Shivbachan Yadav v. State of U.P & Anr.

Hon'ble Saurabh Srivastava,J.

Supplementary affidavit preferred on behalf of the applicant is taken on record.

Heard learned counsel appearing on behalf of applicant and learned A.G.A. for the State.

This application under section 482 Cr.P.C. has been preferred to quash the impugned charge-sheet dated 23.05.2018 as well as summoning/cognizance order dated 24.07.2024 including the entire proceedings of Criminal Case No. 12459 of 2018 (State vs. Shivbachan Yadav) arising out of Case Crime No. 0281 of 2017, under section 3/7 of the Essential Commodities Act, 1955, Police Station-Jiyanpur, District-Azamgarh, pending in the Court of learned Additional Chief Judicial Magistrate, Court No. 10, Azamgarh as well as to stay the further proceedings of abovementioned case.

Learned counsel for the applicant submitted that FIR was lodged by opposite party no. 2 on dated 17.09.2017 against applicant who is running fair price shop in gram panchayat Vasupar Bankat under the provisions of relevant government orders and control orders issued time to time as lastly under the U.P. Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016 having a valid allotment order/license i.e. quota card renewed till further orders till date. After completion of investigation, the concerned Investigating Officer submitted final report dated 23.05.2018 before the court concerned. After submission of final report, learned Additional Chief Judicial Magistrate, Court No. 10, Azamgarh under Section 190(1)(b) Cr.P.C. summoned the applicant vide order dated 24.07.2024 which has been challenged through the instant petition.

On precise question arguments has been raised by the learned counsel for the applicant while challenging veracity of entire proceeding which includes charge-sheet alongwith summoning order also in pursuance of Case Crime No. 0281 of 2017 in which mandatory provisions of Section 11 of Essential Commodities Act, 1955 has not been complied with, it is the specific stand taken up by the learned counsel for the applicant that while taking cognizance of offence punishable under the Act of 1955 on a report in writing regarding the facts for constituting such offence made by a person who is a public servant as defined in section 21 of the Indian Penal Code has been obtained.

While assailing the order dated 24.07.2024, 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 this Court in Application u/s 482 No. 24800 of 2024 (Zakir Husain vs. State of U.P. and Another) on dated 10.04.2025.

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

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) [or any person aggrieved or any recognised consumer association, whether such person is a member of that association or not]. [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).]"

After hearing the rival submissions extended by learned counsels for the parties and perusing 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.

In view of the above, the instant application is hereby partly Impugned summoning/cognizance order dated allowed. 24.07.2024 passed in Criminal Case No. 12459 of 2018 (State vs. Shivbachan Yadav) arising out of Case Crime No. 0281 of 2017, under section 3/7 of the Essential Commodities Act, 1955, Police Station-Jiyanpur, District-Azamgarh is hereby quashed.

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 :- 16.5.2025 #Vik/- VIKRAM GUPTA High Court of Judicature at Allahabad