Sonelal v. State Of Madhya Pradesh And Another

The applicant Sonelal was convicted under section 7 of the Essential Commodities Act, 1955 for contravention of clause 3 of the Madhya Pra­desh Food grains Dealers Licensing Order, 1965, which is an order issued under section 3 of the Act. The case against the applicant started on a complaint made by the Food Inspector on June 25, 1968 to Shri S. N. Tiwari, Magistrate First Class, Jabalpur. The case laid in the complaint was that on April 15, 1968 the applicant who was a shop-keeper was found in possession of 10 quintals of rice and 6 quintals of broken rice for sale which showed that the applicant was dealing in Food grain in contravention of clause 3 of the Licensing Order. The rice and broken rice were seized by the Food Inspector. On November 13, 1968 the applicant pleaded guilty to the charge and was on the same date con­victed by the Magistrate and sentenced to imprisonment till rising of the Court and a fine of Rs.100. The foodgrains that were seized were forfeited to the State. After unsuccessfully challenging his conviction in the Court of the First Additional Sessions Judge, Jabalpur, the applicant has approached this Court in revision.

2. The only contention raised by Shri Gambhir, learned counsel for the applicant is that at the time when the applicant was tried and convicted Shri Tiwari, the Magistrate, was not empowered under section 12-A of the Essential Commodities Act to try offences relating to contravention of Madhya Pradesh Foodgrains Dealers' Licensing Order and the trial and conviction of the appli­cant by Shri Tiwari were without jurisdiction.

3. To appreciate the contention raised by Shri Gambhir it is necessary to refer to section 12-A. This section was inserted in the Essential Commo­dities Act by section 2 of Act 47 of 1964. It was to cease to have effect on 31st December 1966 but by subsequent acts (see acts 14 and 36 of 1967) its life was extended from time 10 time. The section is divided into four sub­sections. Sub section (1) empowers the Central Government to specify any order made under section 3 as a special order for purposes of summary trial if it is of opinion that a situation has arisen wherein the interests of production, supply or distribution of any essential commodity or trade or commerce therein and other relevant considerations, it is necessary that the contravention of the order should be tried summarily. In exercise of the power conferred by this provision the Central Government notified certain orders issued under section 3 in relation to food-stuffs including edible oil seeds and oils to be special orders for purposes of summary trial; (see G. S. R 1842 dated December 24, 1964 as amended by G. S. R. 810 dated June 3, 1965). The Madhya Pradesh Food-grains Dealers' Licensing Order is one of the orders included in the list of special orders so notified. After a notification is issued under sub-section (1) specifying an order to be a special order, sub-section (2) requires that all off­ences relating to contravention of such special order be tried in a summary way and by a Magistrate of the First Class specially empowered in this behalf by the State Government. The wording of this sub section is important and is as under:

"Section 12-A (2) where any notification issued under sub-section (1) in relation to a special order is in force, then, notwithstanding anything contained in the Code of Criminal Proce­dure, 1898 (5 of 1898), all offences relating to the contravention of such special order shall be tried in a summary way and by a Magistrate of the first class specially empowered in this behalf by the State Government or by a Presidency Magistrate, and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:

Provided that, in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year."

Sub-section (3) restricts the right of appeal in cases tried summarily. There is no right of appeal if the sentence imposed is a sentence of imprisonment not exceeding one month or of fine not exceeding two thousand rupees, or both, whether or not any order of forfeiture of property is made in addition to such sentence. Sub-section (4) deals with cases pending at the time of issue of noti­fication under sub-section (1). All pending cases in which no witnesses have been examined are to be tried in a summary way and if the magistrate before whom such a case is pending is not competent to try the same in a summary way, the sub-section requires that "it shall be forwarded to a Magistrate so competent."

4. It is apparent from the language of sub-section (2) that after a noti­fication under sub-section (1) is issued, an offence relating to the contravention of a special order can be tried summarily by a Magistrate specially empowered in this behalf. The question to be decided, however, is whether such an off­ence must be tried summarily and by a Magistrate specially so empowered. In other words the question is whether any other Magistrate cannot try such an offence. The answer to this question necessarily depends upon the cons­truction of sub-section (2). The words "shall be tried in a summary way and by a Magistrate of the first class specially empowered in this behalf by the State Government" lay down two requirements: First, that the offence shall be tried in summary way and secondly, that it shall be tried by a Magistrate of the first class specially empowered in this behalf by the State Government. These two requirements of the sub-section clearly follow from the word "and". Then the use of the word "shall" prima facie goes to show that these requirements are mandatory. This prima facie inference of the mandatory character of the requirements is strengthened by having a look at sub-section (6) which relates to cases pending at the time when a notification under sub-section (1) is issued. The mandate under sub-section (6) is that all pending cases in which no wit­nesses have been examined shall be tried in a summary way and if the Magis­trate in whose Court any such case is pending is not competent to try the same in a summary way, it shall be forwarded to a Magistrate so competent. Thus even a pending case is required to be tried in a summary way by a Magistrate specially empowered under sub-section (2) and if a case is pending before a Magistrate who is not so empowered, he cannot proceed with the trial and must forward the case to a competent Magistrate. If that is the clear intention of the legislature in respect of pending cases, it is reasonable to conclude that a case arising after the notification under sub-section (1) must also be tried in a summary manner and by a Magistrate specially empowered under sub­section (2). Same inference follows from a comparison of sub-section (2) with section 12 of the Essential Supplies (Temporary Powers) Act, 1946 and sec­tion 260 of the Code of Criminal Procedure. In both these enactments the use of the word "may" makes the trial of offences in a summary way merely permissive and if the intention of the legislature was to make the requirements in sub-section (2) of section 12-A permissive or directory, this sub-section would have been worded in the same manner. The change in language and absence of a provision like section 260 (2) of the Code clearly support the inference that the requirements of sub-section (2) of section 12-A of the Act of 1956 are mandatory. Another indication in the same direction is furnished by the non-obstinate clause-"Notwithstanding anything contained in the Code of Criminal Procedure." If the intention of the legislature was merely to enable the trial of the offences falling under sub-section (2) in a summary manner and not to make the trial in that manner and by a Magistrate specially empowered compulsory, it was unnecessary to enact the non obstante clause containing such wide words so as to include within its sweep the entire Code of Criminal Proce­dure and the non obstante clause would have been in some such from-'Not­withstanding anything contained in section 260 of the Code of Criminal Procedure.' In view of all these considerations, I am of the opinion that sub­section (2) of section 12-A prescribes the only manner in which and the only Court by which an offence relating to the contravention of a special order can be tried. The sub-section impliedly prohibits trial in a different manner and by a different Court.

5. There is yet another way of looking at the problem. Section 5 (2) of the Code of Criminal Procedure deals with the trial of offences under other Laws (laws other than the Penal Code). Such offences are to be tried accord­ing to the provisions of the Code of Criminal Procedure but subject to any enactment regulating the manner of trying them. Thus the provisions of the Code regarding the trial of offences will not apply to the extent the manner of trial is regulated by any other enactment. Similarly, section 29 of the Code prescribes the Court for the trial of offences under Laws other than the Penal Code. Such offences are to be tried by Courts mentioned in that behalf in such laws, but if no Court is so mentioned, last four entries in the eighth column of the Second Schedule to the Code will indicate the Court by which such off­ences are to be tried. Now, sub-section (2) of section 12-A of the Essential Commodities Act by enacting that the offences relating to the contravention of special order shall be tried in summary way and sections 265 of the code shall apply to such trial, regulates the manner of trial of these offences which, having regard to section 5 (2) of the Code, must be tried in that manner and in no other manner. Similarly, by enacting that the offences are to be tried by a Magistrate of the first class specially empowered in that behalf by the State Government, the sub-section mentions the Court by which the offences are to be tried and in view of section 29 of the Code the Court so mentioned can alone try these offences. section 29 of the Code was considered by the Supreme Court in State of U.P. v. Sabir Ali A I R 1964 SC 1673. In that case, the respondent was tried by a Magistrate first class for an offence under section 15 (1) of the U. P. Private Forest Act. Section 15 (2) of the said Act provides that "offences under this section shall be friable by a Magistrate of the second or third class". Construing this provision and section 29 (1) of the Code the Supreme Court held that the trial of the respondent by the Magistrate first class was void.

The case of Sabir Ali (supra) is, therefore, a clear authority for the proposition that if a special law mentions a Court by which offences created by such a law are to be tried, trial by any Court not so mentioned will be void. Applying this principle it must beheld that because of sub-section (2,) of section 12-A of the Especial Commodities Act offences relating to contravention of special ciders can be tried only by a Magistrate first class specially empowered in that behalf by the State Government.

6. Learned counsel for the State has drawn my attention to the heading of section 12-A which is "power to try summarily" and has argued that as this heading is same as the heading of section 260 of the code, the intention of the legislature was not to make the provisions of section 12-a compulsive but only enabling. The heading of section 12-A is no doubt same as the heading of section 260 of the Case but the language used in the enacting part of these sections is entirely different. The circumstance that these two provisions bear identical headings cannot, therefore, furnish any assistance in the construction of section 12-A. Conflicting opinions have been expressed on the question as to what regard should be paid to headings of sections while construing an Act of Parliament. Relevant information on that point is to be found in the speech of Lord Upjohn in D. P. P. v. Schildkamp (1969) 3 All E. R. 1640 (H. L.) pp. 1655, 1656. In that case after noticing the divergent views His Lordship expressed his opinion as follows:

"In this somewhat fluctuating state of the authorities what role do cross-headings play in the construction of the Act? In my opinion, it is wrong to confine their role to the resolution of ambiguities in the body of the Act. When the Court construing the Act is reading it through to understand it, it must read the cross-headings as well as the body of the Act and that will always be a useful pointer as to the intention of Parliament in enacting the immediately fol­lowing sections. Whether the cross-heading is no more than a pointer or label or is helpful in assisting to construe or even in some cases to control (he meaning or ambit of those sections must necessarily depend on the circumstances of each case, and I do not think it is possible to lay down any rules."

In Bhinka v. Charan Singh A I R 1959 SC 960, the Supreme Court quoted with approval the fol­lowing passage from Maxwell:

"The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words."

The authorities show that the headings are of assistance and may be read along with the enacting part of sections while construing them. Even the inference that the enacting words of a section are clear or ambiguous may only be drawn after the Act as a whole including the heading of the section is read. But if the conclusion after reading the Act as a whole is that the enacting words in the section are clear and cannot bear the construction suggested with the aid of the heading, the construction so suggested cannot be accepted, for the heading in such a situation has no controlling effect. In the context of utility of pream­bles Lord Somervell said in A. G. v. H. R. H. Prince Augustus All E. R. 49 (H. L.) p. 62.

"If, however, having read the Act as a whole, including the preamble, the enacting words clearly negative the construction which it is sought to support by the preamble, that is an end of it."

Similar rule, in my opinion, must be adopted when the enacting words clearly negative the construction which it is sought to support by the heading. The heading and the construction which it is sought to support must then be dis­regarded. That is the position in the instant case. The plain enacting words used in sub-section (2) of section 12-A and difference in phraseology of that sub-section with section 260 of the Code and section 12 of the predecessor Act clearly negative the construction that the words in sub-section are merely en­abling and not compulsive. Even if the heading of the section supports this construction, it cannot be adopted.

7. It is not disputed that the trial in the instant case was held by a Magistrate who was not empowered under sub-section (2) of section 12-A. The trial of the applicant was, therefore, invalid and void. The learned counsel for the State contended that the defect would be cured by section 537 of the code section 537 can cure defects in the trial only when the trial is held by a Court of competent jurisdiction. If any Magistrate not being empowered by law in that behalf tries an offender, the case falls under section 530 (b) of the Code and the proceedings are void.

8. The revision is allowed. The conviction and sentence and the order of forfeiture of foodgrains are set aside. The amount of fine, if paid, and the foodgrains (and in case they are sold, the sale proceeds) shall be returned to the applicant.

Revision allowed.