IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30106 of 2007 MD.AKHTAR ALAM Versus STATE OF BIHAR ----------- 4. 07.11.2008 Heard learned counsel for the petitioner and the state. This application has been filed for quashing the order dated 21.5.1994 passed by the Special Judge, Essential Commodities Act, Gaya in Tekari P.S. Case No. 200/1992 (G.R. Case No. 3325 of 1992) whereby the Discharge petition filed on behalf of the petitioner in the aforesaid case, registered u/S 7 of Essential Commodities Act, was rejected. Counsel for the petitioner was put a question why any indulgence should be shown by this court in the case of the petitioner for quashing an order which was passed on 21.5.1994, specially, when the petitioner has been so negligent and has come after such a long delay. Mr. N. K. Agarwal , counsel for the petitioner in reply to this question, has conceded on the point of delay, but has submitted that the F.I.R. was instituted against two brothers, namely, Md. Anwar Alam and Md. Akhtar Alam. So far the present petitioner , Md. Akhtar Alam is concerned, he is not even a licensee under the Unification Order, 1984. The licensee was his brother, Anwar Alam. 2 On this point itself, the proceeding u/S 7 of Essential Commodities Act was not maintainable against this petitioner but it was not considered and prayer for discharge was rejected as early as by order dated 21.5.1994, on behalf of the licensee, Anwar Alam as well as the petitioner, Md. Akhtar Alam. Md. Anwar Alam subsequently, challenged the order dated 21.5.1994 by filing Cr. Revision No. 467/94 for quashing the order dated 21.5.1994, whereby discharge petition of the present petitioner as well as Anwar Alam, was rejected. Cr. Revision No. 467 of 1994 filed by Anwar Alam was allowed by order dated 05.07.1999 and the entire proceeding launched against Anwar Alam was quashed on the ground that the Provisions of the Fertilizer Control Orders were not workable nor the provisions of Bihar Trade Articles (License Unification) Order, 1984 were workable and so far the allegation of contravention of Cement Control Order is concerned, there being no fixation of storage limit of cement under the provisions of the Unification Order, it was also not workable. Counsel for the petitioner has drawn my attention towards the subsequent order dated 18.02.2000 passed by the trial court whereby the petitioner’s prayer for reconsidering his discharge petition, has been rejected on the ground that the 3 proceeding has only been quashed against Anwar Alam by the High Court and there is no specific order in favour of accused Md. Akhtar Alam, hence the proceeding against him shall continue. It is submitted by the counsel for the petitioner that if the Hon’ble High Court by its order dated 5th July, 1999, passed in Cr. Revisions No. 467/94 has held that institution of F.I.R. itself for violation of the Fertilizer Control Order or Cement Control Order is not maintainable as they were not functional on the relevant date when F.I.R. was instituted and the question of law has been decided with regard to the entire proceeding, in that case even if no specific order was passed in favour of the present petitioner, it should have been held by the court below that an illegal proceeding should not continue against the other accused in whose favour , no such order was passed. The finding was not only recorded considering the question of fact but on question of law. The criminal proceeding u/S 7 of Essential Commodities Act was quashed as legally it was not maintainable. In this circumstance, finding recorded in Cr. Revision No. 467/94 was fully applicable in case of the petitioner. It has, however, been submitted that delay and the laches on the part of the petitioner cannot be denied, but continuation of such proceeding in the eye 4 of law itself is not maintainable, it will be an abuse of the process of the court. As such, proceeding against the petitioner only because he has not been vigilant or he has failed to come before this court within the prescribed period of limitation, may not and should not be a ground for not allowing his prayer. The proceeding against him should also not be allowed to continue. It is submitted by the counsel for the petitioner that if the Hon’ble High Court by its order dated 5th July, 1999, passed in Cr. Revisions No. 467/94 has held that institution of F.I.R. for violation of the Fertilizer Control Order or Cement Control Order itself is not maintainable, if the question of law has been decided with regard to the entire proceeding, in that case even if no specific order was passed in favour of the present petitioner, it should not continue against the other accused in whose favour, no such order was passed. The finding was not recorded considering only the question of fact but on consideration of the law. Criminal proceeding u/S 7 of Essential Commodities Act was quashed. Such finding is fully applicable in case of the petitioner. Continuation of a proceeding which is void ab initio is not maintainable, it will be an abuse of the process of the court. If the petitioner has not been vigilant and failed to come before this court within the prescribed period of 5 limitation, it cannot be a ground for allowing continuation of an illegal proceeding and refusing petitioner’s prayer. Considering submissions made by the petitioner and the legal aspect of the matter, entire criminal proceeding of Tekari P.S. Case No. 200 of 1992 including the impugned order dated 21.5.1994 passed by the Special Judge, Essential Commodities Act, is quashed. This application is allowed. AKV/ ( Mridula Mishra, J )