1. The applicant Kanhaiya Lal is being prosecuted in the Court of the Sub-Divisional Magistrate Susner for having contravened the provisions of the Madhya Bharat Cotton Textile Control Order of 1948 by selling on 13.1.51, 1 yard cloth to one Nanda in excess of the control price. Soon after the charge was framed, the applicant objected to his trial for the offence on the ground that the police charge sheet on the basis of which the Magistrate took cognizance of the offence is not a report by a public servant and is, therefore, not in compliance with Section 11, Essential Civil Supplies Act, 1946 under which Act the Cotton Textile Control Order was made. The objection was rejected by the trial Magistrate. The applicant then preferred a revision petition to the Sessions Judge of Shajapur raising the additional contention that the report did not contain the facts constituting the offence alleged against him and was, therefore, not in substantial compliance with the requirements of Section 11, Essential Supplies Act. The learned Sessions Judge rejected the revision petition. The petitioner has now come up in revision to this Court.
2. Mr. Patankar, the learned Counsel appearing on behalf of the petitioner, did not dispute before me the fact that the Sub-Inspector who filed before the Magistrate the Charge-sheet against the applicant is a public servant and the charge-sheet against the accused is a report by a public servant as required by Section 11, Essential Supplies Act. The only point pressed before me on behalf of the applicant is that there was no jurisdiction in the Magistrate to try the petitioner because the charge-sheet filed by the Sub-Inspector did not contain a report of the facts constituting the offence, but only mentioned the bare fact that the applicant had sold in "black market" 1 yards of cloth to Nanda and had thus committed an offence under Section 8, Madhya Bharat Essential Supplies (Temporary Powers) Act of Samvat 2006. It was argued that this charge-sheet was not in compliance with Section 11 and the Magistrate could not take cognizance of the offence on this report. In support of this contention, learned Counsel cited before me - Jayantilal Jagjivan v. Emperor AIR 1944 Bom 139 (A) and - Purushottam Devji v. Emperor AIR 1944 Bom 247 (B); - N.G. Chatterji v. Emperor AIR 1946 All 416 (C); 1949 Gwl. 66 (D).
3. On behalf of the State, Mr. Mungre contended that the accused raised no objection before the Magistrate as to the charge-sheet being defective on account of the omission therein of the facts constituting offence with which the applicant was charged; that this point was raised in the Sessions Court for the first time; and that therefore, the applicant cannot be allowed to question the validity of the charge-sheet in this Court. It was further submitted that Section 11, Essential Supplies Act was directory only, and that an omission to satisfy its provisions could not affect the jurisdiction of the Court. The learned Government Advocate sought to distinguish the cases relied on by the learned Counsel for the petitioner by saying that they related to Rule 130(1), Defence of India Rules which spoke of a report of the facts constituting a contravention of the Defence of India Rules and not of a report of the facts constituting an offence, as Section 11, Essential Supplies Act does. It was said that there is a difference between a "report of the facts constituting an offence" and a "report of the facts constituting a contravention of Rules" such as the Defence of India Rules. It was further maintained that the charge-sheet against the applicant contains a statement of facts constituting the offence alleged against the applicant.
4. In my opinion, the contention of the learned Counsel for the applicant is well-founded. Section, 11, Essential Supplies Act is as follows:
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.
5. It is obvious that a Magistrate cannot take cognizance of any offence under the Act if there is before him a report which does not contain the facts constituting the offence alleged or if the report whether complete or incomplete in the facts, is by a person who is not a public servant. The object of this section is to protect persons from being needlessly harassed by rash, baseless or vexatious prosecutions at the instance of private individuals. For taking cognizance of any offence punishable under the Act, the 'sine qua non' is a report in substantial compliance with the requirements of Section 11 of the Act. It would be observed that Section 11 of the Act uses the expression a "report in writing of the facts constituting such offence" and not the expression a "report of such offence". The report must state facts which constitute the offence. This is a requisite of fundamental importance. Mere assertion that an offence under certain section has been committed is only a report of the offence and cannot be regarded as compliance with the letter or spirit of Section 11 of the Act. In the present case on 13.1.51 one Hazarat Shah sent a slip to the Sub-Inspector Police stating merely "Maine kapadeka blek pakada hai Aap fouran aiye." On the basis of this slip, the police took: up the investigation and then on 16.2.51 presented a charge-sheet against the applicant. In col. 7 of the charge-sheet, it was stated:
Is abhiyogaka sankashipta wiwarana yah hai ki Hajarat Shah putra Chhotekhan wilayati niwasi Zedawadne tehriri report kee ki muljirn Kanhai-yalal putra Hiralal Mahajan niwasi Nalkhedase sawa gaj kapda latbha blek marketse Nanda putra Mera chamar niwasi Namukhediko becha tha. Mukaddama kayam hokar anusandhan kiya gaya. Anusandhanki pragatise abhiyukta Kanhaiyalalke wiruddha aparadha dhara 4 Awashyak Padartha Ashayi Widhan Samvat 2006 sabit hai.
Atayewa Kanhailal abhiyukta Swikrut aropa patra number 6:51 dwara prastut hai.
6. In other columns, the names of the accused and witnesses are given. It will be seen that this charge-sheet does not give the facts constituting the offence alleged to have been committed by the applicant. The first part of the statement of facts contained in col. 7 only refers to the report made by Hazarat Shah to the Sub-Inspector that Kanhaiya Lal had sold 11 yards of cloth in 'black market' to Nanda. The other portion of the statement only says that after investigation the offence against the accused was found established. The concrete facts which constituted the alleged offence have not been mentioned anywhere in the chargensheet. The assertion that the applicant sold a piece of cloth in 'black market' to Nanda and the police found the offence established after investigation gives no idea, whatsoever, of the specific acts done by the accused and as to the manner in which they constitute the offence. If the facts constituting the offence are not before the Magistrate, then he is clearly not in a position to apply his mind to the suspected commission of the offence and to take the decision whether he should take judicial notice of the offence. In my opinion, the charge-sheet presented against the applicant does not at all fulfil the requirements of Section 11, Essential Supplies Act and on this charge-sheet, the Magistrate had no power to take cognizance of the offence. The whole of the proceedings are, therefore, without Jurisdiction and must be regarded as invalid.
7. This view is supported by the authorities cited before me by the learned Counsel for the applicant. In 'AIR 1944 Bom 247 (B)', the question was whether a charge-sheet by the police against the accused person was in compliance with the provisions of Rule 130, Defence of India Rules which provided that no Court shall take cognizance of any alleged contravention of these Rules except on a report in writing of the facts constituting such contravention made by a public servant.
In that case, cognizance had been taken upon submission of a charge-sheet in which it was stated that the accused persons were being prosecuted for exporting Toor. The charge-sheet did not contain the facts constituting the contravention. Nor did it mention that the offence committed was of the contravention of the Bombay Retail Trade and Licensing Order. The Bombay High Court held that the charge-sheet did not comply with the provisions of Rule 130, Defence of India Rules inasmuch as it did not contain the facts constituting such contravention, & therefore, the Court could not properly take cognizance of the offence charged.
To the same effect are the decisions reported in AIR 1944 Bom 139 (A)'; AIR 1946 All 416 (C) and -Rachpal Singh v. Rex AIR 1949 Oudh 65 (E). These decisions stress the point that the jurisdiction of a Court taking cognizance of an offence of contravention of the Defence of India Rules depends upon a report made by a public officer in which the1 facts constituting such contravention are stated. These decisions, no doubt, dealt with the question of a report in accordance with Rule 130 of the Defence of India Rules. But the principle laid down in these cases is applicable with equal force while considering the question of a report in accordance with Section 11, Essential Supplies Act. I do not think that the distinction drawn by the learned Government Advocate between the language of Rule 130, Defence of India Rules and that of Section 11, Essential Supplies Act, is a valid one. If the contravention of rule is an offence, then, there is clearly no difference in the meaning of the expression "a report of the facts constituting an offence" and the expression "a report of the facts constituting a contravention of the rule."
8. The other objection of the learned Government Advocate may be disposed of by saying that the objection raised by the applicant touches the jurisdiction of the Court. It is one which goes to the root of the case and can be taken at any stage of the case. It is one which if upheld vitiates the entire proceedings. That being so, it cannot clearly be cured under Section 537, Criminal P.C. which applies to more errors of procedure and not to substantive errors of law affecting the jurisdiction of the Court to take cognizance of an offence.
9. For the above reasons, this petition is accepted and the proceedings held by the Magistrate are quashed.