obvious hurdle to the taking of cognizance by the Special Courts of the offence without the same being committed thereto. Consequently clause (e) of sub-section (1) of section 12AA was a clarificatory and enabling provision to dispel all doubts about the Special Court being a Court of original criminal jurisdiction not requiring any commitment thereto. This provision was inserted by way of abundant caution to make patent that even on the police report no commitment would be necessary and the Special Courts would have the power to take cognizance of offences therefrom directly despite the fact that by virtue of section 12AC they are now deemed to be a Court of Session and the persons conducting the prosecution before the Special Court are deemed to be public prosecutors. There is nothing in section 12AA or for that matter in any other provision of the Amending Act which can even remotely indicate that it was the intention of the Legislature to curtail or limit the arena of triable offences under the Act by barring the cognizance thereof on a complaint by a public servant and confining it only to those on a police report. As I have pointed out above, the rationale and the reason for the insertion of clause (e) of sub-section (1) of section 12AA was manifestly in the context of the Special Court having been now deemed to be a Court of Session.
8. Again it was not in dispute and indeed could not be in view of the specific provision of section 12AC that the procedure for trial of offences under the Act is to be governed by the Code of Criminal Procedure subject of course to any specific exception made by the Act itself. Now the Code does not in terms specify the Court which can take cognizance of individual offences. The first Schedule to the Code by column 6 thereof prescribes or indicates the Court by which an offence is triable. Though sections 190 and 193 of the Code refer to cognizance of offences by Magistrates and by the Court of Session respectively, it is significant to recall that the word “cognizance” is not defined either in the Code itself or under the Act. Consequently the word has been the subject matter of large scale judicial dissertation into which it is unnecessary to delve for our purpose. It suffices to say that on general principles the power to try an offence necessarily implies the power to take cognizance of the said offence unless specifically barred or modified by the provisions of the statute. It would indeed be anomalous that the Court which in terms is vested with jurisdiction to try and punish for an offence would not ordinarily have the power even of taking cognizance of the same. An example of an exception to this rule is provided by section 193 which provides that a Court of Session shall not take cognizance of any offence as a Court of original jurisdiction except by commitment to it by a Magistrate. The rationale for this is patent, being obviously directed to the requirement that heinous and serious offences triable by a Court of Section should first go through the process of consideration by a Magistrate, and commitment thereafter to the superior Court. Such a provision is an exception and not the rule. In my view the jurisdiction to try an offence carries with it the implicit power to take cognizance therefor unless expressly taken away by the mandate of a statute.
9. What appears to be otherwise wholly supported on principle seems to be equally buttressed by precedent. A Division Bench of the Bombay High Court in K.R Bhat…Accused Applicant; v. Emperor…Opposite Party. (A.I.R 1931 Bombay 517) took the issue as axiomatic and observed:
“It is next urged on behalf of the accused that the appointment of the Special Magistrate was only for the purposes of the trial of the accused, that it did not empower the Special Magistrate to take cognizance and commit the accused for trial, and therefore the order of commitment is bad. The power to try a case would necessarily include the power to take cognizance.”
10. Once it is held that generically the power to try a case includes the power to take cognizance, it would follow that Special Courts under the Act cannot be barred from taking cognizance by the well-known and accepted mode of a complaint of facts constituting such offences if it satisfies the requirement of section 11 of having been made by a public servant.
11. It has then to be recalled and pointedly noticed that section 11 continues to be on the statute book and has in no way been impaired or repealed by the enactment of section 12AA. It is plain from its language that though couched negatively it now implies the power of the Special Court to take cognizance of all offences under the Act if its requirements of being on a report in writing of the facts constituting such offence by a person who is a public servant stand satisfied. That section 11 is to be somewhat liberally construed, and the functions and purposes of its requirements cannot be better put than in the words of their Lordships in Bhagwati Saran v. The State of U.P (A.I.R 1961 Supreme Court 928):
“It is to be noticed that there port is required to contain only ‘a statement of facts constituting the offence’ and its function is not to serve as a charge-sheet against the accused. The function or purpose of the second of the above three requirements of section 11 is to eliminate private individuals such as rival traders or the general public from initiating a prosecution and for this purpose before cognizance is taken the complaint is required to emanate from ‘a public servant’. The two further requirements, viz., that the report should be in writing and regarding the contents of the report, are to ensure that there shall be a record that the public servant is satisfied that a contravention of the law has taken place. If the contravention in question is sufficiently designated in the report, and in the present case that cannot be disputed, since besides a reference to the notification stated to have been contravened, the report states that the accused had effected sales above the maximum prices specified in the notification, the requirements of the section are satisfied.”
12. The aforesaid authoritative enunciation would leave no manner of doubt that if the requirements of the said section are satisfied, the Special Court would be entitled to take cognizance of offences. If the view canvassed on behalf of the petitioners were to be accepted then the same would virtually render a substantial part of section 11 virtually otiose barring cognizance on police reports. It is a well-settled canon of construction that no part of a statute is to be rendered redundant by a process of interpretation and I find no compelling reason whatsoever to so construe the provision. On the well-settled rule of harmonious interpretation both section 12AA(1)(e) and section 11 must be lead together and each one of them must be given its full meaning and content.
13. Yet again the stand canvassed on behalf of the petitioners would obviously lead to anomalous and startling results. In fact, it would mean that even though a responsible public servant makes a complaint in writing clearly disclosing the facts constituting a serious offence under the Act yet the Special Court would be barred from taking cognizance thereof or to try or punish the same. The statute provides for no commitment proceedings to the Special Court, which is obviously a Court of original criminal jurisdiction. Now Mr. Braj Kishore Prasad, learned counsel for the petitioners, with inimitable fairness had to concede that on his stance a lacuna in the law does seem to appear but he raised the age old hackneyed argument that this was for the Legislature to cure and not by the Courts thought interpretation. I am unable to agree. It is well settled that if an interpretation leads to an anomalous and mischievous results the same is to be avoided. One is reminded of the celebrated observation of Lord Denning in Seaford Court Estates Ld. v. Asher [(1949) 2 K.B 481] with regard to the obligation of a Judge in interpreting a statute in these words:
“A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge can not simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature. That was clearly laid down by the resolution of the judges in Heydon's case, (1584) 3 Co. Rep. 7a, and it is the safest guide today. Good practical advice on the subject was given about, the same time by Plowden in his second volume Eyston v. Studd, (1574) 2 Plowden, 465. Put into homely metaphor it is this: A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases.”
14. I am inclined to believe that the present case, if at all, is merely a matter of ironing out the creases here and there and in no way altering the fabric of the statute.
15. Lastly reliance has rightly been placed on behalf of the respondent State on the recent judgment in A.R Antulay v. Ramdas Sriniwas Nayak ((1984) 2 SCC 500 : A.I.R 1984 Supreme Court 718). Therein also in the context of a somewhat similar provision of section 8(1) of the Criminal Law Amendment Act it was strenuously sought to be argued that the Court of the Special Judge could not take cognizance of an offence on a private complaint in respect of offences committed by a public servant. Categorically rejecting such an argument and holding that the alternative modes of taking cognizance apart from that on police report was not barred, it was observed as follows:
“It is a well-established canon of construction that the Court should read the section as it is and cannot rewrite it to suit its convenience; nor does any canon of construction permit the Court to read the section in such manner as to render it to some extent otiose. Section 8(1) says that the Special Judge shall take cognizance of an offence and shall not take it on commitment of the accused. The Legislature provided for both the positive and the negative. It positively conferred power on Special Judge to take cognizance of offences and it negatively removed any concept of commitment. It is not possible, therefore, to read section 8(1) as canvassed on behalf of the appellant that cognizance can only be taken upon a police report and any other view will render the safeguard under section 5-A illusory.”
16. On a parity of reasoning it has to be equally held here that it is not possible to read clause (e) of sub-section (1) of section 12AA as canvassed on behalf of the petitioners that cognizance can only be taken upon a police report and not by any other methods of taking cognizance under the law.
17. It remains now to advert to the very brief judgment in Criminal Miscellaneous No. 8226 of 1983 (Om Prakash Nirala v. The State of Bihar) disposed of on 13.9.1983, which has struck a discordant note. A perusal of the order recorded in the case would indicate that learned counsel for the parties were somewhat remiss in not adequately canvassing either principle or precedent on the point and equally the history or the other relevant provisions of the Act. The attention of the learned single Judge was not drawn at all to the provisions of section 11 of the Act and the necessity of construing the same harmoniously with the recently inserted section 12AA Inevitably the recent judgment in Antulay's case (supra), which had not then been rendered, could not be considered. With the greatest respect the view taken by the learned single Judge in the aforesaid case and other cases following or taking the same view are not good law and I hereby overrule them. To finally conclude: The answer to the question posed at the outset is rendered in the affirmative and it is held that a Special Court under the Act can take cognizance of offences thereunder upon a complaint preferred by a public servant even after the enforcement of clause (e) of sub-section (1) of section 12AA of the said Act.
18. Once it is held as above, the solitary challenge to the taking of cognizance of the offences under the Act by the respective Special Courts must be obviously repelled. The criminal miscellaneous petitions are, therefore, without merit and they are hereby dismissed.