Rajkumar v. State of U.P & Anr.

Hon'ble Saurabh Srivastava,J.

Heard learned counsel for the parties.

Present petition has been preferred with the prayer to quash/stay the entire criminal proceeding against applicant 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, PS- Kasganj, District Kasganj in pursuance of summoning order dated 16.11.2024.

Learned counsel for the applicant submitted that FIR was lodged by opposite party no. 2 on dated 12.08.2021 against petitioner who is a fair price shop dealer regarding irregularity in distribution of essential commodities. After completion of investigation, the concerned Investigating Officer vide permission of District Magistrate, Kasganj dated 06.10.2022 submitted final report dated 17.12.2022 before the court concerned. After submission of final report, learned Additional Chief Judicial Magistrate, Kasganj, took cognizance of final report under Section 190(1)(b) Cr.P.C. and summoned the applicant vide order dated 16.11.2024 which has been challenged through the instant petition.

While assailing the order dated 16.11.2024, learned counsel for applicant contended that the impugned order is not sustainable in the eye of law since it is in complete violation Section 11 of Essential Commodities Act, 1955 as no sanction was taken 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. Such cognizance and summoning of applicant without order of District Magistrate is abuse of process of law. For substantiating his arguments, learned counsel for applicant relied upon judgment rendered by co-ordinate Bench of this Court in Application u/s 482 no. 17455 of 2012 (Manoj Mehto vs. State of U.P. and another) on dated 5.3.2020.

Per contra, learned AGA vehemently opposed the prayer sought through the instant application.

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.

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).]"

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.

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. Order Date :- 21.3.2025 Shaswat