JUDGMENT S.H.S. Abidi & S. Hoda, JJ. - Prem Prakash Sharma and Ganesh Dutt Mishra have filed the two writ petitions being Cr.W.J.C. Nos. 90 of 1988 and 228 of 1989 respectively for quashing (A) the First Information Report in Kotwali Gandhi Maidan (Patna) P. S. Case No. 970 of 1988—State v. Tapeshwar Singh and others, filed by R. K. Singh, Administrator of Bihar State Co-operative Marketing Union Ltd, (hereinafter referred to as "BISCOMAUN"), vide letter No. A. D. to the Officer-in-charge of Kotwali P. S. Gandhi Maidan, against Tapeshwar Singh, Chairman of BISCOMAUN, P. P. Sharma I. A. S., the then Managing Director of BISCOMAUN, G. D. Mishra the then Advisor (Rehabilitation) BISCOMAUN and O. P. Agrawal, Niranjanlal Agrawal, Bansi Lal Agrawal and Gopal Lal Agrawal the four Directors of M/s Rajasthan Multi Fertiliser Pvt. Ltd. with head quarters at Bicharadih, Udaipur, (hereinafter to be referred to as "Firm"), (B) two charge-sheets i.e. No. 102 of 1988 under section 7 of the Essential Commodities Act (hereinafter referred to as the "Act") filed in Special Case No. 90 of 1988 and on i.e. No. 103 of 1988 under sections 409, 420, 467, 468 and 471 of the Indian Penal Code (hereinafter referred to as the "Code") filed in the court of the learned Chief Judicial Magistrate, Patna, both arising out of the said Kotwali (Gandhi Maidan) P. S. Case No. 910 of 1988. 2. The Cr.W.J.C. No. 90 of 1989 was filed on 17-3-89 and after several dates it was admitted on 31.3.89 after which the State of Bihar filed the S.L.P. No. 1342 of 1989. The Supreme Court rejected it on 21.8.89 passing the order "The Special Leave petition is rejected but it is directed that the writ petitions may be placed before any bench of the High Court for expeditious disposal and it is expected that the High Court will hear and dispose of the petition within one month from today". Then on 23-8-89 Cr.W.J.C. 228 of 1989 filed by G.D. Mishra was also admitted and was ordered to be heard with Cr.W.J.C. No. 90 of 1988. On 14-9-89, Cr.W.J.C. No. 280 of 1988 Tapeshwar Singh v. State of Bihar was admitted and ordered to be heard with this writ petition. The petitioner P.P. Sharma moved this court on 11-9-89 for the hearing of the petition in view of the said order of the Supreme Court dated 21-8-89. On 14-9-89, Cr.W.J.C. No. 280 of 1988 Tapeshwar Singh v. State of Bihar was admitted and ordered to be heard with this writ petition. The petitioner P.P. Sharma moved this court on 11-9-89 for the hearing of the petition in view of the said order of the Supreme Court dated 21-8-89. This court fixed 16-9-89 for the bearing of the writ petitions and also directed the opposite parties to file any counter affidavit if so desired by them. No counter affidavit was filed by the State. On 19-9-89 two affidavits both sworn by the Investigating Officer of the said Gandhi Maidan P.S. Case No. 970 of 1988 were filed on behalf of the State and the other on the direction of the informant for stay of the hearing of the writ petitions on the ground that the State was intending to move the Supreme Court for the transfer of the case to some other High Court. But the Bench hearing the writ petitions following the said order of the Supreme Court, rejected the application by a detailed order. The Cr.W.J.C. No. 280 of 1988 was, however, withdrawn. The hearing of the two Cr.W.J.C. Nos. 90 of 1989 and 228 of 1989 continued on 19th of September 1989 to 21st of September 1989. Then the counsel for the State sought adjournment on 22-9-89, 25-9-89, 27-9-89 and 17-10-89. The hearing of the case was also interrupted due to strike by the lawyers of the court. On 24-10-89 the Bench was re-constructed as the Presiding Judge of the Bench was transferred to another court as Chief Justice. When the Bench was re-constituted one of the Judges declined to hear the case so the present Bench was reconstituted which started hearing from 1-11-89. The learned counsel for the petitioners again argued the case and also submitted written argument. The then Advocate General argued the case on behalf of the State from 8th to 10th of November 1989 before this Bench and sought adjournment on 15-11-89. In the meantime the State counsels were changed. It was at last on 23-1-90 that the case had been fixed on 25-1-90 with observation that no adjournment will be granted to any one. The Government Advocate argued on behalf of the State on 25-1-90, 29-1-90 and 30-1-90. Then on behalf of He informant R.K. Singh, the then Advocate General was heard on 6-2-90, 7-2-90 and 8-2-90. It was at last on 23-1-90 that the case had been fixed on 25-1-90 with observation that no adjournment will be granted to any one. The Government Advocate argued on behalf of the State on 25-1-90, 29-1-90 and 30-1-90. Then on behalf of He informant R.K. Singh, the then Advocate General was heard on 6-2-90, 7-2-90 and 8-2-90. Then the case was reserved for judgment. Then the opposite parties in this case had been seeking adjournments resulting in this delay in disposal of the case. 3. P. P. Sharma (the petitioner in Cr.W.J.C. 90/89) is an I.A.S. officer of the Bihar cadre. He served the Govt. of India. After his return from Government of India he was appointed as the Registrar of Co-operative Societies on 9-7-85. He was given additional charge of Managing Director of BISCOMAUN after the transfer of the then Managing Director Mr. K.S. Kang from 16-5-86. Later on 30-12-86 he was given super time scale of the I.A.S. and promoted to the rank of Commissioner and posted as the Secretary, Department of Co-operative, Bihar. He was given additional charge of office of the Registrar, Co-operative Societies, Bihar, and further additional charge as Managing Director, BISCOMAUN. Thus from 31-12-86 to 14-6-87 he was in triple charge of Secretary, Department of Co-operative; Registrar Co-operative Societies & Managing Director of BISCOMAUN. It was on 14-6-87 that Sri Sanjay Srivastava took over charge of Managing Director from the petitioner. Sri R.K. Singh joined as the Managing Director on 9-7-88 at 8.30 P.M. On 30-7-88 BISCOMAUN was superseded by order of the State Govt. The same day on 30-7-88 R.K. Singh assumed charge as Administrator of superseded BISCOMAUN. 4. BISCOMAUN is a federation of Co-operative Societies and as the apex body it has the role, inter alia of supply of fertilisers to farmers through its depots and godowns numbering about 550 throughout the State of Bihar. The condition of BISCOMAUN had deteriorated to such an extent that in April 1985 the Governor of the Reserve Bank of India closed all bank accounts of BISCOMAUN as the State Govt. had failed to pay arrears due to BISCOMAUN and as a result of which BISCOMAUN could not clear its dues with the commercial banks. The condition of BISCOMAUN had deteriorated to such an extent that in April 1985 the Governor of the Reserve Bank of India closed all bank accounts of BISCOMAUN as the State Govt. had failed to pay arrears due to BISCOMAUN and as a result of which BISCOMAUN could not clear its dues with the commercial banks. In such a situation in June 1985 Sri Arun Pathak the then Finance Secretary wrote a letter to the Governor of Reserve Bank of India that the State Government was making a detailed programme for rehabilitation of the BISCOMAUN and after reconciliation of accounts, dues of BISCOMAUN would be paid by the State Government to the BISCOMAUN. As a follow up action of the said letter of the Finance Secretary a re-habilitation programme was drawn under the guidance of the said Secretary. To negotiate the terms of re-habilltation of the BISCOMAUN and re-payment of outstanding dues with the Reserve Bank of India a team of officers of the State of Bihar headed by the said Finance Secretary had gone to Bombay. The rehabilitation plan was submitted by the then Managing Director of BISCOMAUN. At last the Governor, Reserve Bank of India, welcomed the plan of rehabilitation and laid down the conditions of repayment of dues of BISCOMAUN at the rate of Rs. 13 crores for a period of five years. The Finance Commissioner the, issued an irrevocable latter of authority to Reserve Bank of India to debit the account of the State Government to the tune of Rs. 13 crores each year till the entire dues of Rs. 65 crores stood re-paid. It was on 17-7-86 that the State Government laid down the condition that purchase of fertiliser by BISCOMAUN shall be done only with the prior approval of the State Agriculture Department. 5. P.P. Sharma after taking over the charge as Managing Director on 26-5-86 submitted a report (Annexure-1) dated 2-9-86 regarding the procurement and sale of fertiliser through BISCOMAUN in which he discussed many other things about the price incentive schemes introduced by BISCOMAUN, stock of fertiliser in hand and the projection of the requirement of the fertiliser in the next year. Upon this report there was a high powered committee meeting consisting of the Chief Minister, Agriculture Minister, Co-operative Minister besides other officers including the Chairman of the apex Co-operative bodies of the State held on 13-9-86. Upon this report there was a high powered committee meeting consisting of the Chief Minister, Agriculture Minister, Co-operative Minister besides other officers including the Chairman of the apex Co-operative bodies of the State held on 13-9-86. Several decisions were taken by the said committee including one that for the remaining period of Kharif of 1986, 30,000 Metric Tonnes (in short "M. T.") of nitrogenous fertiliser be purchased by the BISCOMAUN and that the State Government also agreed to pay the dues of BISCOMAUN of Rs. 13 crores for next five years as said above. Annexure-2 to this petition is the true copy of the proceeding of the said meeting dated 13-9-86. Further a notification of the State Government dated 18-10-85 (Annexure-3) was issued by the Agriculture Department, Government of Bihar, under the signature of the Special Secretary of Agriculture Department to the effect that the State Government had decided to reduce the number of mixed fertiliser for manufacture and sale in the State of Bihar to only 5 grades which included the mixed fertiliser of NPK (15: 15 7) and that apart from the said 5 grades of fertilisers no other grades of mixed fertiliser could be stocked, sold or manufactured throughout the State of Bihar. 6. M/s Rajasthan Multi Fertiliser Pvt. Ltd. (the firm) was granted certificate of registration (Annexure-4) by the registering authority in the State of Bihar namely Dr. D.N. Ram, Director of Agriculture, vide registration No. 814 issued on 8-8-85 whereby the firm was given the area of operation for the whole of Bihar valid upto 31st of March 1985. Subsequently vide letter dated 29-7-86 the said Director of Agriculture had extended the certificate of registration of the firm up to the 31st of March 1989 vide Annexure-5, for the fertiliser 15:15:7½ and 18:18:10. Along with the said renewal an enclosure was also sent being letter No. 9981 dated 29-7-86 saying that under the Fertiliser Control Order, 1985 sample of the fertiliser shall be drawn by the notified fertiliser inspectors from time to time. It also mentioned that each selling centre (depots of BISCOMAUN) shall be registered separately and that the nitrogenous fertiliser shall be given on prices prescribed by the Govt. of India. The firm was also granted specific permission to import the permitted quantity of fertiliser in Bihar. The B.C. allocation was given to this very firm for Bihar. It also mentioned that each selling centre (depots of BISCOMAUN) shall be registered separately and that the nitrogenous fertiliser shall be given on prices prescribed by the Govt. of India. The firm was also granted specific permission to import the permitted quantity of fertiliser in Bihar. The B.C. allocation was given to this very firm for Bihar. The firm had also been granted certificate (Annexure-6) from the said laboratory of Rajasthan vide letter No. 8826 dated 16-11-85 to the effect that the fertiliser produced by the said firm was of standard quality. The State of Bihar vide notification No. 10711 dated 14-7-84 (Annexure-8) had fixed the prices of the 5 brands of granular fertiliser and the price of 15:15:7½ was fixed at Rs. 2,559/- per M. T. The firm being a licensed firm to keep 15:15:7½ in the State of Bihar and that the price of the brand of fertiliser was fixed by the State Government, it was subsequently given the permission to import 5,000 M.T. of NPK 15:15:7½ in the State of Bihar during the year 1986-87 provided that the Rajasthan Agriculture directorate had no objection. The said letter (Annexure- 7) was issued under the memo No. 10932 dated 16-8-86. In this way this firm was given E.C. allocation. The price had also been fixed. Several scope was left for any other firm to come in and so there was no question of any tender or any competitive rate. This was all done before P.P. Sharma, Managing Director of BISCOMAUN. 7. The firm sent a letter (Annexure-9) dated 19-8-86 to the BISCOMAUN addressed to the Managing Director on the subject of supply of NPK 15:15:7-1/2 and 18-18:10 giving various details of the description of the fertiliser, packing, supply, terms of payment and the rate at Rs. 2550/- per M.T. plus local taxes. On receipt of this letter the Advisor G.D. Mishra, endorsed the same to the Special Officer, Fertiliser, on 19-8-86 which in turn was endorsed by the Special Officer, Fertiliser, to one Jogendra Babu Assistant in-charge of Fertiliser section on 20-8-86. This letter did not pass through the Managing Director, P.P. Sharma. On 5-10-86 the firm sent another letter (Annexure-10) to the Chairman offering to sell the said Suraj brand fertiliser at attractive term. This letter did not pass through the Managing Director, P.P. Sharma. On 5-10-86 the firm sent another letter (Annexure-10) to the Chairman offering to sell the said Suraj brand fertiliser at attractive term. In this letter it was said that the firm had earlier sent a letter (Annexure-9) to the Managing Director saying that they were interested in selling the Fertiliser of the said brand and at the said price. On 16-10-86 the Advisor endorsed this letter (Annexure-10) to the Managing Director with the endorsement "Please examine the same and put up note in the interest of urgent need of mixed fertiliser". After the aforesaid endorsement of the Chairman the letter was sent to the Advisor to examine the same. This letter (Annexure-10) had not passed through the Managing Director but was placed before him only after the Advisor prepared a note and put up before the Managing Director. 8. The Advisor on 23.10.86 endorsed a letter No. AR-662 (Annexure-11) to the Director of Agriculture, Govt. of Bihar, on the subject of sale of NPK mixed fertiliser (15:15:7½ and 18:18:10) and said that the firm had offered to sell the Suraj brand mixed fertiliser 15:15:7½ to BISCOMAUN that it was a new brand for Bihar and so the Advisor sought the opinion of the Director about the suitability of the said fertiliser to the soil condition of Bihar and that the firm had further quoted the price of Rs. 2,550/-. The Advisor asked the Director as to whether new price had been fixed for the fertilier and if so the same may be intimated to him and if not the old price may be sent. On 25.10.86 a meeting of the field officers was convened wherein demand of fertiliser in the various parts of Bihar was assessed and estimated at Rs. 2,500/- per M.T. and it was decided that as the earlier popular brand Suphla 15:15:15 was not available as such a substitute fertiliser thereof may be procured. The Advisor after writing the said letter (Annexure-11) and ascertaining the need of mixed fertiliser in Bihar and also faced with the situation of Rabi season had already commenced from October to March next year, endorsed a letter dated 10.11.86 to the Special Officer (F) and sought his opinion which was sent and it is said to be on the record. The Advisor submitted a note (Annexure-12) dated 14.11.85 for purchase of fertiliser to the Managing Director pointing out therein that the firm had valid registration for Bihar, that E. C. allocation has been granted by the Director, Agriculture, Government of Bihar, who has recommended the use of this brand in Bihar, that the demand had been assessed in the meeting of the field officers and S. O. (F) had given notes on the proposal that the price has been fixed at Rs. 2509.50 paise per M. T. inclusive of sales tax as against the rate fixed 2559/- per M. T. exclusive sales tax by the Director of Agriculture, that the Chairman has discussed the proposal in detail with the Advisor and hence approval of the Chairman be also taken. The Managing Director P. P. Sharma keeping in view the fact as detailed above that the Agriculture Department has given permission to the firm to sell 15,000 M. T. of 15:15:7½ fertiliser for the year 1986-87, that the price has been fixed by the Government, that the popular Suphla brand was not available and so a substitute of NPK 15:15:7½ was being purchased on trial basis, that according to note (Annexure-12) demand has been assessed by the field officers in the meeting held on 25.10.86 that the Advisor had suggested terms and condition imposed on the firm and that the Special Officer. Fertiliser, has also put up a note, so the Managing Director endorsed the said note of the Advisor to the Chairman that the endorsement may kindly be approved and the Chairman on 20.11.86 approved it. This proposal to purchase was subsequently approved and confirmed by the Board of Directors of BISCOMAUN. 9. After the approval of the Chairman the Advisor placed orders (Annexure-13) on 22.11.86 for supply of 2,500 M. T. of NPK 15:15:7½ at the rate of Rs. 2509.50 paise F.O.R. destination inclusive of all taxes, although the Government notification was at the rate of Rs. 2,550/- per M. T. plus sales tax. 9. After the approval of the Chairman the Advisor placed orders (Annexure-13) on 22.11.86 for supply of 2,500 M. T. of NPK 15:15:7½ at the rate of Rs. 2509.50 paise F.O.R. destination inclusive of all taxes, although the Government notification was at the rate of Rs. 2,550/- per M. T. plus sales tax. In this supply order letter dated 22.11.86 besides giving out the terms and condition as spelt out in the aforesaid rate of G. D. Mishra to P.P. Sharma, the firm was directed to send the fertiliser as per specified quantity to each of the 172 depots (as per attached list) out of 550 depots of BISCOMAUN in Bihar, as being specified by the field officers regarding the NPK (15:15:7½). Each depot of BISCOMAUN has individual licence, granted by the Director of Agriculture and it also works as an independent business centre. After placing this order the Advisor informed by his letter (Annexure14) dated 23.11.86 to all the depot Managers with regard to the procurement and purchase of NPK 15:15:7½ being duly registered and approved by the Agriculture Deptt., conditions for supply and rates, and that the sample be sent to the State laboratory for testing the quality of the fertiluser under the guidance of the area officers. Copies of this letter had been sent to the Special Secretary, Agriculture Deptt. and the Director, Agriculture. The term of Annexure-13 were favourable to the BISCOMAUN from the price angle and also with condition of rejection if the quality of the fertiliser was not up to specification, withholding of 10% of the payment until the satisfactory proof of nutrient value was received from a recognised laboratory and that the payment will be made within ten days of the receipt of receipted chalan from the depot Managers by the headquarters. The Advisor on behalf of the firm placed purchase orders vide letter dated 19.12.86 (Annexure-15) for additional supply of 408 M. T. for the districts of Darbhanga and Madhubani on receipt of requisitions from the depots of the said district. The information of this additional purchase order for 408 M. T. of fertiliser was sent to the Special Secretary, Agriculture and Director of Agriculture, Government of Bihar. The information of this additional purchase order for 408 M. T. of fertiliser was sent to the Special Secretary, Agriculture and Director of Agriculture, Government of Bihar. The decision to place orders for the aforesaid purchase of fertilisers from the firm and the purchase was confirmed by the marketing and business committee of BISCOMAUN in its meeting held on 16.4.87 under the Chairmanship of Jagdish Ojha, Director. The decision to purchase the fertiliser in the financial years 1986-87 was approved by the committee and it was circulated by the memo No. BM/275 dated 5.5.87 (Annexure-16). This meeting was not attended by the Managing Director. 10. The Deputy Director, Quality Control in the State Laboratory, Mithapur Farm of the State Agriculture Department vide his letter No. 1412 dated 16.12.86 (Annexure 40 to Cr.W.J.C. 228/89 and copy to the Managing Director BISCOMAUN) informed to Director Agriculture, Government of Bihar, that the depot Managers of BISCOMAUN were sending fertiliser samples to the State laboratory for testing and were also wanting to pay the fees for testing; but the Deputy Director could not accept the samples sent by the depot Managers of BISCOMAUN as they were not inspectors of fertiliser under the Fertiliser Control Order and there was no provision for the State laboratory to test the samples sent by anyone other than the Inspectors of fertilisers. Further even the State laboratory was getting the NPK mixture tested in the Central laboratory at Faridabad near Delhi. The Deputy Director o therefore, requested the Director of Agriculture, Government of Bihar to direct the BISCOMAUN not to send the samples to the State laboratory for testing. Then, Advisor G.D. Mishra sent letter No. 759 dated 8.1.87 (Annexure-41 to Cr.W.J.C. 228/89) to all the senior Range Officers of BISCOMAUN referring to the refusal of the State laboratory to test the samples sent by Depot Managers of BISCOMAUN. He also requested the District Agriculture Officers to get the samples collected by Inspectors of fertiliser and get them tested in the State laboratory. Though there was no statutory and contractual obligation yet in the mean time the Advisor G.D. Mishra advised the Range Officers of BISCOMAUN to get the samples sent to the laboratory of Rajendra Agriculture University at Pusa for additional check of the quality of the fertiliser supplied by the firm. Though there was no statutory and contractual obligation yet in the mean time the Advisor G.D. Mishra advised the Range Officers of BISCOMAUN to get the samples sent to the laboratory of Rajendra Agriculture University at Pusa for additional check of the quality of the fertiliser supplied by the firm. This letter was sent to Director of Laboratory at Rajendra Agriculture University, Pusa, and also to District Agriculture Officers. Though the Managing Director was not directly involved in the matter of having the fertiliser tested, yet he adopted the modality of having the samples collected from the depots and tested in the Rajendra Agriculture University, Pusa. This very University being a standard University was earlier also approached by the informant R.K. Singh while he was District Magistrate, Patna, for getting the samples of Gram, Masur and Matar tested. Prof. Dr. J. Singh, Head of the technical department of the said University had tested the same which appears from the letter No.5 (GO) dated 182.85 (Annexure-17) addressed to Sheo Kumar Srivastava, Agriculture Production Commissioner, Patna. BISCOMAUN got the samples tested from the said University although it was not under any statutory obligation to have the fertiliser supplied by the firm to be tested. 11. The firm had supplied in all 2916 M.T. of NPK 15:15:7½ at the rate of Rs. 2,509/- per M. T., the total price thereof being 73,16,244/-. Out of this about 18,900 M.T. conveniently for calculation 19 M.T. was reported to be less in weight for which 47,671/-was deducted. Though the total payments to be made were about Rs. 65,53,643.12 paise, but out of it 53.97 lacs had been paid which was nearly about 20% less of the price of the bill, whereas as per the terms of the contract only 10% of the bill could be held up till the test report from a recognized State/Central Laboratory was received and further that the balance 90% had to be paid within 10 days of the receipt of the consignment in each depot duly certified by the concerned Depot Managers. The cheques for the payment were signed not by P.P. Sharma, Managing Director, but the authorised officers. The first sanction was for Rs. 23.02 lacs only on 17.12.86 when the firm started making supply of fertiliser from November 1986 itself. Some of these facts are also mentioned in para 79 of the case diary and the First Information Report. The cheques for the payment were signed not by P.P. Sharma, Managing Director, but the authorised officers. The first sanction was for Rs. 23.02 lacs only on 17.12.86 when the firm started making supply of fertiliser from November 1986 itself. Some of these facts are also mentioned in para 79 of the case diary and the First Information Report. 12. As a result of the measure supply of the Suraj brand fertiliser and on account of its not being popular among the farmers of the State of Bihar, in comparison to the already popular Suphla brand and also on account of the failure of the firm to mount an aggressive development campaign for the marketing of the Suraj brand, which was one of the conditions of the original contract, the unsold stock of the Suraj brand supplied to the firm was lying in the godowns of the BISCOMAUN. It started deteriorating also due to exposure to the vagaries of nature. Therefore, to liquidate these stock the Board of Directors of BISCOMAUN at its meeting on 23.3.87 decided that the old stock should be used for making Harbahar in the own factories of BISCOMAUN at Tilrath and Jasidih. The proposal and approval are Annexures 18 and 19. This approval was communicated to all concerned vide memo No. 268 dated 25.4.87 by the Secretary, BISCOMAUN. The Executive Committee of the Board of Directors also decided and approved on 21.5.87 the proposal to liquidate the stock of fertiliser at the end of Rabi 1986-87 by such stock as raw material for the Harbahar NPK 18:18:6 in the said two factories of BISCOMAUN the agenda and resolution thereof being Annexures 20 and 20/1). The total of the eleven varieties of fertitisers amounting to 15793 M.T. were detailed in the meeting of the Board of Directors. In the proposal at serial No. 17 was Suraj Brand NPK 15:15:7½ to the extent of 2572 M.T. The Board of Directors also in its meeting on 8.6.77 confirmed this decision of reprocessing (proposal no. 15 and decision of the said date being Annexures 21 and 21/1). To implement this decision of the Board of Directors taken on 23.3.87, the Project Manager BISCOFERT was asked to make a technical feasibility for the use of the various non-saleable fertilisers in BISCOMAUN and submit report. 15 and decision of the said date being Annexures 21 and 21/1). To implement this decision of the Board of Directors taken on 23.3.87, the Project Manager BISCOFERT was asked to make a technical feasibility for the use of the various non-saleable fertilisers in BISCOMAUN and submit report. The Project Manager then submitted the feasibility report dated 15.5.87 (Annexure-25) addressed to the Advisor (G.D. Mishra) in which he said that after discussing the price modality and the fact that the firm had assured the responsibility for transporting the said NPK 15:15:7½ lying in various godowns and factories of BISCOMAUN and to meet the cost of the deficient nutrient and processing, of tile NPK 15:15:7½ supplied by the firm is used for making Harbahar, then it will give a margin of Rs. 764/- per M.T. over the sale value and so processing Harbahar from Gromor and 15:15:7½ according to the new formula will be economically viable and the same may be considered in view of the financial constraints and to reduce the blocked inventory. It will appear from Annexure-26 that the firm itself, while admitting its inadequacy in launching an intensive promotional campaign to push forward the sale of its own product among the farmers of Bihar, had agreed to bear the entire cost of reprocessing, the cost of transporting and the cost of nutrient deficiency, if any. It was after these that from July 1987 the movement of fertilisers from the various depots of the BISCOMAUN started to its factories at Jasidih and Tilrath which will appear from Annexure-39 P. P. Sharma, Managing Director left BISCOMAUN on 14.6.87 therefore, the use of these fertilisers in the two factories of BISCOMAUN started from September 1987. This proceeding was not only for Suraj Brand of the firm but also several other brands of different firms. 13. It was on 18.5.87 that the Depot Manager, Arwal, informed the Advisor that the report received from the State laboratory, Mithapur, showed fertiliser supplied to Arwal depot as non-standard. This was the only report during the tenure of P. P. Sharma from 27.5.86 to 14.6.87, as from 15.6.87 Shri Sanjay Srivastava had assumed independent charge as the Managing Director. 13. It was on 18.5.87 that the Depot Manager, Arwal, informed the Advisor that the report received from the State laboratory, Mithapur, showed fertiliser supplied to Arwal depot as non-standard. This was the only report during the tenure of P. P. Sharma from 27.5.86 to 14.6.87, as from 15.6.87 Shri Sanjay Srivastava had assumed independent charge as the Managing Director. It was after P.P. Sharma who left BISCOMAUN, that the depot Manager, Sakra, received report of testing of fertiliser from Sub-divisional Agriculture Officer, who was fertiliser inspector under the Act to the effect that on testing at the Faridabad laboratory through the Deputy Director Quality Control, Mithapur, the fertiliser was found to be sub-standard. 11 samples were drawn by the fertiliser inspectors from the different depots of BISCOMAUN and were sent for testing to the State Laboratory at Mithapur, which in turn got them tested at the Central laboratory at Faridabad. These samples included the fertilisers from various firms and factories and also Harbahar of BISCOMAUN. Out of 11 samples of the firm, 3, were found of standard while 8 as non-standard; out of 14 samples of Harbahar, 2 were of standard while 12 were non-standard. Out of 10 samples of IFFCO, 7 were of standard, while 3 non-standard. Out of 10 samples of Rashtriya Chemical Fertilisers, 2 were of standard, while 8 were non-standard. Upon these reports the Advisor asked the firm by his letter dated 13.10.87 (Annexure 24) to take back the Suraj brand 15:15:7½ from the 8 depots of the BISCOMAUN as detailed in the letter at their own costs. Thereafter the firm on 19.12.87 took back the entire supply of 11.23 M.T. from the Arwal depot. The Director of Agriculture thereafter asked for show cause (vide Annexure-39) from the 8 depots from where supply were taken. These depots had taken time to show cause, which appears from the statement of Dr. D.N. Ram, the Director of Agriculture, given to the police during investigation. It also appears from the investigation that even after getting these reports about non-standard and after lodging FIR on 1.9.88 the informant as Administrator of BISCOMAUN, sent the balance stock of the fertilisers in September 1988, October 1988 and November 1988 and also report about the sale of these fertilisers. 14. It also appears from the investigation that even after getting these reports about non-standard and after lodging FIR on 1.9.88 the informant as Administrator of BISCOMAUN, sent the balance stock of the fertilisers in September 1988, October 1988 and November 1988 and also report about the sale of these fertilisers. 14. An affidavit on behalf of the informant has been filed on 8.2.90 through Sri P.K. Sahi, Advocate for the informant, sworn by Girja Nandan Sharma, Addl. Superintendent of Police posted in Vigilance Department Co-operative Cell, Patna, (Investigating Officer in this Gandhi Maidan P. S. Case No. 970 of 1988) to the effect that during the course of investigation the I.O. has seized various documents pertaining to the case on 8.9.88 and one of the seized files bears the heading "proposal for reprocessing submitted by ex-dealer". In this file G.D. Mishra the Advisor had put up a note (Annexure-A) on 17.7.88 endorsed to S. K. Sinha, Advocate. It stated inter alia as follows : "It was assessed that against the outstanding of Rs. 17,89,930 the processing would be possible but on various counts the accounts section had reduced their dues to Rs. 1108364.19 paise. It will be further reduced as according to the value of the fertiliser found substandard at Arwal, Minapur, Satra, Dholi, Benibagh, Bochaha, Gangia, Bihta, Bakhtiarpur and Karbigahiya to be taken back. The company has taken back from Arwal Bihta, Karhigahia and Bakhtiarpur. About other places though the company has expressed difficulty but the entire stock and its value and his liability as per terms of purchase. The report of E.D. shown that re-processing cost with incidental charges would be 1370186=00 paise. Therefore, as per terms agreed to meet the cost of re-processing the excess expenditure incurred will be recoverable from the company. The excess against liability will be as follows: 1. Dues (after deducting shortage) calculated by Accountant. Rs. 1108364=00. 2. Value of the return Rs. 3000000=00 / 803364 3. Value of re-processing Rs. 137018 =00 4. After deducting dues approximate claim Rs. 561816=00 These may be examined if (......also is …. , as the Value of process material .............. will now be Rs. 60 lakhs against 53 lakhs and odd paid to the company. Signed illegible" 17.7. Rs. 1108364=00. 2. Value of the return Rs. 3000000=00 / 803364 3. Value of re-processing Rs. 137018 =00 4. After deducting dues approximate claim Rs. 561816=00 These may be examined if (......also is …. , as the Value of process material .............. will now be Rs. 60 lakhs against 53 lakhs and odd paid to the company. Signed illegible" 17.7. Upon this Sri S. K. Sinha advocate submitted his opinion dated 21.7.88 to the Advisor that as per discussion with him on 18.7.88 he suggested that BISCOMAUN may file a money suit against the firm for recovery of loss which may be calculated by office. In his opinion suit may be filed for recovery of loss and cost of reprocessing and also the value of stock taken back or to be taken back as per terms of purchase order. After this opinion again the Advisor put up a note that the opinion of Sri S. K. Sinha may be seen and the order for recovery of the amount may be done after checking and calculation. However, it does not appear from any material brought in this court that any suit has been filed by the Advisor or the present Administrator. 15. On 29-7-88 R.K. Singh joined as Managing Director at about 8.30 P.M. and on 30-7-88 BISCOMAUN was superseded by the order of the State Govt. and on the same day he assumed charge as Administrator of the superseded BISCOMAUN. On 2-8-88 he returned the services of six State Govt. officers working in the BISCOMAUN to their parent departments. On 3-8-88 G.D. Mishra resigned even though his terms of contract was to continue up to 31-1-89. On 9-8-88 he reported to the Registrar, Cooperative Societies, to initiate surcharge proceedings against P.P. Sharma for official actions taken in November-December 1986 but the Registrar, Co-operative Societies, refused to do so as no legal surcharge proceedings could be started on the report by R.K. Singh. 16. On 1-9-88 R.K. Singh, Administrator filed the said Kotwali (Gandhi Maidan) P.S. Case No. 970 of 1988 against P.P. Sharma, G.D. Mishra and others. The allegations were that the BISCOMAUN, an institution in cooperative sector, has its main business to purchase fertilisers and to sell it through its depots to the farmers of the State. 16. On 1-9-88 R.K. Singh, Administrator filed the said Kotwali (Gandhi Maidan) P.S. Case No. 970 of 1988 against P.P. Sharma, G.D. Mishra and others. The allegations were that the BISCOMAUN, an institution in cooperative sector, has its main business to purchase fertilisers and to sell it through its depots to the farmers of the State. During the course of checking of the fertilisers lying in the said factories it was detected that huge quantity of unsold Suraj brand NPK mixture fertiliser was lying in the various depots of BISCOMAUN and the raw material in the said factories, it was detected that huge quantity of unsold Suraj brand NPK mixture fertiliser was lying in the depots of BISCOMAUN which was being sent to the said factories of BISCOMAUN for manufacture of Harbahar fertiliser. Looking to the records it appeared that the Suraj brand NPK was purchased from a private firm and the entire transaction of purchase of the Suraj brand NPK from the said firm and its utilisation in the manufacture of Harbahar was fraudulent and was a conspiracy for the wrongful gain to the firm and the earlier Chairman Tapeshwar Singh and also wrongful loss to the BISCOMAUN and the farmers of Bihar. Further it appeared that the firm had written a letter for the favour of supply to the BISCOMAUN the Suraj brand NPK 15:15:7½ mixture fertiliser at the rate of 2550/- per M.T. plus taxes. When this letter was received directly, and not through office, by the erstwhile Chairman Tapeshwar Singh, he endorsed the letter to the M.D. The petitioner (G.D. Mishra) on his own level and without its examination in the office in normal course put up a proposal for the purchase of the said fertiliser from the firm making a note that the question of purchase has been discussed between him and the Chairman and the Director. This proposal by tke Advisor was endorsed by the M.D. (Mr. Sharma) for approval of the Chairman which was accordingly done. All this was done without any advertisement by BISCOMAUN without inviting tenders or without ascertaining the competitive prices of similar types of fertiliser. It was all done in haste and the proposal was accepted on 20-11-85. The Advisor by his letter dated 22-11-86 placed orders to the firm for the supply of 2500 M.T. of fertilisers. Further there was no E.C. Act allocation. It was all done in haste and the proposal was accepted on 20-11-85. The Advisor by his letter dated 22-11-86 placed orders to the firm for the supply of 2500 M.T. of fertilisers. Further there was no E.C. Act allocation. Later on the Advisor placed orders for another 416 M.T. of fertilisers. One of the conditions of purchase was that the fertiliser will contain nutrient value of 15:15:7-1/2 mixture and if it was found to be deficient in nutrient value to the said ratio, the consignment would be rejected. It was also one of the conditions that the chemical examination was to be done either in the laboratory approved by the State/Central Govt. Contrary to this condition the chemical examination was done by Dr. S.N. Jha Associate professor of Soil Science, Rajendra Agriculture University, Bihar. The samples were collected and sent to said expert not by the fertiliser inspector as provided under the Fertiliser Control Order, 1957. Dr. Jha, however, reported that the samples were of the proper grades and standard and contained nutrient in the preparation of 15:15:7-1/2. The said fertiliser was distributed to various depots of the BISCOMAUN. When the samples were taken from the various depots of the BISCOMAUN by the fertiliser inspectors and sent to the authorised laboratory for examination it was found that the fertilisers were spurious and of sub-standard quality and lacking in nutrient value. These samples were taken from BISCOMAUN depots of........., Gangia, Bochaha, Dholi, Satra, Minapur (all from Mazaffarpur) Karbigahia (Patna) and Arwal (Jehanabad). According to the terms of the purchase these spurious fertilisers ought to have been taken back by the firm at its own costs, but instead of entire lot being returned, he Advisor with the intention to cause wrongful gain to the supplier and wrongful loss to the BISCOMAUN and farmers allowed the sale of the sub-standard fertilisers to the farmers. Further in hot haste the firm was paid Rs.23.02 lacs vide sanction dated 11-12-86 and the payment was released in spite of the fact that the fertilisers were not in granulated form and bags were non-standard. Ever further proposal for payment up to December-January 1986-87 was objected to by the accountant, yet the Advisor overruling the said objection ordered for further payment of not only Rs. 13.07 lacs but also 2 bills of Rs. 12.03 lacs and 5.83 lacs. Thus the firm was paid Rs. Ever further proposal for payment up to December-January 1986-87 was objected to by the accountant, yet the Advisor overruling the said objection ordered for further payment of not only Rs. 13.07 lacs but also 2 bills of Rs. 12.03 lacs and 5.83 lacs. Thus the firm was paid Rs. 23.02 lacs and 13.44 lacs in January 1987 itself. Out of the total bills (after deducting shortage) of Rs. 65,53.642.11 paise a sum of Rs. 53,97,277.32 was paid to the firm. Besides the reports from the other depots were coming that the fertilisers were sub-standard and that reports of the chemical analysis were also to the same effect, yet instead of returning the entire fertiliser and refund of the amount, the management ordered for the re-processing of the old stock in the said two factories at Tilrath & Jasidih and ordered for their use for the manufacture of Harbahar. This proposal was approved by the Board in March 1987. Not only the old stock was reprocessed but the new too was done. On the decision of the executive committee the stock of Suraj brand was transferred to the two factories for re-processing into Harbahar. Out of 2,900 M.T., 2,500 M.T. remained unsold by June 1987 and the stock was proved to be spurious and sub-standard. So it was all on the basis of conspiracy causing loss to the BISCOMAUN to the tune of Rs.53,97,277.32 paise. It was also violation of the provisions of the Fertiliser Control Order, 1957 as the spurious sub-standard fertilisers had been supplied. 17. On the basis of this FIR the investigation was taken up by Girja Nandan Sharma, Deputy Superintendent of Police, Cooperative Cell, who submitted two charge-sheets, No. 102/88 u/s. 7 of the E. C. Act and No. 103/88 under various sections of the Indian Penal Code against which these writ petitions have been filed. Learned Special Judge on the question of cognizance heard the parties for a number of days and thereafter order was reserved. Tapeshwar Singh, Chairman of the BISCOMAUN and one of the accused in this case, filed the Criminal Misc. No. 1533 of 1989 for the transfer of the case from the court of the then Special Judge, R.D. Rai, to any other court. On this application this court called for a report and in the meanwhile proceedings in the court below were stayed. As mentioned earlier. No. 1533 of 1989 for the transfer of the case from the court of the then Special Judge, R.D. Rai, to any other court. On this application this court called for a report and in the meanwhile proceedings in the court below were stayed. As mentioned earlier. Cr.W.J.C. 289 of 1988 was filed by Tapeshwar Singh and these two petitioners for quashing the investigation which was later on withdrawn by the petitioners in view of these two Cr.W.J.C. Nos. 90 of 1989 and 228 of 1989. 18. Learned counsel for the petitioners have challenged the FIR and the investigation on various grounds namely that the prosecution of the petitioners is bad in law and facts inasmuch as the material facts have not been brought on record, rather they have been suppressed, that the lodging of the FIR is malafide on the part of the informant, that the investigation was on the basis of deliberate suppression of facts, so the investigation is not only biased but mala fide and also it is an abuse of the process of law and court. It was also contended that the sanction for prosecution in regard to petitioner Sharma is not based on the material on the record and that has been obtained mechanically and not in accordance with the provisions of law. Even the permission of the State Govt. was not obtained before lodging the FIR as required under the notification, that there is no violation of the provisions of the E.C. Act by any of the petitioners, that the two charge-sheets have been submitted in two different courts on frivolous grounds to cause harassment to the petitioners, that the charges that have been levelled against the petitioners are not at all made out from the material on the record and as such they are liable to be quashed. On the other hand on behalf of the State it had been contended by the learned Govt. Advocate Mr. J.N.P. Sinha (since deceased) that these petitions are not maintainable as the questions of facts at this stage cannot be looked into but can be thrashed out at the stage of trial when the material will be brought on the record and witnesses will be examined and cross-examined. Advocate Mr. J.N.P. Sinha (since deceased) that these petitions are not maintainable as the questions of facts at this stage cannot be looked into but can be thrashed out at the stage of trial when the material will be brought on the record and witnesses will be examined and cross-examined. Even at the time of taking cognizance the court can (sic) consider the materials collected by the investigating agency and it will be for the court to look into the matter and if no case for cognizance is made out, then the court will refuse to take cognizance and even if the cognizance is taken these matters can be looked into at the time of framing of the charge and if the charges cannot be framed, they will be discharged. So according to him these petitions are not maintainable. On behalf of the informant Mr. R.B. Mahto has contended that from the material on the record it appears that the tenders have not been invited and the unregistered firm has been given the contract without any proposal being invited by the BISCOMAUN and there was no examination of the matter on the level lower than the petitioners, that the prices settled at Rs. 2509/- per M.T. was much more than Rs.2000/- per M.T., being retail price in the market (vide case diary in paragraphs 14, 79 & 98). Petitioner Sharma in his report dated 2.9.88 (Annexure-1) has admitted that there was glut in the market and the price of fertiliser was at Rs. 96/- per bag and he was trying to negotiate the price at Rs. 90/- per bag. The material supplied by the firm should have been returned to the firm but non-standard and dust fertilisers have been allowed to come to the depots of the BISCOMAUN and when they were found to be non-standard they were not returned, rather they were utilised by the petitioners for reprocessing of the same so that material exhibit may not be available if anybody challenged the quantity of the goods. Further it was said that looking to paragraph nos. Further it was said that looking to paragraph nos. 16, 17, 19, 20, 21, 27 & 36 of the case diary and the Statements of the witnesses recorded during investigation it appears that there was undue haste in payments, although the accounts Department had raised objections against the payment without report, and also the file was not sent to the Financial Controller for his comment. The Advisor himself called for the file and started dealing with the payments and obtained orders of payment on the file from the Managing Director. Thus the proposal for payment was mooted by the Advisor and approved by the Managing Director. On 18.12.86 and 22.1.87 the payments of Rs. 23,00,00,0/- and Rs. 30,00000/- were made to the firm although dues of other firms were pending for over a year. Further funds were not available, yet funds were diverted from other heads for these payments. This all shows motive of the accused to achieve the desired purpose to ensure payments to the firm. Thus further according to the learned counsel, there was a conspiracy among the petitioners and others of the BISCOMAUN to cause loss to the BISCOMAUN and farmers and gain to the firm. It has also been said that the State Government laboratory was functioning as the relevant time but inspite of that samples had been sent to Rajendra Agriculture University and further it has come to light that no sample was tested at the Rajendra Agriculture University and the alleged report was forged and fabricated document which is made out from the statements of Associate Professor Sri S. N. Jha and others. On the basis of these forged and fabricated test report orders for payment were made at the instance of petitioner G.D. Mishra examination and recommendation for payment being approved by P. P. Sharma and so a sum of Rs. 53,00,000/- has been paid between 18.12.86 to 20.1.87. Thus serious irregularities have been committed in the purchase of fertiliser, payment and conversion of the said brand of fertiliser which has caused huge loss to the BISCOMAUN and farmers of the State of Bihar. 53,00,000/- has been paid between 18.12.86 to 20.1.87. Thus serious irregularities have been committed in the purchase of fertiliser, payment and conversion of the said brand of fertiliser which has caused huge loss to the BISCOMAUN and farmers of the State of Bihar. On the basis of the material on the record, the learned counsel has divided this case into four parts- (i) the circumstances which ripened to place the supply order and the order of supply was actually made (ii) reports of complaint with regard to supply of substandard fertiliser received, manner in which the fertiliser was alleged to have been tested in the Rajendra Agriculture University and forged and fabricated analyst report was obtained in order to enable the payment to the supplier, (iii) the manner in which the payment was made to the supplier although no fund was available by diverting the funds of other heads and (iv) diversion of the said substandard fertiliser supplied which in fact resulted in loss to society and thereby to make the material exhibit disappear. Now we shall consider these contentions of the learned counsel of both sides and refer to the materials on the record. 19. Before appreciating, the various contentions of the parties, first it is to be seen as to whether these petitions are maintainable and whether the court can exercise power under Article 226 of the Constitution for quashing the FIR, investigation and the charge sheets which have been submitted to the court specially when the cognizance has not been taken as yet. In the case of Emperor v. Khwaja Nazir Ahmad (AIR 1945 P.C. 18) it has been observed at page 22 : "Just as it is essential that everyone accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S. 491, Criminal P.C., to give directions in the nature of habeas corpus." In the case of R.P. Kapoor v. State of Punjab ( AIR 1960 SC 866 ) it has been observed at page 869 in para 6 : "It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code; and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In. cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation mayor may not support the accusation in question. In exercising its jurisdiction under S. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. That is the function of the trial magistrate and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide: In Re : Shripad Chandavarkar, AIR 1928 Bom. 184, Jagat Chandra Mozumdar v. Queen Empress, ILR 26 Cal. 786, Dr. Shankar Singh v. State of Punjab, 56 Pun. LR 54: (AIR 1954 Punj. 193), Nripendra Bhusan Roy v. Gobinda Bandhu Majumdar, AIR 1924 Cal. 1018 and Ramanathan Chettiyar v. Sivarama Subramania, ILR 47 Mad. 722 : (AIR 1925 Mad. 39)." In the case of State of West Bengal v. S.N. Basak ( AIR 1963 SC 447 ) where after the FIR was recorded, and the investigation had started and there was no case pending at the time excepting that the respondent had appeared before the court and had surrendered and had been admitted to bail, their Lordships observed while referring to the powers of the judiciary in regard to the statutory right of the police to investigate as observed in the case of Khwaja Nazir Ahmad (supra) that they were in accord with the interpretation put on the statutory duties and powers of the police and powers of the court and so the High Court was in error in interfering with the powers of the police in investigating into the offence which was alleged in the information sent to the officer-in-charge of the police station. In the case of S.N. Sharma v. Bipin Kumar Tiwary ( AIR 1970 SC 786 ) the Supreme Court considered an application under Article 226 of the Constitution of India and observed at page 788 in para 5: "The scheme of these sections. thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate." Similarly in the case of Hazari Lal Gupta v. Rameshwar Prasad ( AIR 1972 SC 484 ) the Supreme Court observed that the interference of the investigation under Cr. P. C. by the High Court would be impeding the investigation and jurisdiction of the statutory authorities to exercise power in accordance with the provisions of the Cr. P. C. In the case of Jahan Singh v. Delhi Admn. ( AIR 1974 SC 1146 ) it was said that prima facie the allegations in the FIR if taken as correct did not disclose the commission of the cognizable offence but may be that further evidence may be collected by the police during investigation which could confirm or falsify the allegations made in the FIR. In the case of Kurushetra University v. State of Haryana ( AIR 1977 SC 2229 ) the Supreme Court dealing with the case for quashing the FIR, has said that even if the police has not commenced investigation and no proceeding at all was pending in any court pursuant to the FIR observed that this inherent power cannot be exercised according to whim or caprice and that the statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. 20. In the case of State of Bihar v. J.A.C. Saldana ( AIR 1980 SC 326 ) again the Supreme Court observed that the adjudicatory function of the court begins after the investigation comes to an end subject to the provision contained u/s 173 (2) of the Code and unless extra-ordinary case of gross abuse of power is made out by those in-charge of investigation the court will be quite loath to interfere at the stage of investigation, a field of activity reserved for police and executive and that the High Court in the exercise of its extraordinary jurisdiction committed an error by making observations on seriously disputed questions of fact taking its cue from the affidavits which would hardly provide any reliable material, and that it was virtually amounting to mandamus to close the case before the investigation is completed. In the case of State of West Bengal v. Swapan Kumar Guha ( AIR 1982 SC 949 ) it was observed "It was wrong to suppose that the police had an unfettered discretion to commence investigation. Their right of enquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence. If this condition is satisfied the investigation must go on and the court has no power to stop it otherwise it will be to trench upon the lawful power of the police to investigate. But if the materials do not disclose an offence, no investigation should normally be permitted as it will result to unnecessary harassment to a party whose liberty and property may be put to jeopardy for nothing. If the court interferes with the proper investigation where an offence has been disclosed then the offender will go unpunished to the serious detriment of the welfare of the society and cause of justice will suffer. The court take into consideration the complaint or FIR and the court may in appropriate cases may take into consideration, the relevant facts and circumstances of the case and on consideration of all the relevant materials the court has to come to the conclusion whether an offence is disclosed or not and if the court is satisfied about the disclosure of the offence then it will not interfere and will allow the investigation to be completed. But if no offence is disclosed on the consideration of relevant materials then it is the duty of the court to stop the same to prevent any uncalled for and unnecessary harassment. 21. In the case of State of West Bengal v. Sampat Lal ( AIR 1985 SC 195 ) it was observed that the court can give direction if requirement, of law are not completed and investigation is not being conducted properly or with due haste and promptitude. In Eastern Sprinngs Mills Sri Virendra Kumar Sharda v. Sri Raji Poddar ( AIR 1985 SC 1668 ) it has been observed that save in exceptional cases where non-interference would result in miscarriage of justice, the court and the judicial process should not interfere at the stage of investigation. In Eastern Sprinngs Mills Sri Virendra Kumar Sharda v. Sri Raji Poddar ( AIR 1985 SC 1668 ) it has been observed that save in exceptional cases where non-interference would result in miscarriage of justice, the court and the judicial process should not interfere at the stage of investigation. In the case of Pratibha Rani v. Suraj Kumar (AIR 1985 SC 682) it has been said that the High Court will have to proceed entirely on the basis of the allegations in the complaint or the documents accompanying the same per se and that it has no jurisdiction to examine the correctness or otherwise of the allegations. In the case of J.P. Sharma v. Binod Kumar ( AIR 1986 SC 833 ) again the Supreme Court said that at this stage the court is not to consider as to whether there was any truth in the allegations made but it has to see on the basis of the allegations that a cognizable offence as alleged has been committed and that the subsequent facts to prove the truth or otherwise of the allegations is no ground to quash the complaint. In the case of Madho Rao Jiwaji Rao Scindia v. Sambhaji Rao Chandroji Rao Angre ( AIR 1988 SC 709 ) it was said that at this initial stage the court is to see whether uncontroverted allegations establish a prima facie case. Further the court is also to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of ultimate conviction are bleak and therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue; the court may while taking into consideration the special facts of a case quash the proceeding even though it may be at a preliminary stage. 22. In the case of State of Bihar v. Murad Ali Khan ( AIR 1989 SC 1 : 1989 PLJR 6 (SC) at page 5 para 6 it has been observed : "It is trite that jurisdiction under S. 482 Cr. 22. In the case of State of Bihar v. Murad Ali Khan ( AIR 1989 SC 1 : 1989 PLJR 6 (SC) at page 5 para 6 it has been observed : "It is trite that jurisdiction under S. 482 Cr. P. C., which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence, the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the court or not." In the case of State of V.P. through C.B.I., S.P.E. Lucknow and another v. R.K. Srivastava and another ( AIR 1989 SC 2222 ) it was observed at page 2224— "It is well settled principle of law that if the allegations made in the FIR are taken at their race value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such FIR should be quashed. In the case of State of Punjab v. Dharam Singh (1987 SCC (Cr.) 621 : 1987 Suppl. SCC 89), the Supreme Court has not sustained the order of the High Court which had gone far beyond the contents of the FIR and had entered into a discussion on the merits of the case before investigating agency had concluded investigation and collected evidence. In a very recent decision the Supreme Court has again expressed its opinion about the exercise of the power u/s 482 Cr.P.C. in the case of Mrs. In a very recent decision the Supreme Court has again expressed its opinion about the exercise of the power u/s 482 Cr.P.C. in the case of Mrs. Dhanlakshmi v. R. Prasanna Kumar and others ( AIR 1990 SC 494 ) and observed in paras 3 & 4 : "Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of court. In proceedings instituted on complaint, exercise of the inherent power to quash the proceedings is ca lied for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court". "The High Court without proper application of the principles that have been laid down by this Court in Sharda Prasad Sinha v. State of Bihar, (1977 1977 PLJR 242) 2 SCR 357 : ( AIR 1977 SC 1754 ). Trilok Singh v. Satya Deo Tripathi, 1980 Cr.L.J. 822: AIR 1979 SC 850 and Municipal Corpn. of Delhi v. Purshotam Dass Jhunjhunwala (1983) 1 SCR 895 : ( AIR 1983 SC 158 ) proceeded to analyse the case of the complainant in the light of all the probabilities. In order to determine whether a conviction would be sustainable and on such premises arrived at a conclusion that the proceedings are to be quashed against all the respondents. The High Court was clearly in error in assessing the material before it and concluding that the complaint cannot be proceeded with. In order to determine whether a conviction would be sustainable and on such premises arrived at a conclusion that the proceedings are to be quashed against all the respondents. The High Court was clearly in error in assessing the material before it and concluding that the complaint cannot be proceeded with. We find there are specific allegations in the complaint disclosing the ingredients of the offence taken cognizance of. It is for the complainant to substantiate the allegations by evidence at a later stage. In the absence of circumstances to hold prima facie that the complaint is frivolous when the complaint does disclose the commission of an offence there is no justification for the High Court to interfere." A Full Bench of 7 Judges of Allahabad High Court in the case of Ram Lal v. State of U.P. (1989 Cr.L.J. 1013) has observed in para 22- "The High Court has no inherent power under S. 482 Cr.P.C. to interfere with the arrest of a person by a police officer even in violation of S.41 (1) (a) Cr.P.C. either when no offence is disclosed in the first information report or when the investigation is mala fide as the inherent powers of the court to prevent the abuse of the process of the court or to otherwise secure the ends of justice come into play after the charge-sheet has been filed in court and not during investigation which may even be illegal and unauthorised." Thus it is clear that the police has got a prerogative and exclusive jurisdiction to investigate the case when an FIR is lodged and a cognizable offence is disclosed, without requiring sanction of the court as they are police matters which are within their province and the law imposes duty upon them to make inquiry. Neither the law provides for the interference nor the court interferes in the exercise of the statutory duties of the police. The functions of the police and judiciary are complementary and not overlapping. Though it cannot be denied that this exercise of power by the police is unfettered, unhindered and arbitrary but it is subject to judicial control. Neither the law provides for the interference nor the court interferes in the exercise of the statutory duties of the police. The functions of the police and judiciary are complementary and not overlapping. Though it cannot be denied that this exercise of power by the police is unfettered, unhindered and arbitrary but it is subject to judicial control. At the appropriate stage the courts used to give direction in appropriate cases in the nature of habeas corpus when moved under the provisions of the Cr.P.C. The scheme under the Cr.P.C. makes a provision about the investigation of the cognizable offence and thereafter interference of the court when after inquiry and investigation the police brings the result of the investigation for or against an accused. Sometimes it happens that police on the basis of FIR in exercise of its statutory duties starts Investigation but that FIR and investigation suffers from some infirmities and illegalities, such as no case being made out on the reading of the FIR itself, lack of sanction for prosecution, person accused is not at all named or the investigation is done by the police in an arbitrary, illegal, biased manner or is a gross abuse of power. The court will not be loath to interfere with such investigation. The court will definitely not interfere with the investigation to find out as to whether the evidence collected or being collected will result in the conviction of the accused. 23. A question arises as to whether investigation is a process of court wherein the High Court may exercise its power to prevent the abuse of the process of court. Definitely investigation is the sole prerogative of the police and executive and the moment FIR is lodged the police starts investigation without any permission or order of the court. And so collects the evidence. The court is to exercise its control and power over the collected matter only after the report for or against accused is submitted. The abuse of the process of the court will start when on the material an order u/s 190 Cr. P. C. is passed by the court. Yet the court is not powerless before it and it can exercise its jurisdiction to prevent the abuse of the process of law and the statutory duties in suitable manner in the interest of justice under the provisions of Article 226 of the Constitution of India. P. C. is passed by the court. Yet the court is not powerless before it and it can exercise its jurisdiction to prevent the abuse of the process of law and the statutory duties in suitable manner in the interest of justice under the provisions of Article 226 of the Constitution of India. In the case of S.N. Sharma v. Bipin Kumar Tiwary (supra) their Lordships have been pleased to observe at page 789 in para 7 : "It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Art. 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code." In the case of State of West Bengal v. Swapan Kumar Guha ( AIR 1982 SC 949 ) their Lordships of the Supreme Court after referring to the decisions in the case of Khwaza Nazir Ahmad (supra), R.P. Kapur (supra), Jahan Singh (supra), and S.N. Sharma (supra) has observed that if an offence is disclosed the High Court under Art. 226 of the Constitution will not normally interfere with the investigation of the case and will permit the same to be completed in the interest of justice, but if, however, no offence is disclosed then such investigation cannot be permitted to continue as it will result in unnecessary harassment to a party whose liberty and property may be put to jeopardy for nothing and the liberty and property of an individual are sacred, sacrosanct and the court zealously guards them. In the absence of a proper investigation where an offence is disclosed the offender may succeed in escaping from its consequences and he may go unpunished to the detriment of the cause of justice. In the absence of a proper investigation where an offence is disclosed the offender may succeed in escaping from its consequences and he may go unpunished to the detriment of the cause of justice. In the case of Bhagwant Singh v. Commissioner of Police, Delhi, (1983 SCC (Cr.) 637) = AIR 1983 SC 826 ) in which the police had submitted its report after investigation that it was not a case of bride burning but a case of suicide and the Govt. of India had decided to entrust the investigation to C.B.I., the Supreme Court said that these were matters to be considered in the trial, though it appeared that the investigation showed want of appreciation of the emergent need to get at the truth of the case and there was haphazard maintenance of the case diary. The Supreme Court did not interfere as the investigation was ordered to be done by the C.B.I. In the case of West Bengal v. Sampat Lal (1985 SCC (Cr.) 62= AIR 1985 SC 195 ) also the Calcutta High Court had treated a letter as the writ petition and had passed an order against which the Supreme Court has exercised its power under Art. 136 of the Constitution and has observed at page 81 in para 25: "It is sufficient to indicate that there is residuary jurisdiction left in the Court to give directions to the investigating agency when it is satisfied that the requirements of the law are not being complied with and investigation is not being conducted properly or with due haste and promptitude. The Court has to be alive to the fact that the scheme of the law is that the investigation has been entrusted to the police and it is ordinarily not subject to the normal supervisory power of the Court." 24. The Full Bench of 7 Judges of Allahaabad High Court in the case of Ram Kripal v. State of U. P. (supra) (1989 Cr. L. J. 1013) has considered this aspect of the matter. The Full Bench of 7 Judges of Allahaabad High Court in the case of Ram Kripal v. State of U. P. (supra) (1989 Cr. L. J. 1013) has considered this aspect of the matter. After referring to the decisions in Emperor v. Nazir Ahmad, State of West Bengal v. S. N. Basak, S. N. Sharma v. Bipin Kumar Tiwary, Hazarilal Gupta v. Rameshwar Prasad, Jahan Singh v. Delhi Admn., Kurushetra University v. State of Haryana, State of Bihar v. J. A. C. Saldana and State of West Bengal v. Sampat Lal which have already been referred to above the Full Bench observed : "It is thus settled law that the power of the police to investigate into a report which discloses of the commission of a cognizable offence is unfettered and cannot be interfered with by this court in the exercise of its inherent powers under section 482.... "(Para 7) Further referring to the observations in Emperor v. Nazir Ahmad (supra) again it observed: "It thus appears that the inherent powers of this Court to prevent the abuse of the process of the court or otherwise to secure the ends of justice come into play only after charge-sheet against an accused is filed in court and not till then even in cases where the police wrongly investigates into a report which does not disclose the commission of any offence"...(para 9). Again referring to the decision in State of West Bengal v. Swapan Kumar (supra) it observed: "Thus if the FIR does not disclose the commission of an offence the investigation on the basis of such a report is liable to be quashed under Art. 226 of Constitution and not in the exercise of the inherent powers of the High Court u/s 482 Cr.P.C. It may be mentioned that section 491 Cr.P.C. 1898 has been repealed by Code of the Criminal Procedure 1973" ......(para 10). Then quoting the observations in S. N. Sharma v. Bipin Kumar Tiwary (supra) it observed: ''It is thus clear that if the power of the investigation is exercised by a police officer mala fide the High Court cannot quash the investigation in the exercise of its inherent powers u/s. 482 but can do so under Art. 226 of the Constitution........(para 12). Then again referring to the observations in R. P. Kapur v. State of Punjab (supra) it said: "The aforesaid observations are obviously applicable to proceeding in court after the submission of a charge-sheet or a complaint but are not applicable to investigation before the submission of the charge-sheet in court when proceedings for collection of evidence are conducted by a police officer."..... (para 14). Again, referring to the decisions in Pratibha Rani v. Suraj Kumar ( AIR 1985 SC 628 ) it said; "we are, however, clearly of the opinion that the power of the High Court u/s 482 Cr.P.C. to quash the FIR or a complaint referred to above is with reference to a proceeding in court after the filing of a charge-sheet or a complaint and not to investigation prior to the filing of the charge-sheet in court"... ...(para 16). The seven Judges of Allahabad Full Bench found the three Judges Full Bench decision in the case of Binod Kumar v. State of Punjab (AIR 1982 Punjab & Haryana 372) to be in conflict with the decisions in (Emperor v. Nazir Ahmad (supra), State of West Bengal v. swapan Kumar (supra) and so while disapproving it observed: "The High Court had no inherent power u/s 482 to interfere with the investigation by the police" .…...(Para 19). The Allahabad Full Bench further went to the extent of observing (in para 24) that "The High Court has also no inherent power u/s 482 Cr. P. C. to stay the arrest of an accused during investigation." 25. Thus according to this view the writ petitions will be maintainable till the filing of the charge-sheet in Court and during the course of investigation the exercise of power u/s 482 is not permissible, and it is only after the charge-sheet has been submitted that the court may pass orders taking cognizance or not, and if the court passes any of such orders then the aggrieved party may approach the court of law to prevent the abuse of the process of the court u/s 482 Cr. P. C. or file any appeal or revision whichever may be provided by the Cr. P. C. It is only the question of stage when the powers will be exercised u/s 482 Cr. P. C. or Art. 226 of the Constitution. It may be kept in mind that the exercise of power u/s 452 Cr. P. C. or file any appeal or revision whichever may be provided by the Cr. P. C. It is only the question of stage when the powers will be exercised u/s 482 Cr. P. C. or Art. 226 of the Constitution. It may be kept in mind that the exercise of power u/s 452 Cr. P. C. or Art. 226 of the Constitution is to do justice. 26. The learned counsel for the State has urged that now the charge-sheets have been submitted to the courts concerned, where the petitioners could have raised all these matters and the courts below shall be allowed to decide these questions of fact and law and this Court should not interfere at this stage. As to this contention, it is to be seen that the adjudicatory function of the court starts after the submission of the charge-sheet. This aspect of the matter has been given out in detail in the case of Sheonandan Paswan v. State of Bihar ( AIR 1987 SC 877 at page 893-4 (para 20) : "When a First Information Report relating to: commission of a cognizable offence is lodged in a police station under section 154 or an order is made by a magistrate directing the police to investigate a non-cognizable case under section 155, the police is bound to investigate the offence alleged to have been committed. The powers of the police in regard to investigation and the procedure to be followed by them in such investigation are set out in sections 157 to 172. The section 173, sub-section (1) casts an obligation on the police to complete the investigation without unnecessary delay and sub-section (2). Section 173 then proceeds to state that as soon as the investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the prescribed form stating the various particulars mentioned in that sub-section. Section 190 confers power on the Magistrate to take cognizance of an offence.............. …We may concentrate our attention on Cl. (b) since the section read with the clause clearly goes to show that even in the matter of initiating a prosecution, the police has no unfettered discretion. Section 190 confers power on the Magistrate to take cognizance of an offence.............. …We may concentrate our attention on Cl. (b) since the section read with the clause clearly goes to show that even in the matter of initiating a prosecution, the police has no unfettered discretion. It is now well settled as a result of several decisions of this Court, of which we may mention only one, namely H.S. Bains v. State, AIR 1980 SC 1883 that even if the report submitted by the police to the Magistrate under S. 173 states that in the opinion of the police no offence appears to have been committed and no prosecution may therefore be initiated, the Magistrate can still form an opinion on the facts set out in the report that they constitute an offence and he can take cognizance of the offence and issue process against the accused. The Magistrate may also find, after considering the report, that the investigation is unsatisfactory or incomplete or there is scope for further investigation and in that event, the Magistrate may decline to accept the report and direct the police to make further investigation and then decide whether or not to take cognizance of the offence after considering the report submitted by the police as a result of such further investigation. It will thus be seen that the police has no absolute or unfettered discretion whether to prosecute an accused or not to prosecute him. In fact, in our Constitutional scheme, conferment of such absolute and uncanalised discretion would be violative of the equality clause of the Constitution. The Magistrate is therefore given the power to structure and control the discretion of the police. If the Magistrate finds from the report made by the police either on initial investigation or on further investigation directed by the Magistrate, that prima facie an offence appears to have been committed, the Magistrate is empowered to take cognizance of the offence notwithstanding the contrary opinion of the police and equally if the Magistrate forms an opinion that on the facts set out in the report no offence prima facie, appears to have been committed though the police might have come to a contrary conclusion, the Magistrate can decline to take cognizance of the offence. The discretion of the police to prosecute is thus 'cabined and confined' and subject to appeal or revision, and the Magistrate is made the final arbiter on this question. The Legislature has in its wisdom taken the view that it would be safer not to vest absolute discretion to prosecute in the police which is an Executive arm of the Government but to subject it to the control of the judicial organ of the State." 27. No doubt after the submission of the charge-sheet the magistrate takes notice of the offence in an executive capacity with a view to take step to see whether there is any basis for initiating judicial proceedings against the offenders. Then the judicial proceeding starts and cognizance of the offence is taken and then it is seen as to who is the offender and then process is issued to the offender. The presence of the accused along with the charge-sheet is not a must and so also the taking cognizance of an offence does not depend upon the presence of the accused. The court at the time of taking cognizance takes cognizance of the offence and not the offender. It is at this stage that the court decides as to who should be called upon to face the trial. The process of seeking the presence of an accused in a court is given out in section 204 Cr.P.C. by issue of summons of warrant as the case may be. The case proceeds after the attendance of the accused. So there is no question of the examination the accused before the taking of cognizance. The accused has not got even locus standi at the stage of taking cognizance. He comes into the picture after the cognizance is taken. If the accused may be allowed to appear before the cognizance order, then the cognizance proceedings will be a full dress trial of the case, which the Legislature in its wisdom has not allowed at this stage. If this would have been permitted, then the court would have become only a letter box, where any charge-sheet or even complaint would have to be filed and tried till the end of the case, where and only then it would have been found that the case was not even worth proceeding against as is was frivolous, vexatious, baseless and even prima facie the offence wall not made out. It is for this reason at the stage of taking cognizance u/s 190 of the Code of Criminal Procedure or even in the case of a complaint at stage of orders under sections 203 or 204 Cr.P.C. the court is required to see as to whether a prima facie is made out to proceed against the accused or not. The Magistrate at this stage is not to enter into a detailed discussion about the merits or demerits of the case. It has to see to consider only the in trin sic quality of the material collected during investigation or brought on record by the complaint. The court has to see the inherent probabilities of the case. It is not to weigh the material on the record in a golden scale to see as to whether it would end in conviction or acquittal. The standard or judging the materials which is meant at the final stage of case when the evidence is tested by cross-examination, is not applied at this initial stage when even the accused is not required to be present and he has no locus standi. It is for all these reasons, that protection against frivolous, vexatious; malicious, or baseless proceeding has been given to the accused. After a judicial order is passed, the Criminal Procedure Code has given out the measures to the accused to protect his right and interest by way of application under section 482 or a revision or appeal as the case may be. But before the order of taking cognizance is passed, if it appears that the charge-sheet or even a complaint, suffers from any fundamental legal defect, like absence of sanction for prosecution or complaint being from a person not permitted by law to maintain prosecution, or the charge-sheet being from a person who was not legally competent to investigate, or complaint/FIR or charge-sheet is malicious, biased and malafide or by way of abuse of process of law simply to cause harassment to the accused. Then the law and courts are not powerless to grant any relief and justice to the aggrieved. When such fundamental legal defects and disabilities stare in the eyes of the law or court, they do not remain a silent spectator to this drama of illegality and injustice. The inherent powers given to the courts under Art. 226 of the Constitution is permitted to be resorted to. When such fundamental legal defects and disabilities stare in the eyes of the law or court, they do not remain a silent spectator to this drama of illegality and injustice. The inherent powers given to the courts under Art. 226 of the Constitution is permitted to be resorted to. The court will definitely quash the FIR, complaint, charge-sheet under Art. 226 of the Constitution if it suffers from the vices and defects as enumerated above. If the Court has made a cognizance order with such defects, then it will be a denial of justice. If a person is asked to have a full dress trial with such fundamental legal defects then it will amount to legal and constitutional torture, which the law and Constitution have never tolerated. It is for this reason that these writ petitions can be said to be maintainable even without waiting for any order u/s 190 Cr.P.C. Here in these writ proceedings the disputed questions of facts will not be seen, but only the fundamental legal defects will be considered and nothing beyond that. Writ petitions are meant only for consideration on the basis of admitted and non-disputed facts of the malafide, bias, illegality abuse of the process of law, want of sanction, non-maintainability of prosecution or any such other legal disability, but definitely not for the disputed questions of fact which are meant to be dealt with by the trial court after taking evidence from both sides. 28. It was next contended by the learned counsel for the petitioners that there is not only bias but malafide on the part of the informant who within a week of taking over as Administrator of BISCOMAUN not only terminated the services of the petitioner G.D. Mishra but others also and thereafter he lodged the FIR as said above. As to this contention it is undisputed that on 29.7.88 at about 8.30 P.M. he joined as the M.D. and on 30.7.88 BISCOMAUN was superseded by the State of Bihar and on the same day he assumed charge as the Administrator of BISCOMAUN. On 2.8.88 he returned the services of six officers of the State Govt. working in BISCOMAUN to their parent departments. On 3.8.88 G.D. Mishra resigned even though his terms of contract was to continue up to 31.1.89. On 2.8.88 he returned the services of six officers of the State Govt. working in BISCOMAUN to their parent departments. On 3.8.88 G.D. Mishra resigned even though his terms of contract was to continue up to 31.1.89. On 9.8.88 the informant asked the Registrar, Cooperative Societies, to initiate surcharge proceedings against P.P. Sharma for official actions which proceedings were refused to be taken. It was on 1.9.88, that this FIR has been lodged. In the FIR also allegations have been made that the firm was not, a registered firm, that the firm wrote two letters to BISCOMAUN and they were directly dealt with by the petitioners and the Chairman without office notes, that no tenders were invited nor the comparative prices of similar types of fertilisers had been ascertained, that the payments had been made in hot haste that the fertiliser was deficient in nutrient value and was substandard, that the examination of samples was done at the Rajendra Agriculture University and that to cover up the irregularities and to do away with evidence the reprocessing of the fertiliser supplied by the firm it was done in the two factories of BISCOMAUN; all this being on the basis of a conspiracy for wrongful gain to the firm and wrongful loss to the BISCOMAUN and the farmers of the State thus committing offence not only under the IPC but also violations of the provisions of the Fertilisers Control Order under the Essential Commodities Act. 29. For these contentions the petitioners have brought on the record documentary evidence in the shape of the various annexures to the petition. Annexure-4 was the certificate of registration of Govt. of Bihar up to 30th March was later on extended up to 31st March 1989 by Annexure-5 by the Director, Agriculture. Annexure-8 is the notification of the State of Bihar fixing the price of 5 brands of granulated fertilisers at the rate of Rs. 2,559/- per M. T. plus taxes. So the firm was the only authorised one and there was no question of inviting tenders or ascertaining the competitive prices. It was in pursuance of this registration of the firm for the State of Bihar that the firm sent letters-Annexures 7 & 10. When the first letter was received, G. D. Mishra endorsed the same to the Spl. So the firm was the only authorised one and there was no question of inviting tenders or ascertaining the competitive prices. It was in pursuance of this registration of the firm for the State of Bihar that the firm sent letters-Annexures 7 & 10. When the first letter was received, G. D. Mishra endorsed the same to the Spl. Officer, Fertiliser, who in turn sent it to Jogendra Babu who in turn sent it to P. P. Sharma. Similarly on the 2nd letter Annexure-10 the Advisor on getting the same, directly sent it with his note, to P. P. Sharma to examine the same and put up a note immediately in the interest of urgent need of mixed fertilisers. Not only this the Advisor also sent a letter (Annexure-11) to the Director of Agriculture on this subject to NPK fertiliser 15:15:7½ and 18:18:10 and also mentioned about the offer of the firm of Suraj brand as a substitute of the old brand and also quoted the price of Rs. 2,550/- per M. T. Even the field officer; were consulted about the needs of the fertilisers. After that the note was put up to the M. D. who thereafter sent it to the Chairman who in turn approved it and then orders were placed for the supply of fertilisers. This was also at a lower price of Rs. 2509.50 paise inclusive of all taxes, although the Govt. had notified its rate of Rs. 2550/- per M. T. plus sales tax etc. When the payments were to be made for the total 2960 M. T. of NPK whose total price at the rate of Rs. 2509/- per M. T. was about Rs. 73,16,244/- the payment, after deducting less in weight deduction for Rs. 47671/- was Rs. 6553643.12 paise but only 53.97 lacs were paid, thus not only retaining the 10% but about 20% and these payments are made after the signatures by the authorised officer and by P.P. Sharma. Further the testing of this fertiliser was done at the Rajendra Agriculture University a recognised institution to which even the informant R K. Singh himself has referred in another case as appears from Annexure-17 dated 18.2.85. Further when the samples of 11 depots were sent to the Central Fertiliser Control Laboratory, Faridabad, three of them were found to be of standard quality and remaining nonstandard. Further when the samples of 11 depots were sent to the Central Fertiliser Control Laboratory, Faridabad, three of them were found to be of standard quality and remaining nonstandard. Among those nonstandard were 4 samples from another firm namely Rashtriya Chemical and Fertiliser Ltd. and some were from Harbahar manufactured by BISCOMAUN in its factories at Jasidih and Tilrath and three samples of this firm were found to be nonstandard. Even the reprocessing of the material supplied by the firm was the decision of the committee and the same was approved and that reprocessing has brought the BISCOMAUN no loss but profit. The BISCOMAUN has earned Rs. 7071450/- by way of sale of the NIPK and the sale of Harbahar after reprocessing whereas payments to the firm had been made with Rs. 5397227/- Thus gain to the BISCOMAUN was Rs. 1674173.00 paise. After seeing these papers and materials the informant could not have lodged the report. Even the I.O. has said in the case diary (page 17 entry 3) that the informant has stated to the I.O. that all papers connected with case were available with him but he would give them to the I.O. at the later stage, The entry no. 13 at pages 20-22 of the case diary dated 8.9.88 shows that the informant had given the papers to the I.O. 8 days after the lodging of the FIR. All this shows that the informant was doing pick and choose in respect of the records of BISCOMAUN. If all these records, as brought here in the shape of the various annexures (already referred as considered) then the investigation would have a different shape. Not only that the sanctioning authority would have also considered the same, may be for the petitioner P. P. Sharma. This mala fide on the part of the informant is further strengthened by the fact that be has not followed the instructions of the State Govt. as contained in memo No. 105 issued by the Home Ministry, Government of Bihar, on 17.11.86, giving out in clear and categorical terms, that if any FIR is to be lodged against any Govt. officer and also his arrest is to be made then such proceedings are to be started only after obtaining the approval of the Administrative Deptt. and before taking cognizance of such offence sanction u/s 197 Cr.P.C was essential to be obtained. officer and also his arrest is to be made then such proceedings are to be started only after obtaining the approval of the Administrative Deptt. and before taking cognizance of such offence sanction u/s 197 Cr.P.C was essential to be obtained. In the petition it has been said that no such approval from the administrative Deptt. has been obtained and even the FIR is silent and nothing has been said in any affidavit filed on behalf of the respondents. Even for the sanction it was said that it was not necessary but it has been obtained at a very late stage and filed in the court much after the filing of the charge-sheets to the courts. From all these, malafide on the part of the informant is well made out. 30. As regards bias, it all depends as to bow a reasonable person in possession of relevant information, would have thought of the discretionary exercise of power of an authority. If an authority does not act impartially or in good faith, then a reasonable mind can definitely infer bias or prejudice, for reason best known to that authority. This inference can be justified when the authority exercises his discretionary power impartially on seeing the materials on his own without any objection or representation from the aggrieved person, as a prejudice may come in the mind of such authority consciously or unconsciously. But when the authority passes any order objectively on consideration of material in his possession along with objection or representations of the aggrieved person then chances of bias are minimised or may become negligible. However, the test would vary as to how a reasonable mind understand it in a particular case. In the instant case the petitioners have alleged bias on these materials and circumstances. 31. Though allegations of bias and mala fide have been made in various paragraphs of the petitions by both the petitioners against the informant and also the investigating officer, but they have not been impleaded as party. It is only the State of Bihar that has been brought as opposite party. But the investigating officer has filed affidavits in the case. The learned counsel for the State of Bihar has never objected to the allegations or even the investigating officer has raised any finger against those allegations in his various affidavits. It is only the State of Bihar that has been brought as opposite party. But the investigating officer has filed affidavits in the case. The learned counsel for the State of Bihar has never objected to the allegations or even the investigating officer has raised any finger against those allegations in his various affidavits. However, the informant R.K. Singh during the course of arguments has brought on record an affidavit on his own and without obtaining any permission from the record & without any order by the court. Therefore the informant had got the full opportunity to meet the allegations. Sri P.K. Shahi, Advocate has been appearing for him from the very beginning of the case. The informant has said in his own affidavit on 6.11.89 that on 29.7.88 he joined as Managing Director of BISCOMAUN and on 30.7.88 the said Society was superseded and he was designated as Administrator. In the discharge of his duty he directed that huge quantity of Suraj Brand NPK mixture fertiliser was lying in the depot of BISCOMAUN and he found that huge stock was lying unsold and the stock was being sent to the fertiliser factory of BISCOMAUN to be used as raw material for manufacture of Harbahar. On further enquiries of the connected document it was revealed that the petitioners and others have committed serious irregularity and prima facie offence was made out against them under the Essential Commodities Act and various sections of the Indian Penal Code. So he brought this matter to the notice of the police which after investigation has submitted ample evidence of prima facie offence against the petitioners and others. It was further said that as to the allegations in various paragraphs including paras 4, 65, 80, 84, 85, 92, 126, 127, 128, 129, 130 and 131 that he acted mala fide in lodging FIR against the two petitioners and others and that he is pursuing against them for certain reasons, the allegations of mala fide are wholly untrue and denied, and that he has no grudge against the petitioners or any other accused & that further the allegations are completely baseless, concocted, untrue and merely an attempt to malign him. If after joining duty as Administrator and detecting serious acts of omissions and commissions, if he would have not lodged the FIR he would have failed in his duty. If after joining duty as Administrator and detecting serious acts of omissions and commissions, if he would have not lodged the FIR he would have failed in his duty. The FIR was lodged in the discharge of his official duty and he has not acted with any malafide intention. The informant further said that he himself appeared in the said court and filed this affidavit at this stage. Thus the informant denied the allegations of malafide, but did not give out as to why he had not obtained the approval of the Administrative department as required by the aforesaid instruction of the State Govt. Further he has not said as to why he had not considered the whole record of the BISCOMAUN which have been referred to above in the various annexures and further why he had withheld material records. This affidavit by the informant was sworn on 6-11-89 and also filed on 6-11-89, but the covering letter from Sri B.K. Singh Advocate to Sri B.S. Tewari Advocate for petitioner in Cr.W.J.C. No. 90 of 1989 under the signature of Karuganand Pandey, Clerk to Shri P.K. Shahi Advocate for the informant, is dated 30-10-89 with an endorsement of receipt of the copy of the affidavit on 31-10-89 at 11 A.M. On the record there is no affidavit which may have been sworn by the informant or on behalf of the informant on 30-10-89 or even earlier except this affidavit dated 6-11-89. Later on 8-2-90 an affidavit has been filed through P.K. Shahi Advocate on behalf of the informant sworn by Girjanandan Sharma, Addl. S.P. (the I.O. of this case) on 8-2-90 for which neither the court had directed the informant nor the informant had himself sought permission of the court to do so. 32. Later on 8-2-90 an affidavit has been filed through P.K. Shahi Advocate on behalf of the informant sworn by Girjanandan Sharma, Addl. S.P. (the I.O. of this case) on 8-2-90 for which neither the court had directed the informant nor the informant had himself sought permission of the court to do so. 32. But the malafide or bias of the informant will be of secondary importance, if it is found that the investigation produces an unimpeachable evidence disclosing the offence, as observed by the Supreme Court in the case of State of Bihar v. J.A.C. Saldana (supra) ( AIR 1980 SC 326 at 339) para 29 in the following words: "It must, however, be pointed out that if an information is lodged at the police station and an offence is registered; the malafide of the informant would be of secondary importance if the investigation produces unimpeachable evidence disclosing the offence." Here the allegation of malafide against the investigating officer also has been made, which appear to be borne out from the fact that the investigating officer has not collected and brought on record these documentary materials. The entire set of documents of investigation were annexed with the Cr.W.J.C. 280 of 1988 and the petitioner gave a copy to the I.O., then he wrote about them in the case diary as 'Irrelevant' and that they will be investigated later on. The I.O. did not later on investigate on these documents. Further in these two writ petitions also the State or Investigating Officer has not denied the authenticity or truth of these documents nor has he rebutted or contradicted the same, specially in affidavits which have been sworn by this very I.O. It will also come out from the allegations an record that this very I.O. had been attending this court during the course of hearing of these petitions and had full knowledge of the allegations in the petitions. 33. Not only this, the investigating officer during the exercise of his statutory prerogative and jurisdiction has performed his duty in such a way, which is sufficient to expose his mala fide. The petitioner had received a letter by the I.O. under .memo No. 120/C 21-9-88 (Annexure-30) asking the petitioner to come to his office in connection with the said Gandhi Maidan case No. 970/88 and give his defence statement (Safai Bayan). The petitioner had received a letter by the I.O. under .memo No. 120/C 21-9-88 (Annexure-30) asking the petitioner to come to his office in connection with the said Gandhi Maidan case No. 970/88 and give his defence statement (Safai Bayan). On 26-9-88 the petitioner P.P. Sharma vide letter No. 224/C brought to the notice of the T.O. that being called upon to give his Safai Bayan is against the provisions of the Cr.P.C. and Constitution as the stage of giving Safai Bayan comes after the prosecution has completed the investigation and the case is found to be made out on that basis and net earlier. The petitioner has clearly stated that he was not to make Safai Bayan at that stage but was however, willing and ready to give answers to the questions about the facts and circumstances of the case with which he was acquainted. It was also said by him that the FIR contained many falsehoods and errors and incorrect picture and if the petitioner was asked to clarify the same, he promised to do (vide his letter dated 26-9-88 Annexure-31) by giving a written statement on the actual state of affairs in the BISCOMAUN. In this very letter the petitioner had invited the attention of the I.O. towards the said Government of Bihar, Home Department's Circular No. 1075 dated 17-11-86 (Annexure-29) to the effect that if any criminal case is to be filed against a Government officer or he is to be arrested then for appropriate departmental proceeding a recommendation is to be sent to the concerned government department and the approval of the administrative department must be obtained before taking any such step. The I.O. in reply sent a communication (Annexure-32) vide memo no. 3348/AE dated 27-9-88 to the petitioner saying that the registration of the FIR was an established fact, that it was not for the I.O. to look into non-observance of the Govt. circular by the complainant in this regard, that a written and signed statement before the police during investigation of a case is barred by section 162 Cr. 3348/AE dated 27-9-88 to the petitioner saying that the registration of the FIR was an established fact, that it was not for the I.O. to look into non-observance of the Govt. circular by the complainant in this regard, that a written and signed statement before the police during investigation of a case is barred by section 162 Cr. P.C., that refusing to co-operate with the I.O. will amount to contravention of the conditions laid down in the anticipatory bail and that it was not possible to furnish the questionnaire beforehand but the petitioner will have opportunity to inspect the records pertaining to the purchase of the Suraj brand fertiliser and clarify the issues as they come up. So the petitioner was given the last opportunity for presenting the defence by presenting himself in the office of the I.O. on 30-9-88 at 10 hours in the old secretariat C.I.D. wing. The petitioner Sharma on 30.9.88 vide memo no. 226/C (Annexure-33) acknowledged on 28-9-88 the receipt of the said letter and informed him that the Cr.W.J.C. filed by him was fixed before the Chief Justice on 30-9-88 which he was to attend and so he asked him to fix some other date on the 3rd or 4th of October 1988 at 10 A.M. or 3.30 P.M. or any other date or time suitable to him. 34. The petitioner P.P. Sharma then received a memo No. 3519/AE dated 31.9.88 (Annexure-33/1) to the effect that non appearance on the date and time fixed on 30.9.88 without valid reasons was regretable and that no case was listed before the Patna High Court on 30.9.88. However, 1.10.88 at 4 P.M. was next date fixed for appearance of the petitioner in the office of the I.O. The petitioner again sent a letter (Annexure-34) being letter no. 229/C to the I.O. to the effect that Cr.W.J.C. was argued in the court of the Chief Justice on 30.9.88, that all the facts constituting the defence of the petitioner have been stated in his anticipatory bail statement of the said Cr.W.J.C. copies of which were available to the I.O., yet the petitioner was prepared to bring the correct facts to the I.O. in his chambers as desired by him on 1.10.88 at 4 P.M., that the I.O. was giving threat to the petitioner and so he was informing the Special Judge, Patna, about the said threat. The petitioner (Sharma) has also said in this letter that the I.O. was personally present in the court of the Chief Justice on 30.9.88 when the aforesaid Cr.W.J.C. was argued. The petitioner P.P. Sharma appeared for interrogation by the I.O. in his chambers on 1.10.88 at 4 PM. No question of any substance was asked by the I.O. Neither the I.O. himself nor his stenographer recorded the answers given by the P.P. Sharma in reply to the questions by the I.O. The petitioner (Mr. Sharma) had filed an application (Annexure-35) before the learned Special Judge, Patna (Urban) E.C. Act about the unbecoming, intimidating, biased and threatening conduct of the I.O. The petitioner had also filed an applicalion (Annexure-36) on 3.10.88 before the learned Special Judge bringing to the notice of the court the questions put by the I.O. and the answers given by petitioner (Mr. Sharma) 35. The I.O. filed the two charge-sheets one being No. 102/88 u/s 7 of the E.C. Act in the court of the learned Chief Judicial Magistrate, Patna, while the other being No. 103/88 under various sections of the Indian Penal Code before the learned Special Judge, E.C. Act, Patna (Urban) as such neither of them was competent to proceed on the basis of the charge-sheet. When the matter was pointed out then the Special P.P. appointed in this case withdrew the charge-sheets from each of the two courts and he and not the I.O. filed the same in the proper court, in violation of the provisions contained in section 322 Cr.P.C. The order sheet of the court dated 15.10.88 in the court of learned Special Judge shows that till 4.30 P.M. charge sheet had not been filed and the court then fixed 18.11.88 in presence of the lawyers. 36. For the investigation by a police officer, provisions have been made in Chapter XIV Cr.P.C. Investigation is the sole prerogative of the police which is done without sanction of the court and even without its interference. Detection of crime is the purpose of investigation. The I.O. is to collect evidence fairly without any influence, bias or favour, consideration, tilt and partiality. He should not adopt any method or tactics which may tend to bye-passing the rules, regulations and statutory provisions. Detection of crime is the purpose of investigation. The I.O. is to collect evidence fairly without any influence, bias or favour, consideration, tilt and partiality. He should not adopt any method or tactics which may tend to bye-passing the rules, regulations and statutory provisions. He is not to set at naught any legally acceptable evidence or adopt pick and choose method for or against any party, be it the State, informant or even the accused. He has to go at the truth of the case and find out the guilty or the innocent. The law does not want a guilty to go scot free and similarly not any innocent to face the ordeal of investigation and trial, as in both the events, the interest of society suffers and cause of justice is defeated. No one should face harassment or ordeal of criminal trial unless substantial and good materials are discovered during investigation. The more the rank status and position of the I.O. the more responsibilities, consciousness, bona fide and uprightness is expected of him. The investigation should be upto mark and should be of high order. The investigating agency must not disabuse its mind of the guided conclusions. He is not to act under a preconceived idea of the guilt of the person accused. He is not to pursue the investigation in such a manner as to give an impression to a reasonable mind that be was bent upon securing the conviction of the accused. The investigation should not show that it is being guided and propelled by some one virtually interested in distortion of facts and de-shaping of events leading an innocent to dock and a guilty to escape from the clutches of law. The I.O. in the discharge of his duty is not to be misguided or misdirected by the conjectural, artificial and cooked up, distorted and manipulated version. He is expected to gather the entire material so that the truth and falsehood may be found out by the court on the basis thereof and also the evidence to be led further in the light of the investigation should not show anywhere that the officer concerned has been moved by any consideration other than discharge of his duty. His satisfaction about the matter must be real and rational not colourable, fanciful, mechanical or unrelated to the objects of investigation. His satisfaction about the matter must be real and rational not colourable, fanciful, mechanical or unrelated to the objects of investigation. He is not to do, even with an innocent mind, something which may inflict an injury upon another person in contravention of law. If he allows to do so it may lead to an inference that the exercise of power was fraudulent and corrupt or even motivated. A conviction or acquittal is neither to be sought nor given by questionable means. One thing is to be remembered that just as the courts of law are the ultimate protection against all illegalities, similarly the citizens look towards the police for the protection from the highhandedness and illegalities, as the police is said to be one of the long hands of machinery of law, justice and fair play. Misuse or abuse of powers will lead to chaos and failure of machinery of law and justice, with the result that the life, liberty and all constitutional guarantees will be jeopardised. That is why the police after investigating the case is to submit its report for or against somebody which is for consideration of the court, which has the ultimate say in the matter. 37. In the case of Emperor v. Nazir Ahmad (supra) the Privy Council has observed as seen above that there is statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities. In the case of P. Sirajuddio v. State of Madras ( AIR 1971 SC 520 ) after referring to Chapter XIV Cr. P.C. sections 161, 162, 163 and 164 Cr. P.C. and sections 27 and 32 of the Evidence Act at page 527 (para 19) the Supreme Court observed : "All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case : howsoever serious the crime and howsoever incriminating the circumstances may be against a person supposed to be guilty of a crime, the Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating into the crime before the lodging or a charge sheet. Clearly the idea is that no one should be put to the harassment of a criminal trial unless there are good and substantial reasons for holding it". Further referring to the investigation conducted in that case their Lordships observed at page 528 (para 21) : "The whole course of investigation as disclosed in the affidavits is suggestive of some predetermination of the guilt of the appellant. The enquiring officer was a high ranging police officer and it is surprising that simply because he was technically not exercising powers under Chapter XIV of the Criminal Procedure Code in that a formal first information report had not been lodged he overlooked or deliberately over-stepped the limits of investigation contained in the said Chapter." Further in para 24 it was observed: "But the whole course of investigation is suggestive of guidance by someone who was intimately familiar with the affairs of the appellant and his department and throwing out scents which the investigating officers were only too keen to pick up and follow. The appellant may have been guilty of all the charges levelled against him but we cannot approve of the manner in which the investigation against him was conducted and an attempt made to lay a guideline for the persons who were to be cited as prosecution witnesses in their evidence at the trial." In the case of State of Bihar v. J.C.A. Saldana (supra) it has been said : "Investigation comprehends detection of the crime" (para 14 at page 332). "The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once this is completed and investigating officer submits report to the court requesting the court to take cognizance of the offence u/s 190 of the Code its duty comes to an end" para 25 para 338). Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once this is completed and investigating officer submits report to the court requesting the court to take cognizance of the offence u/s 190 of the Code its duty comes to an end" para 25 para 338). In the case of State of West Bengal v. Swapan Kumar Guha (supra) it has been said at page 958 in para 22 : "There is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed unlimited discretion in that sphere can become a ruthless destroyer of personal freedom. The power to investigate into cognizable offences muss, therefore, be exercised strictly on the condition on which it is granted by the Code". Further at page 971 (para 64) it was said: "An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interest of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same." In the case of State of West Bengal v. Sampat Lal (supra) where the police had submitted charge-sheet saying that it was a case of suicide and not murder their Lordships referred to the earlier pronouncements of the apex court about the investigation and jurisdiction of the court to interfere. In respect of that case it was observed that the investigation carried out had not been quite satisfactory and from the materials placed before their Lordships they had a feeling that in the conduct of the investigation the police authorities have been more concerned with trying to establish that the reports were not based on correct materials and the proper conclusions have not been drawn rather than into carrying out an intensive investigation in an objective manner and that the police during their investigation could not find any clue to establish kidnapping of the boys rather they formed a tentative opinion that the two boys had committed suicide, and that it is necessary that the investigating agency must disabuse its mind of the tentative conclusion. So it was necessary that greater candour should be exhibited and the investigating agency should with an open mind collect all materials and they only eliminate that which is to be discarded and reason the rest to be used for its purpose. In the case of Balbir Singh v. State of Haryana (1987 SCC (Cr.) 193) it was observed: "It was highly regretable that the authorities concerned should have launched the prosecution under the Act in a manner which can be easily termed as cavalier...... having regard to all these features the investigation of the case under the Act is not only to be thorough but also of a high order." 38. The petitioners in this case have alleged about the malafide not only on the part of the• informant in launching the prosecution but also of the investigating officer in the investigation and submission of charge-sheet. In these circumstances it is to be seen as to what is mala fide and whether, this court can look into that matter. In the popular sense malafide means ill will, dishonest intention or corrupt motive. But the meaning of malafide in the legal sense will have to be considered and followed, Lord Somervell in Smith v. East Elloc Rural District Council (1956 (A.C.) 736) has observed at page 770: "Malafide is a phrase often used in relation to the exercise of statutory powers. It has never been precisely defined as its effects have happily remained in the region of hypothetical cases. It covers fraud and corruption." The Supreme Court in the case of Smt. S.R. Veakataramsn v. Union of India and anr. It has never been precisely defined as its effects have happily remained in the region of hypothetical cases. It covers fraud and corruption." The Supreme Court in the case of Smt. S.R. Veakataramsn v. Union of India and anr. ( AIR 1979 SC 49 ) has observed at page 51 in para 5- "Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse or for want of reasonable and probable cause." There can be malice in law as also in fact. Viscount Halden L. C. in Shearer v. Shields (1914 (A.C.) 808) has observed at page 813. "Between malice in fact and malice in law there is a broad distinction which is not peculiar to any particular system of jurisprudence. A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he has taken to know the law and he must act within the law. He may, therefore, be guilty of malice in law, although so far the state of his mind is concerned, his acts ignorantly and in that sense innocently." In the case of A.D.M., Jabalpur v. Shivakant Shukla (AIR 19 76 SC 1207) at page 1258 in para 207 the Supreme Court has observed : "Between malice in fact and malice in law, as observed by Viscount Halden, L.C. in the case of Shearer v. Shields 1914 A.C. 808 (Scot) there is a broad distinction which is not peculiar to any particular system of jurisprudence. A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently. Malice in fact is quite a different thing; it means an actual malicious intention on the part of the person who has done the wrongful act, and it may be, in proceedings based on wrongs independent of contract, a very material ingredient in the question of whether a valid cause of action can be stated. Malice in fact is quite a different thing; it means an actual malicious intention on the part of the person who has done the wrongful act, and it may be, in proceedings based on wrongs independent of contract, a very material ingredient in the question of whether a valid cause of action can be stated. The above principle was applied by this court in detention matters in Bhut Nath v. State of West Bengal, (1974) 3 SCR 315 = ( AIR 1974 SC 806 )". In the case of Bhutnath v. State of West Bengal (1974 (3 SCR) 315= AIR 1974 SC 806 ) in connection with a case under MISA the Supreme Court observed at page 811 in para 14 : "The District Magistrate should be bona fide satisfied about the prejudicial activities of the defence. Absence of bonafides in this context does not mean proof or malice, for an order can be malafide although the officer is innocent. The important point is that the satisfaction of the public functionary, though subjective, must be real and rational, not colourable, fanciful, mechanical or unrelated to the objects enumerated in section 3 (1) of the Act." In the case of J.A.C. Saldana (supra) the above observations of Viscount Halden were quoted while referring to the arguments of the counsels. In the case of Suraj Pal Sahu v. State of Maharashtra and another (1986 SCC (Cr.) 452) at page 464 in paras 24 & 25 it was observed: "When we speak of an order being made malafide, if did not mean that the Court attributed to the detaining authority any improper motive." (para 24). "An order is malafide when there is malice in law although there is no malice in fact. The malice in law is to be inferred when an order is made contrary to the objects and purposes of the Act. Whether in any particular case this is so or not must depend upon the facts and circumstances of the case"... (para 25). In the case of Sheonandan Paswan v. State of Bihar (supra) it has been said at page 112 of SCC (Cr.) in para 16 : "It is well established proposition of law that a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of malafides or political vendetta of the first informant or the complainant. It was rightly observed by Krishna Iyer, J. in State or Punjab v. Gurudayal Singh (1980 ( 1 SCR) 1271) = AIR 1980 SC 319 ) in para 9 that : "If the use of power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal." In the case of Barium Chemicals Ltd. v. Company Law Board ( AIR 1967 SC 295 ) at page 323 in para 60 it has been observed : "Though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides, dishonestly or corrupt purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there arc no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In anyone of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts." In the case of Hukum Singh v. State or Punjab (1975 Cr.LJ. 902) the Full Bench has said at page 908 in para 17 : "In my opinion the mala fide exercise of power is species of fraud and the power which is mala fide exercised, so as to say that the same is exercised for extraneous considerations, which are not germane to exercise of the power in question is ultra vires. In fact it appears that the malafide exercise of power when alleged is a question which would involve the consideration of extraneous factors having resulted into the exercise of power which again will be covered by the question as to whether the power exercised is within the extent of the power conferred, which matter even according to the learned counsel for the State is justiciable. In my opinion the question of mala fide exercise of power is a question which courts will always have jurisdiction to examine when a proper case is made out for examining the said question. It is of course true that before the court can examine the question of mala fide exercise of powers, the petitioner should approach the court as to make out a prima facie case and he has to discharge the initial onus as laid down by ordinary rules of evidence before the State can be put to prove to justify the order ... ... ... ... From what has been stated above it is clear that mala fide exercise of power is a species of fraud and the use of power malafide is a question which is always justiciable before the courts of law. It is well settled that even the executive orders, if passed mala fide, are ultravires and vitiated." 39. Thus malafide has no precise meaning. In its legal sense it may mean malice, while doing a wrongful act intentionally but without a reasonable and probable cause. It is used in relation to the exercise of a statutory power. Every power is exercised reasonably, honestly, bona fide and in accordance with law of her wise the exercise of the power becomes bad and action illegal. The power is not to be exercised dishonestly, maliciously, without motive or intention. If the person exercising the power is motivated by personal animosity towards the persons affected, then it becomes a colourable and malicious exercise of power which is a species of fraud and exercise of power for extraneous considerations and with malice. It inflicts injury upon a person not innocently, though within the frame work of law. Malice may be malice of law and malice in fact. Malice in law can be inferred from the doing of the wrongful act intentionally without any just cause or excuse or without there being any reasonable or probable, cause contrary to the purpose of the statutory provision. Malice in fact is the actual malicious intention of the person doing a wrongful act on account of corrupt and oblique motive or personal vendetta. So mala fide exercise of power becomes apparent when a person exercises a power, which is colourable, dishonest, malicious, motivated against the spirit and objects of the statute and has element of personal vendetta and grudge. So mala fide exercise of power becomes apparent when a person exercises a power, which is colourable, dishonest, malicious, motivated against the spirit and objects of the statute and has element of personal vendetta and grudge. No hard and fast rule can be laid down and it differs from case to case. However, any order passed malafide is vitiated. 40. As regards the question of justiciability of malafide and the court's jurisdiction to examine the same, it is borne out from these various pronouncements:- (a) In the case of S. Pratap Singh v. State of Punjab ( AIR 1964 SC 72 ) their Lordships of the Supreme Court have been pleased to observe at page 83 (para 9) : "The only question which could be considered by the court is whether the authority vested with the power has paid attention to or taken into account circumstances, events or matters wholly extraneous to the purpose for which the power was vested or whether the proceedings have been initiated mala fide for satisfying a private or personal grudge of the authority against the officer. If the act is in excess of the power granted or is an abuse or misuse of power, the matter is capable of interference and rectification by the Court. In such an event the fact that the authority concerned denies the charge of mala fides, or asserts the absence of oblique motives or of its having taken into consideration improper or irrelevant matter does not preclude the court from enquiring into the truth of the allegations made against the authority and affording appropriate reliefs to the party aggrieved by such illegality or abuse of power in the event of the allegations being made out." (b) In the case of C. S. Rowjee v. State of Andhra Pradesh (AIR 1964 SC 964) at pages 969-70 in para 20 their Lordships observed: "It is no doubt true that allegations of malafide and of improper motives on the part of those in power are frequently made and their frequency has increased in recent times. It is somewhat unfortunate that allegations of this nature which have no foundation in fact are made in several of the cases which have come up before this and other courts and it is found that they have been made merely with a view to cause prejudice or in the hope that whether they have basis in fact or not Some of it at least might stick. Consequently it has become the duty of the court to scrutinise these allegations with care so as to avoid being in any manner influenced by them, in cases where they have no foundation in fact. In this task which is thus east on th6 courts it would conduce to a more satisfactory disposal and consideration of them if those against whom allegation are made came forward to place before the court either their denials or their version of the matter so that the court may be in a position to judge as to whether the onus that lies upon those, who make allegations of mala fide on the part of the authorities of the status of those with which this appeal is concerned for the discharge of their burden of proving it. In the absence of such affidavits or of materials placed before the court by these authorities, the court is left to judge the veracity of the allegations merely on test of probability with nothing more substantial by way of answer. This is precisely the situation in which we find ourselves in the present case." (c) In the case of E. B. Royapa v. State of Tamil Nadu ( AIR 1974 SC 555 ) their Lordships at page 586 in pare 92 observed : "Secondly we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fide are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility."... ................. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which arc necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstance are not known. ................. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which arc necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstance are not known. The Court would, therefore, be slow to draw dubious inference from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up these considerations are wholly irrelevant in judicial approach but because otherwise, functioning effectively would become difficult in a democracy. It is from this stand-point that we must assess the merits of the allegation of mala fides made by the petitioner against the second respondent." (d) In the case of State (Delhi Admn.) v. V. C. Shukla ( AIR 1980 SC 1382 ) it has been observed at page 1415 in para 83 : "Further more prejudice, malice or bias is not a matter for presumption in the absence of evidence supporting it. It is well settled that burden lies on the parties alleging bias or malice to prove its existence, and if malice or bias is proved in a particular case the Court would strike down the Act initiated by it, in exercise of its inherent powers under Arts. 226, 227 or 136" (e) In the case of Shivajee Rao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi ( AIR 1987 SC 294 ) at page 306 in para 37 it was observed : "It is well to remember that Rajagopala Ayyangar, J. speaking for this court in C. S. Rowjee v. Andhra Pradesh State Road Transport Corporation (1964) 6 SCR 330: ( AIR 1964 SC 962 ) observed at page 347 (of SCR) : (at p.969 of AIR) of the report that where allegations of this nature were made, the court must be cautious. It is true that the allegation of malafides and of improper motives on the part of those in power are frequently made and their frequency has increased in recent times. This court made these observations as early as 1964. It is more true today than ever before. But it has to be borne in mind that things are happening in public life which were never even anticipated before and there are several glaring instances of misuse of power by men in authority and position. This is a phenomenon of which the courts are bound to take judicial notice. In the said decision the court noted that it is possible to decide a matter of probabilities and of the inference to be drawn from all circumstances on which no direct evidence could be adduced. The court further noted that it was somewhat unfortunate that allegations of mala fide which could have no foundation in fact were made in several cases which had come up before this court and other courts and it had been found that these were made merely with a view to cause prejudice or in the hope that whether they have basis in fact or not some of which might atleast stick. It is, therefore, the duty of the courts, warned this court in the said decision, to scrutinize these allegations with care so as to avoid being in any manner influenced by them in cases where they have no foundation in fact. In this task which is cast on the courts, it will be conductive to have disposal and consideration of them if those against whom allegations are made came forward to place before the court either the denials or their version of the matter so that the courts might be in a position to judge whether the onus that lay upon those who make allegations of mala fides on the part of the authorities had been discharged in proving it." (f) In the case of Ram Lall Bhandari v. State of Sikkim and others ( AIR 1987 SC 762 ) at page 765 in para 7 it was observed: "The petitioner has made various allegations of mala fides against the Chief Minister of Sikkim. These allegations are not supported by any acceptable evidence. Therefore, we do not propose to consider them. These allegations are not supported by any acceptable evidence. Therefore, we do not propose to consider them. Much was made of the fact that the Chief Minister has not filed a counter affidavit himself denying the allegations. According to us it is not necessary since the allegations are wide in nature and are bereft of details. We do not think it necessary in all cases to call upon persons placed in high positions to controvert allegations made against them by filing affidavits unless the allegations are specific, pointed and necessary to be controverted, "When the allegations of malafide are made in the petition it becomes the duty of the parties charged with mala fide to appear on opportunity being afforded by the court and say in defence with definiteness and in categorical terms as to whether the allegations are correct or not. (g). In the case of Express Newspapers Pvt. Ltd. & Ors. v. Union of India and Ors. ( AIR 1986 SC 872 ) at page 924 (para 115) it has been observed: "Where malafides are alleged, it is necessary that the person against whom such allegations are made should come forward with an answer refuting or denying such allegations. For otherwise such allegations remain unrebutted and the Court would in such a case be constrained to accept the allegations so remaining unrebutted and unanswered on the test of probability." 40A. At times the exercise of power becomes colourable and with bad faith. For colourable exercise of power the Supreme Court has said in the case of Chartered Bank, Bombay v. The Chartered Bank Employees' Union and another ( AIR 1960 SC 919 ) at page 922 (para 8) : " In Buckingham and Carnatic Co. Ltd. v. Workers of Company, 1952 Lab. AC 490, the Labour Appellate Tribunal had occasion to consider this matter relating to discharge by notice or in lieu thereof by payment of wages for a certain period without assigning any reason. It was of opinion that even in a case of this kind the requirement of bona fides is essential and if the termination of service is a colourable exercise of the power or as a result of victimisation or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination. It was of opinion that even in a case of this kind the requirement of bona fides is essential and if the termination of service is a colourable exercise of the power or as a result of victimisation or unfair labour practice the industrial tribunal would have the jurisdiction to intervene and set aside such termination. Further it held that where the termination of service is capricious, arbitrary, or unnecessarily harsh on the part of the employer judged by normal standards of a reasonable man that may be cogent evidence of victimisation or unfair labour practice. In the case of the Collector (Distt. Magistrate), Allahabad and anr. v. Raja Ram Jaiswal ( AIR 1985 SC 1622 ) at page 1634 (para 26) it was observed: "Where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. And in this context "in good faith" means 'for legitimate reasons'. Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated. If the power to acquire land is to be exercised, it must be exercised bona fide for the statutory purpose and for none other. If it is exercised for an extraneous, irrelevant or non-germane consideration, the acquiring authority can be charged with legal mala fide. In such a situation there is no question of any personal ill will or motive. In Municipal Council of Syedney v. Campbell 1925 AC 338 at P. 375 it was observed that irrelevant considerations on which power to acquire land is exercised, would vitiate compulsory purchase orders or scheme depending on them. In State of Punjab v. Gurdial Singh (1980) 1 SCR 1071 : ( AIR 1980 SC 319 ) acquisition of land for constructing a grain market was challenged on the ground of legal malafides. Upholding the challenge this Court speaking through Krishna Iyer. In State of Punjab v. Gurdial Singh (1980) 1 SCR 1071 : ( AIR 1980 SC 319 ) acquisition of land for constructing a grain market was challenged on the ground of legal malafides. Upholding the challenge this Court speaking through Krishna Iyer. J. explained the concept of legal mala fides in his hitherto inimitable language diction and style and observed as under (at p. 321 of AIR): "Pithily put, bad faith which invalidates the exercise of power-sometimes called colourable exercise or fraud on power and of Leo times overlaps motives, passions and satisfactions—is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in Law when he stated: "I repeat ... ... ... that all power is a trust-that we are accountable for its exercise that, from the people, and for the people, all springs, and all must exist." In the case of Express Newspapers Pvt. Ltd v. Union of India (supra) at page 925 (paras 115 & 116) it has been observed: "Mala fides on the part of the Government in power or its functionaries would be sufficient to invalidate the impugned notices. Fraud on power vitiates the impugned orders if they were not exercised bona fide for the purpose for which the power was conferred." Professor de Smith in his monumental work the Judicial Review of Administrative Action 4th edition at pp. 335-36 says in his own terse language: "The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it may be said to comprise dishonesty (or fraud) and malice. 335-36 says in his own terse language: "The concept of bad faith eludes precise definition, but in relation to the exercise of statutory powers it may be said to comprise dishonesty (or fraud) and malice. A power is exercised fraudulently if its repository intends to achieve an object other than that for which he believes the power to have been conferred ... … ... A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise." He then goes on to observe: "If the Court concludes that the discretionary power has been used for an unauthorized purpose it is generally immaterial whether its repository was acting in good or bad faith. But there will undoubtedly remain areas of administration where the subject matter of the power and the evident wdth of the discretion reposed in the decision-maker render its exercise almost wholly beyond the reach of judicial review. In these cases the Courts have still asserted jurisdiction to determine whether the authority has endeavoured to act in good faith in accordance with the prescribed purposes. In most instances the reservation for the case of bad faith is hardly more than a formality. But when it can be established, the Courts will be prepared to set aside a judgment or order procured or made fraudulently despite the existence of a generally worded formula purporting to exclude judicial review. Bad faith is here understood by the learned author to mean intentional usurpation of power motivated by considerations that are incompatible with the discharge of public responsibility. In requiring statutory powers to be exercised reasonably, in good faith, and on correct grounds, the Courts are still working within the bounds of the familiar principle of ultra vires. The Court assumes that Parliament cannot have intended to authorize unreasonable action which is therefore ultra vires and void. This is the express basis of the reasoning in many well-known cases, on the subject. A necessary corollary is that as usual throughout administrative law, we are concerned only with acts of legal power i.e. acts which, if valid, themselves produce legal consequence." 41. Thus the allegations of mala fide are justiceable. There must be material on the record on the basis of which the court may come to a conclusion as to whether the allegations are sustainable. Thus the allegations of mala fide are justiceable. There must be material on the record on the basis of which the court may come to a conclusion as to whether the allegations are sustainable. The party alleging the mala fide should give out the allegations in detail with accuracy so that the court may examine the matter and may also call upon the other side against whom allegations of mala fide have been made to controvert the same. If after examining the matter the court finds that the exercise of power is a species of fraud and not bona fide but mala fide; then the court will pass suitable orders declaring the orders as vitiated by malafide. 42. If the ends of justice is justice and spirit of justice is fairness then the exercise of power should be in accordance with law and justice. Justice and fair play are the main, consideration not only in the court but for the authorities exercising any statutory powers and duties. Fairness of the trial is enshrined in the Art. 21 of the Constitution and that fairness requires the authorities concerned to promote public justice. Those entrusted with the statutory duties cannot by their negligence, bias, disregard of their position and status and authority be allowed to cause public inconvenience and mischief, harassment to the law abiding citizen and also unnecessary harassment even to the public officers in the discharge of duties because otherwise it will amount to defeating the object of the statute. Such person and authority should not be allowed to subvert the legal process as it will lead to a loss of faith in justice and fair play. 43. In the present case the investigating officer exercising his statutory duty was required to exercise his power with no other consideration except the discharge of duty of collecting evidence and place the same before the court with his opinion which would have been subject to final say by the court u/s 190 to take cognizance or not to take cognizance. The I.O. cannot assume the role of deciding a particular evidence as irrelevant. It was an abuse of the statutory duty to have ignored the evidence which has been brought to his notice, and also these which were already on the record of the BISCOMAUN. An officer of the rank of Dy. S.P., C.I.D., has specialised training of collecting materials during investigation. It was an abuse of the statutory duty to have ignored the evidence which has been brought to his notice, and also these which were already on the record of the BISCOMAUN. An officer of the rank of Dy. S.P., C.I.D., has specialised training of collecting materials during investigation. His investigation was expected to be of high order up to the mark because of his special professional ability and acumen. The court in the exercise of its power can see the entire set of circumstances consisting of not only the conduct of the I.O. but his connection in the discharge of his duty as I.O. with the informant and also the accused. If the conduct and the attitude of the informant or the accused both had been mala fide, biased, fanciful, colourable, conjectural, unfair, unjust and even illegal, it will have no effect if the investigation conducted by the investigating agency appears to be fair, just, in accordance with law, bonafide and credible. All such considerations are to be looked by the court. 44. Not only during the investigation of the case but even after the filing of the charge-sheet in court, as seen above, the I.O. has been conducting in such a way as to give a reasonable impression that he was biased against the petitioners and his actions were not bona fide. He had been filing affidavits not only on behalf of the Government but even for the informant. On 19-9-89 which was the date fixed by the Bench for hearing the Cr.W.J.Cs. following the order of the Supreme Court in SLP No. 1342 of 1989, an application was filed for the stay of hearing of the cases, as the State was planning to move the Supreme Court for transferring the cases to some other High court. In support of this applications, two affidavits were filed by the very I.O., one on behalf of the State and the other on the direction of the informant R.K. Singh. Further on 8-2-90 an affidavit sworn by the I.O. on behalf of the informant was filed. He had said that he was an Addl. Superintendent of Police at present posted in Vigilance Department, Co-operative Cell, Patna. This affidavit was filed by Sri P.K. Shahi, Advocate, on behalf of the informant. Further on 8-2-90 an affidavit sworn by the I.O. on behalf of the informant was filed. He had said that he was an Addl. Superintendent of Police at present posted in Vigilance Department, Co-operative Cell, Patna. This affidavit was filed by Sri P.K. Shahi, Advocate, on behalf of the informant. All this shows that the I.O. has been guided by the informant, who has got his own counsel, whereas the Investigating officer is the police officer who was represented by Sri J.N.P. Sinha, Government Advocate, Since deceased. Further it is not borne out from any material on the record that Sri P.K. Shahi had been appointed as a Special Counsel by the State of Bihar. 45. Thus on account of the fact that the I.O. has not considered the documents on records, holding them to be irrelevant has acted in a biased manner and also mala fide. Apparently it appears that if those documents had been considered during the investigation it could also lead to an inference to a reasonable mind that the firm was a registered one; it has got a licence by the State of Bihar creating its monopoly, that the firm could offer its fertiliser for sale and the same was offered, that when the correspondence came to the office of the BISCOMAUN some proceedings have been initiated at the lower level and after getting the reports and discussions not only in the higher ranks but in the lower ranks also the purchase of the fertiliser of the firm was approved by the high ups including the committee of the BISCOMAUN. Further the rates offered were less than the rates approved by the State of Bihar, that the quantity offered by the firm, though deficient on some examination of some samples was not wholly deficient and that in comparison to the samples of not only other outside firms but even the BISCOMAUN itself, that the testing was done at the Agriculture University and also at Faridabad State laboratory at the instance of the fertiliser inspectors after taking the samples from the various depots of BISCOMAUN, that the decision to re-process the fertiliser in the stock of BISCOMAUN was approved by the high ups of the BISCOMAUN and the re-processing had yielded a profit of Rs. 1673223/- as Rs. 1673223/- as Rs. 5398227/- were paid to the firm as the price of its supplies whereas the sale of the reprocessed fertiliser had brought the BISCOMAUN a sum of Rs. 7071450/- as will appear from the paragraphs 53 and 70 of the case diary. These matters are not controvrted and are borne out from the records. If these documents had not been withheld or brushed aside and had been considered as provided u/s 173 Cr.P.C. during the course of investigation and collection of evidence, then this charge-sheets would not have been filed, rather are port for the accused. But the I.O. has done otherwise which all shows his mala fide and guided investigation. Further during the course of investigation the I.O. has conducted himself in such a manner, as noted above, which has given an impression that he was not doing the investigation impartially and fairly. Even after the filing of the charge-sheet the conduct of the I.O. is not appreciable. He has been filing the affidavits in the High Courts for the informant which was not expected of him. Above all, whatever he has done and whatever allegations have been made against him about the mala fide and the truth of the document in the form of annexures to these writ petitions, there is no denial at all by the I.O. in respect of those documents and allegations. As such the malafide on the part of the I.O. is well proved. Because the investigation itself is mala fide and is also not of unimpeachable character, so the malafide of the informant cannot be left out of consideration. The mala fide of the informant and also the mala fide of the investigating officer both taken together along with the investigation itself being of impeachable character, amounts to mala fide of the prosecution. So for these reasons, the whole of investigation and the two charge-sheets are vitiated by mala fide. 46. Learned counsel for the petitioner-P.P. Sharma has said that the sanction for prosecution as provided under section 197 Cr.P.C. against the petitioner who was and even today is an I.A.S. officer is not a sanction in accordance with law. So for these reasons, the whole of investigation and the two charge-sheets are vitiated by mala fide. 46. Learned counsel for the petitioner-P.P. Sharma has said that the sanction for prosecution as provided under section 197 Cr.P.C. against the petitioner who was and even today is an I.A.S. officer is not a sanction in accordance with law. In this case charge-sheet has been submitted against the petitioner-P.P. Sharma in respect of the offences under the Indian Penal Code and also under the Essential Commodities Act for which sanction is required not only under section 197 Cr.P.C. but also u/s 15-A of the Essential Commodities Act. For the sake of convenience both the provisions are being quoted hereinafter : "197. (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction— (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government. (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. (2) ... ... ... (3) ... ... ... (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge. (2) ... ... ... (3) ... ... ... (4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge. Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held." 15-A. "Prosecution of public servants.—Where any person who is a public servant is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his duty in pursuance of an order made under section 3, no court shall take cognizance of such offence except with the previous sanction: (a) of the Central Government, in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union; (b) of the State Government in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the State." 47. What is the object of sanction as provided under these two sections ? The courts in India have been making observations about this protection from time to time. In the case of Sri Ram Pd. Singh v. Crown (AIR 1939 FC 159) at page 175 the Federal Court observed as following:- "It must be conceded that the protection given to public servant under section 270, which applies both to civil and criminal proceedings is intended to be real and not merely illusory. The intention seems to be to prevent them from being unnecessarily harassed, and the criminal prosecution, except with the previous consent of the Governor General or the Governor, is prohibited and proceedings started without such consent declared illegal." In the case of S.S. Chari v. State of U.P. ( AIR 1962 SC 1573 ) the supreme court has observed (in para 19) : "It is clear that the first part of section 197 (1) provides a special protection inter alia to a public servant who are not removable from their office. Save by or with the sanction of the State Government or Central Government where they are charged with having committed offences while acting or purporting to act in the discharge of their official duties... ... ... The effect of section 197 (1) clearly is to save a public servant from frivolous prosecution." In the case of Bhagwan Pd. Srivastava v. N. P. Mishra ( AIR 1970 SC 1661 ) at page 1663 in para 4 their Lordships observed: "This section is designed to facilitate effective and unhampered purpose of their official duty by public servant by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction for their prosecution as a condition precedent to the cognizance of the cases against them by courts." In the case of C. R. Bansi v. State of Maharashtra ( AIR 1971 SC 786 ), in a case under the Prevention of Corruption Act, their Lordship observed at page 789 in para 8. "The policy underlying section 6 and similar section is that there should be no unnecessary harassment of public servant.' In the case of Pukbraj v. State of Rajasthan and another ( AIR 1973 SC 2591 ) it has been observed at page 2592 in para 2 : "The intention behind the section is to prevent public servants from being unnecessarily harassed. In the case of Md. Iqbal Ahmad v. State of A.P. ( AIR 1979 SC 677 ) at page 679 it was observed: "The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Govt. servants against frivolous prosecution......" In the case of Bakshish Singh Brar v. Smt. Gurmesh Kaur ( AIR 1988 SC 257 ) at page 260 (in para 6) it has been observed: "It is necessary to protect the public servant in the discharge of their duties. servants against frivolous prosecution......" In the case of Bakshish Singh Brar v. Smt. Gurmesh Kaur ( AIR 1988 SC 257 ) at page 260 (in para 6) it has been observed: "It is necessary to protect the public servant in the discharge of their duties. They must be made immune from being harassed in criminal proceedings and prosecution that is the rationale behind section 196 and section 197 Cr.P.C. In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far a public servant working in discharge of his duties or purported discharge of his duties and whether the public servant has exceeded his limit. In the case of Harihar Rai v. State of Bihar and Ors. (1988 PLJR 230) S. S. Hasan, J. of this court observed in para 5: "This section was introduced by an alien regime to protect its officials who in order to serve the interest of Raj, even went beyond their brief. This legacy has been preserved by the citizens of free India also as protective cover against malafide prosecution with an eye of victims. The supreme court in various decisions has now enunciated the law clearly and specially. Putting this in my own language, if a public servant is acting within the bounds of his duties however strong and harsh his action, he is protected but if, however, he acts in a manner that has no nexus to the duty of a public servant then the protection of section 197 disappears and the court will take cognizance for that offence, if any, committed...Apart from section 197 of the Code there are various laws and statutes which bar prosecution without sanction. These provisions are not fettered in any way by the qualifications introduced by section 197". Besides these provisions of section 197, Section 15-A of the E. C. Act also gives the same protection against the prosecution of the public servants. 48. Protection of Government servant in the discharge of their duty has been provided not only u/s 197 Cr.P.C. and section 15-A of the E.C Act but also under the Prevention of Corruption Act where section 5-A was inserted in 1952 whereby the offence by public servant was made non-cognizable. 48. Protection of Government servant in the discharge of their duty has been provided not only u/s 197 Cr.P.C. and section 15-A of the E.C Act but also under the Prevention of Corruption Act where section 5-A was inserted in 1952 whereby the offence by public servant was made non-cognizable. In the case of A.R. Antulay v. R.S. Nayak ( AIR 1984 SC 718 ), a case under the Prevention of Corruption Act, the Supreme Court in para 25 has referred to its two decisions in H.N. Rishbud and Inder Singh v. State of Delhi (1955) 1 SCR 1150 : 1955 SC 196 and State of M.P. v. Mubarak Ali (1959 Suppl. (2) SCR 201; ( AIR 1959 SC 707 ). In respect of decision in Rishbud's case the Supreme Court- observed at page 730 : "The underlying policy in making these offences by public servants non-cognizable appears to be that the public servants who have to discharge their functions often enough in difficult circumstances should not be exposed to the harassment of investigation against them on information levelled possibly by persons affected by their official acts, unless a magistrate is satisfied that an investigation is called for, and on such satisfaction authorises the same. This is meant to ensure the diligent discharge of their official functions by public servants, without fear or favour." Further for the decision in Mubarak Ali's case their Lordships observed at page 731 : "This court held that section 5-A was inserted in the 1952 Act to protect the public servants against harassment and victimisation. If it was in the interest of the public that corruption should be eradicated, it was equally in the interest of the public that honest public servants should be able to discharge their duties free from false, frivolous and malicious accusations." 40. Section 15 of the E.C. Act itself protects a Government servant against any action done in good faith and not otherwise. In the case of Ram Narain v. Ram Pd. (AIR 1954 Nagpur 41) protection to the Government servant has been given if his action is in good faith and not otherwise. In the case of Rubia Bai v. Custodian Evacuee Property ( AIR 1961 SC 1002 ) it has been observed that good faith is always a matter to be determined on the basis of facts and circumstances of each case. In the case of Rubia Bai v. Custodian Evacuee Property ( AIR 1961 SC 1002 ) it has been observed that good faith is always a matter to be determined on the basis of facts and circumstances of each case. Section 16 of Preventive Detention Act also protects from suit, prosecution or legal proceedings any person for anything done in good faith or intended to be done in pursuance of the Act. The Supreme Court in the case of A.K. Roy v. Union of India ( AIR 1982 SC 710 ) at page 741 (para 80) observed: "If the policy of a law is to protect honest acts, whether they are done with care or not, it cannot be said that the law is unreasonable. In fact honest acts deserve the highest protection. Then again, the line which divides a dishonest act from a negligent act is often thin and speaking generally, it is not easy for a defendant to justify his conduct as honest, if it is accompanied by a degree of negligence. The fact, therefore, that the definition contained in S. 3 (22) of the General Clauses Act includes negligent acts in the category of acts done in good faith will not always make material difference to the proof of matters arising in proceedings under S. 16 of the Act." 50. Section 79 of the Indian Penal Code also protects a public servant for acts done in good faith in execution of his official duties. In the case of T.S. Thomas v. K.A. Mustafa (1981 Cr. L.J. 1892 S.K. Kader, J. of Kerala High Court has dealt with the protections provided u/s 197 Cr.P.C., 397 of the Kerala Municipalities Act and section 79 of the I.P.C. at page 1895 (para 11) and observed : "In order to invoke the protection under Sec. 397 of the Act and section 197 of the Code, the offences alleged to have been committed must be so connected with the official act as to form part of the same transaction. The act complained of must be an offence. The act complained of must be an offence. What is dealt with by a public servant in good faith in execution of his official duties cannot be treated as an offence in view of Sec. 79 of the I.P.C. Making a practical and pragmatic approach to the question it cannot be forgotten that even honest officers may commit mistakes or wrongs while diligently discharging their official duties, thereby exposing themselves to prosecution. The principle underlying these provisions is primarily and essentially to protect such public servants and this protection has been extended to the acts of the public servant where he purports to act in the discharge of his duties to meet the administrative exigencies of the situation even though there was a deliberate departure from the normal course of official duties. (See H.G. Vartak v. State. 71 Bom. LR 758 = (1970 Cr. L.J. 1427) and Public Prosecutor of A.P. v. Polurowthu Ramana Dara (1963 1 Mys LJ 306). It is not the duty which has to be examined so much as the act, because an official act may be performed both in the discharge of the official duty as well as in dereliction of it. (See Shreekantiah Ramayya Munipalli v. State of Bombay: AIR 1955 SC 287 = (1955 Cri LJ 857) and Behari Lal v Moola = 1962 (I) Cri LJ 192) (Raj). The acts complained of must have a discharge of official duties and the claim of the discharge of the official duty should not be fanciful or pretended. But if the acts complained of are directly concerned with the official duty although the acts done may be in excess of the discharge of such duty, the claim for protection under these sections cannot be denied, (See Shiv Dutt Bali v. Manoharlal Saini : (1971) 73 Punj LR 236). So, also whether the act is done rightly or wrongly, correctly or incorrectly, if the act is done in the discharge of official duties, it would certainly be covered by these provisions in the section (See Madan Lal Lamba v. Inderjit Mehta : 71 Punj LR 1065) : (1970 Cri LJ 726). There must be something in the nature of the act complained of that attaches it to the official character of the officer doing it. There must be something in the nature of the act complained of that attaches it to the official character of the officer doing it. There must be a perceptible connection between the Act and the discharge of the official duty of the public servant even if it may be a case of the public servant wrongfully and negligently discharging his official duty or a case of exceeding his authority. The phrase "purporting to act." indicates that the strict scope and authority of public office might be exceeded but it should not be 50 far exceeded as to be without the colour of the office exercised in good faith. If the act complained of though net itself sanctioned by statute or enjoined by his official duty is, however, so intimately and integrally connected with his official or statutory duty that it can be said to have been done in furtherance of the duty prescribed by statute or for achieving the object enjoined by his duty the section protects him. (See Jaferuklah Jaferi v. Abdul Aziz : AIR 1970 Andh Pra 13) : (1970 Cri LJ 26). Similarly a public servant can also claim protection in a case where the act complained of is the very act which he is expected or authorised to do under the statute or the law but which becomes reprehensible as it is alleged to be done fraudulently or dishonestly. That is, where the machinery of the Act is employed to do an authorised act in an unauthorised manner or for an unauthodsed purpose the section protects him. (See the same decision) and also Abdulla Mohammad v. N. Parmeshwarau Nair: 1963 Ker LT 942." 51. Thus from all these pronouncements it appears that the effect of this provision of sanction is to protect a public servant from frivolous, vexatious, mysterious and malicious prosecution when the public servant discharges his duty honestly and sincerely in accordance with law. A Government servant should perform his duty effectively and unhampered by any other consideration. He should have no fear of harassment. He must have a protection umbrella against prosecution and accusations from those who are adversely and legally affected by the due performance of his duty as a public servant. When a public servant acts legally within the bounds of his duty, he should be free from any harassment, coercion and malafide of anyone. He should have no fear of harassment. He must have a protection umbrella against prosecution and accusations from those who are adversely and legally affected by the due performance of his duty as a public servant. When a public servant acts legally within the bounds of his duty, he should be free from any harassment, coercion and malafide of anyone. His acts and performance should be diligent, bonafide and in good faith and should have nexus to the duty under law. He may get protection if his acts is in discharge of his duties to meet the exigencies of the situation going to the extent of deliberate departure from the normal course of official duties or dereliction of the duties or in excess of duty, but all this should have the element of good faith. This protection should be real and not formal. Further the exercise of power should be real, solemn and sacrosanct and not merely an idle formality in contravention of justice, equity fair play, law and statute. 52. Besides these statutory provisions the Governments whether State or Central have already tried to protect their servants in the discharge of their duties, through notifications, circulars and regulations. Reference has already been made to Annexure-29 being the Government circular by Government of Bihar, Home Department's circular No. 1075 dated 17.11.86 to the effect that if any criminal case is to be filed against a government officer or he has to be arrested then for appropriate departmental proceedings a recommendation is to be sent to the concerned government department and the approval of the administrative department must be obtained before taking any such step. In the case of State of Andhra Pradesh v. N. Venugopal and Ors. ( AIR 1964 SC 33 ) it was observed at page 39 in para 23: "It appears to us that this standing order is nothing more than administrative instructions by the Government of Madras and not has the force of law." (Para 23). "We are further of the opinion that in any case the requirement of this order was merely directory and not mandatory. Noncompliance with the provisions of this order therefore, does not make the investigation of the case illegal". (para 24). "We are further of the opinion that in any case the requirement of this order was merely directory and not mandatory. Noncompliance with the provisions of this order therefore, does not make the investigation of the case illegal". (para 24). "It is also to be mentioned that no objection that the investigation has been conducted in violation of the standing orders appears to have been taken at any stage earlier than the trial in the sessions court. It would be proper to hold therefore on the authority of Rishibud's case, H. N. Rishibud v. State of Delhi 1955-1 SCR 1150: ( AIR 1955 SC 196 ) that even if the provision that the investigation had to be held and completed by a Magistrate as the force of law and was mandatory, the trial would not be rendered invalid unless it was shown that miscarriage of justice has been caused on account of illegal investigation. Learned counsel was not able to show how the accused were in any way prejudiced by reason of the fact that the investigation was completed by the Inspector of Police." In the case of P. Sirajuddin v. State of Madras (supra) it has been observed at page 526, para 17: " Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and an FIR is lodged against him there must be some suitable preliminary inquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupy the top position in a department, even if baseless would do incalculable harm not only to the officer in particular but to the department he belonged to in general. If the Government had set up a vigilance and anti-corruption department as was done in the State of Madras and the said department was entrusted with the inquiry of this kind, no exception can be taken to an inquiry by an officer of this department but any such inquiry must proceed in a fair and reasonable manner. If the Government had set up a vigilance and anti-corruption department as was done in the State of Madras and the said department was entrusted with the inquiry of this kind, no exception can be taken to an inquiry by an officer of this department but any such inquiry must proceed in a fair and reasonable manner. The inquiring officer must not act under any pre-conceived idea of guilt of the person whose conduct was being inquired into or pursue the inquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. In ordinary departmental proceedings against a government servant charged with delinquency the normal practice before the issue of a charge-sheet is for some one in authority to take down statements of a person involved in the matter and to examine, documents which have a bearing on the issue involved. It is only thereafter that a charge-sheet is submitted and full scale inquiry is launched. When the inquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officers, and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officers. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a FIR". In the case of Amarendra Kumar Singh v. State of Bihar (1989 B.L.J. 600 : 1989 PLJR 122 ) being a case on the basis of a private complaint against a Dy. In the case of Amarendra Kumar Singh v. State of Bihar (1989 B.L.J. 600 : 1989 PLJR 122 ) being a case on the basis of a private complaint against a Dy. S. P. who had raised the plea regarding the protection u/s 197, S. C. Mukberjee, J. of this court while disposing of an application u/s 482 against the order rejecting the plea of protection u/s 197 by the Magistrate, observed at page 612 in para 7 : "Therefore, where a public servant has asserted that the offence allegedly committed by him is related in some manner with the discharge of the official duty and there is a reasonable connection, between the act and discharge of the official duty the court where such a plea was raised should hold an inquiry for this limited purpose.... ...If the circumstances as indicated as indicated above where such a claim has been made by an accused public servant and there appears prima facie controversial facts in that regard, the court, while dealing with the same should hold an inquiry for this limited purpose by affording an opportunity to the public servant concerned to place the relevant materials, for its consideration instead of directing him to face trial simply on the allegation made in the petition of complaint. If in an appropriate case without holding an inquiry the accused public servant is directed to face the trial the very purpose of protection available to him u/s 197 Cr. P. C. will be meaningless. This is all the more necessary in a case of present nature, which is based on a complaint as in a police report case there is a scope for investigation, but no such scope is available in a case instituted on a private complaint." 53. Thus it will appear that the government instructions, notifications and directions are only administrative directions. They are directory and not mandatory. But if the preliminary enquiry about the alleged conduct of a public servant is made departmentally, then the official concerned may have an opportunity to place before the department concerned the facts, which may lead to something concrete for or against the official so as to eliminate the possibility of frivolous and misconceived proceedings in courts. But if the preliminary enquiry about the alleged conduct of a public servant is made departmentally, then the official concerned may have an opportunity to place before the department concerned the facts, which may lead to something concrete for or against the official so as to eliminate the possibility of frivolous and misconceived proceedings in courts. Though these departmental proceedings and enquiries cannot be made a condition precedent to launching a prosecution but definitely they will prevent any miscarriage of justice to a great extent. It may save an officer from vexatious, frivolous and malicious investigation and also prosecution and the department concerned may not lose the services of an honest and dutiful officer. It may be more needed in the case of highly placed officers whose official acts are misconstrued and suspected by adversely affected persons more so when full facts and circumstances do not come in light for some reason or other. There is a presumption that public officials discharge their duties honestly and in accordance with law, unless it is rebutted by showing that it was done with malicious intention, with evil design and unequal hands. If the enquiries lead to a result of prima facie appearance of the accusations, then the law of the land may take charge of him for being dealt with properly. 54. The grant of sanction under section 197 is the function of the appointing authority who may include the President of India or a Governor as the case may be. The pleasure of the President or the Governor is exercised by such officers on whom they confer or delegate power. The Governor/President need not look into the matter personally as the rules of business framed under the Constitution empower the officer concerned of the Government to deal with the matter in the name of the Governor/President. When such an officer certifies that the Governor/President has been pleased to pass the order it means that the Governor or President have actually been pleased to pass an order. The according of sanction is the executive action of the President/Governor and this executive function is performed by the officer under the rules of business in the name of the President. The according of sanction is the executive action of the President/Governor and this executive function is performed by the officer under the rules of business in the name of the President. This exercise of power is always presumed to be based on justice, fair play, impartiality, openness and fairness unless it is shown that this unguided, unfettered and unbridled exercise of power was arbitrary misguided and against the canons of justice and fair play. As this discretion is vested in the high ranking top officers the abuse of power is not to be easily and readily inferred unless there are solid ground; and cogent reasons. These officers exercise their power with full application of mind and consideration of al1 the facts and circumstances. In the case of Matajog Dubey v. S. C. Bhare ( AIR 1956 SC 44 ) it has been observed in para 15 : "It has to be borne in mind that the discretionary power is not necessarily a discriminatory power and that the abuse of power is not to be easily assumed where the discretion is vested in the government and not in a minor officer. In the case of Re. State of Kerala Education Bill ( AIR 1958 SC 956 ) it has been observed; We must bear in mind what has been laid down by this court in more decisions than one namely that the discretionary power is not discriminatory power and the abuse of power by the government will not be lightly assumed. In the case of Moti Ram Dekka v. General Manager, North East Frontier Railway, Maligaon, Pandu ( AIR 1964 SC 600 ) the Supreme Court further observed at page 644 in para 154. "Conferment of power has necessarily to be coupled with the duty to exercise it bonafide and for effectuating the purpose and policy underlying the rules which provide for the exercise 0 f the power". "Conferment of power has necessarily to be coupled with the duty to exercise it bonafide and for effectuating the purpose and policy underlying the rules which provide for the exercise 0 f the power". In the case of Chintalingam v. Government of India ( AIR 1971 SC 474 ) it was observed: "At any rate it has been pointed out in more than one decision of this court that when the power has to be exercised by one of the highest officers the fact that no appeal has been provided for is a matter of no moment." See K. L. Gupta v. Bombay Municipal Corporation 1968- 1 SCR 274 at p. 297-( AIR 1968 SC 303 at p. 316). It may also be remembered that emphasis was laid in Panna Lal Binjraj v. Union of India 1957 SCR 233 at page 257 = ( AIR 1957 SC 397 at page 408) on the power being vested not in any minor official but in top ranking authority. It was said that though the power was discretionary, but it was necessarily discriminatory and abuse of power could not be easily assumed. There was moreover a presumption that public officers would discharge their duties honestly and in accordance with the rules of law." In the case of V.C. Shukla v. The State through C.B.I. ( AIR 1980 SC 962 ) it has been observed at page 973 (para 13) : "In fact this court has held in a number of cases that where a power is vested in a very high authority the abuse of power is reduced to the minimum" In the other case of State (Delhi Admn.) v. V.C. Shukla and another ( AIR 1980 SC 1382 ) their Lordships considered the provisions of section 5 of the Prevention of Corruption Act and observed at page 1413 in para 81 : "For one thing, no unguided or uncanalised power has been conferred on the Central Government. A basic condition imposed on the Central Government is that there must be a proper application of mind regarding the existence of prima facie evidence of the commission of an offence. Secondly, the discretion has to be exercised in accordance with the guidelines contained in the preamble." Further in para 83 at page 1415 it was observed. A basic condition imposed on the Central Government is that there must be a proper application of mind regarding the existence of prima facie evidence of the commission of an offence. Secondly, the discretion has to be exercised in accordance with the guidelines contained in the preamble." Further in para 83 at page 1415 it was observed. "Further more, as the power is vested in a very high authority, it cannot be assumed that it is likely to be abused. On the other hand, where the power is conferred on such a high authority as the Central Government, the presumption will be that the power will be exercised in a bona fide manner and according to law." In this very decision their Lordships have been pleased to quote the observations in the American Jurisprudence, 2nd Volume at pages 626, 627 and 637. We will refer to the following portions thereof. "Public officers are created for the purpose of effectuating the end for which the Government has been instituted and which is the common good and not for the private honour or private interest of anyone man, family or class of men" Their Lordships have further referred to the observations by Ferris in his thesis on Extra Ordinary Legal Remedies defining public or political offices as under:" A public office is the right, authority and duty created and conferred by law by which an individual is vested with some portions of the sovereign functions of the Governor to be exercised by him for the benefit of the public, for the terms and by the tenure prescribed by law. It implies an application of a portion of the sovereign power. It is a trust created by public authority for a public purpose." Even in a case of exercise of power u/s 198-B Cr. P.C. for grant of sanction to prosecute for the offence of defamation, the Supreme Court in the case of Gour Chandar Rout and anr. v. The Public Prosecutor Cuttack ( AIR 1963 SC 1198 ) observed at page 1201 (para 3). P.C. for grant of sanction to prosecute for the offence of defamation, the Supreme Court in the case of Gour Chandar Rout and anr. v. The Public Prosecutor Cuttack ( AIR 1963 SC 1198 ) observed at page 1201 (para 3). "He points out that since a sanction has to be given by a Secretary it is the Secretary who has to apply his mind to all the relevant facts and come to a decision whether it is in public interest to lodge a complaint and if he finds that it is in the public interest that a complaint should be lodged then to accord sanction. The Secretary, as he rightly points does not merely perform a ministerial act in according the sanction.. … While it is no doubt true that it is the sanctioning authority which has to apply its mind to the facts of a case before according sanction and in performing the function the Secretary does not perform a ministerial act... ..." 55. Following these observations it can be said that the high ranking top executives of the State have been eat rusted with the duties which are in the public interest and for the common good and not for the private, honour or private interest of anyone man, family or class of men and further such public officers have been conferred by law the same portion of the sovereign functions of the State Government, which is to be exercised for the benefit of the public. Virtually they are exercising the sovereign power in the name of the Governor or President. It will not be out of place to refer to the case of Kehar Singh and another v. Union of India and Ors. (1989 SCC (Cr.) 86) where the question of exercise of power by the President has been dealt with by their Lordships at page 99 paras 15 & 16 : "The proceeding before the President is of an executive character, and when the petitioner files his petition it is for him to submit with it all the requisite information necessary for the disposal of the petition..... ......... ......... The manner of consideration of the petition lies within the discretion of the President, and it is for him to decide how best he can acquaint himself with all the information that is necessary for its proper and effective disposal" "It seems to us that there is sufficient indication in the terms of Art. 72 in the history of the power enshrined in that provision as well as the existing case law and specific guidelines need not be spelled out. Indeed it may not be possible to lay down any precise; clearly defined and sufficiently channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the constitutional scheme." (Para 16) So the grant of refusal of sanction is rather a judicial exercise of the executive power, and is more than a ministerial power. The sanctioning authority is always to keep in mind the evil which is sought to be eradicated by the grant of sanction and that evil is the exposure of the honest and dutiful officers to harassment of baseless frivolous and vexatious accusation. The grant of sanction is virtually a initial screening of the complaint or an FIR along with their supporting materials to find out material to protect a public servant from frivolous implication and its resultant proceedings. It is at that stage that the sanctioning authority tries to find out as to whether the charges levelled against an honest and dutiful officer are apparently false or exaggerated or there appears to be a prima fade case. This preliminary exploration of the commission of the offence may save an honest and dutiful officer from the ordeal of facing a malicious and frivolous prosecution. 56. A question arises as to what is discharge of duty. There are series of decisions on this aspect. This preliminary exploration of the commission of the offence may save an honest and dutiful officer from the ordeal of facing a malicious and frivolous prosecution. 56. A question arises as to what is discharge of duty. There are series of decisions on this aspect. In the case of H.H.B. Gill v. The King, AIR 1984 PC 128 while quoting observations of Lord Simond in Hari Ram Singh's case (AIR 1949 FC 43) that a public servant can only be said to act or to purport to act in the discharge of his official duty if his act is such as to lie within the scope of his official duty, it was held that the acts with which the accused was charged could not be justified as done by virtue of his office and so no sanction was necessary." This view was reiterated in the case of Albert West Meade v. The King, AIR 1948 PC 156; Phanindra Chandra v. The King, AIR 1949 PC II7 and R.W. Mathams v. State of West Bengal, AIR 1954 SC 455 . In the case of Amrik Singh v. State of Pepsu, AIR 1955 SC 309 , the Supreme Court after referring to the above mentioned decision of the Privy Council as well as the Supreme Court observed at page 312 para 8 : "The result of the authorities may thus be summed up : it is not every offence committed by a public servant that requires sanction for prosecution under Section 197 (1), Criminal P.C., nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the prosecution." In the case of Matajog Dubey v. H C. Bhari, AIR 1956 SC 44 at page 49, para 19, the Supreme Court after referring to the various decisions of the Privy Council and the Supreme Court observed at page 49 para 19: "The result of the foregoing discussion is this: There must be a reasonable connection between the act and the discharge of official duty : the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty. "In the case of K. Satwant Singh v. The State of Punjab ( AIR 1960 SC 266 ) at 211, para 16 it was observed by the Supreme Court: "It appears to us to be clear that some offences cannot by their very nature be regarded as having been committed by public servants while acting or purporting to act in the discharge of their official duty." ...... ... ... "The act of cheating or abetment thereof has no reasonable connection with the discharge of official duty. ... ... "The act of cheating or abetment thereof has no reasonable connection with the discharge of official duty. The act must bear such relation to the duty that the public servant could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty." In the case of Baijnath v. State of Madhya Pradesh, AIR 1966 SC 220 the Supreme Court following the earlier decisions of the Privy Council, Federal Court as well as Supreme Court observed at page 227 paras 16 and 17 : "It is not every offence committed by a public servant that requires sanction for prosecution under section 197 (1) of the Criminal Procedure Code; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that if questioned it could be claimed to have been done by virtue of the office, then sanction would be necessary. It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted. An offence may be entirely unconnected with the official duty as such or it may be committed within the scope of the official duty. Where it is unconnected with the official duty there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable." In the case of Bhagwan Prasad Srivastava v. N.P. Mishra, ( AIR 1970 SC 1661 ) the Supreme Court while considering the cases of Matajog, Amrik Singh and Haij Nath, (supra) observed at page 1664 para 5: "The question whether a particular act is done by a public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case." In the case of Harihar Prasad v. The State of Bihar, (1972 Cr. L.J. 707 : (1972) 3 SCC 89 , the Supreme Court observed at page 725 (Cr. L.J. 707 : (1972) 3 SCC 89 , the Supreme Court observed at page 725 (Cr. L.J.) Para 74: "To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar." In the case of Pokhraj v. State of Rajasthan and another, AIR 1973 SC 1591) at page 2592 para 2 the Supreme Court observed: "The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done to the execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of his duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though an excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the "capacity in which the act is performed", "cloak of office", and "professed exercise of office" may not al ways be appropriate to describe or delimit the scope of the section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty." In the case of S.B. Saha and others v. M.S. Kochar, (AIR 1979 SC 1941) after referring to the various (above mentioned) decisions Hori Ram Singh, Om Prakash Gupta, Baijnath, Harihar Prasad, the Supreme Court observed in paras 19 and 29 as follows: "In such, the sine qua non for the applicability of this section is that the offence charged, be it one of commission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him." "In the light of all that has been said above, we are of the opinion that on the facts of the present case, sanction of the appropriate Government was not necessary for the prosecution of the appellants for an offence under Sections 400/120-B, Indian Penal Code, because the alleged act of criminal misappropriation complained of was not committed by them while they were acting or purporting to act in the discharge of their official duty, the commission of the offence having no direct connection or inseparable link with their duties as public servants. But the official status of the appellants furnished then with an opportunity or occasion to commit the alleged criminal act." In the case of Bakshish Singh Brar v. Smt. Gurmej Kaur and another, ( AIR 1988 SC 257 ) the Supreme Court while referring to the decision in the case of Pukhraj v. State of Rajasthan, (supra) observed at page 260, para 6 : "It is necessary to protect the public servants in the discharge of their duties. They must be made immune from being harassed in criminal proceeding and prosecution, that is the rationale behind Section 196 and Section 197 Cr. They must be made immune from being harassed in criminal proceeding and prosecution, that is the rationale behind Section 196 and Section 197 Cr. P.C., But it is equally important to emphasise the rights of the citizens should be protected and no excesses should be permitted......... In the facts and circumstances of each case protection of public officers and public servants functioning in discharge of official duties and protection of private citizens have to be balanced by finding out as to what extent and how far is a public servant working in discharge of his duties and whether the public servant has exceeded his limit." Thus from all this it is clear that at the time of grant of sanction the sanctioning authority is to see whether the alleged offence has actually occurred in the performance of duty. An official act can be performed in the discharge of official duty as well as with dereliction thereof. Sometimes duty is performed in excess of the need and requirement of situation or under a mistaken belief as to the existence of the duty, or in good faith and bona fide. So the sanctioning authority is to see from the angle as to whether there was proper discharge of duty or not. These examinations are a preliminary and initial scrutiny before the launching of prosecution and cognizance being taken by the court. If the act complained of is found to be connected with the official duty and definitely an offence is not connected with the official duty nor is it expected to be committed in the discharge of duty, then in such a situation sanction will be necessary. So there should be a reasonable connection between the act complained of and the discharge of official duty. So the nature and quality of the alleged act is essential to be weighed-meticulously at this preliminary stage by the sanctioning authority on the basis of the material collected so far. If the government servant is really found entitled to the umbrella of protection against prosecution then sanction will be refused. But when he is not entitled then sanction for prosecution will not be needed. 57. If the government servant is really found entitled to the umbrella of protection against prosecution then sanction will be refused. But when he is not entitled then sanction for prosecution will not be needed. 57. Though no particular procedure has been prescribed for this exercise of power and there is no prescribed form for its expression yet from looking to the order granting sanction or refusing sanction it should appear that it is on the basis of application of mind of the facts and circumstances as a whole. There should be no blind fishing expedition to understand as to whether sanction has been given. Where the law in its expressed terms does not require the authority according/refusing sanction, to record reasons for his decisions stilt the court in its judicial scrutiny should have material to be convinced that the order is based upon application of mind. There should be an adequate disclosure of the material justifying the inference drawn by the sanctioning authority specially the order according sanction or refusal, as it has far reaching consequences and specially when personal hearing is not provided to the alleged guilty and erring officer. Virtually there remains only the one sided version of the prosecuting agency and the officer concerned has no opportunity at that stage to rebut the version placed before the sanctioning authority. So it becomes a greater and essential imperative for the authority concerned to fulfil the object of sanction. It is not to be treated as a formality and it should not be accorded or refused by mere asking or for the sake of asking. If there is refusal to accord sanction on no valid and cogent grounds then it is a denial of justice to the society at large and particularly the people whose immediate interest has been jeopardised by the officer concerned. And if the sanction has been accorded on such similar grounds then it causes nothing but a denial of justice and fair trial, as the officer concerned is put to incalculable and irreparable loss which becomes difficult to be compensated at the last stage when the accusation or prosecution is found to be false and malicious. Therefore, the satisfaction of the authority concerned should not be whimsical or capricious. It should be in the administration of justice and fair trial. 58. Therefore, the satisfaction of the authority concerned should not be whimsical or capricious. It should be in the administration of justice and fair trial. 58. In the present case as seen earlier many documents and materials have been brought in the shape of annexures whose existence, genuineness and authenticity has been virtually admitted by not denying their existence and even truth. If these documents had been before the sanctioning authority along with the FIR and the result of the investigation by the I.O. then the sanctioning authority while making preliminary screening of the whole matter might have come to be a different conclusion, may be even refusal to accord sanction. The prosecuting agency after the filing of the charge-sheet had been pleading before the court during the course of argument for taking cognizance the no sanction was necessary. But suddenly sanction had been filed which act leads to an inference that this sanction has been obtained and that the sanction has been given by the authority concerned at the asking of the prosecuting agency. Looking to the order of sanction itself it appears that it is a composite sanction in respect of the offence under the various sections of the Indian Penal Code as provided u/s 197 Cr.P.C. and; also as provided u/s 15-A of the E. C. Act. It further gives out the names of the persons to be prosecution and the provisions of the statute alleged to have been contravened. It simply says that the State Govt. was satisfied looking to the Gandhi Maidan P. S. Case No. 177/88 that the petitioner P. P. Sharma has committed the offence under the various sections of the Indian Penal Code and also the case under E. C. Act is made out so the sanction is accorded under the orders of the Governor. It does not appear from the sanction as to what were the facts on account of which the satisfaction was arrived at. It also does not specify the person by whom, and the manner of commission of the offence or offences for which the petitioner should be tried and before which court. It does not appear from the sanction as to what were the facts on account of which the satisfaction was arrived at. It also does not specify the person by whom, and the manner of commission of the offence or offences for which the petitioner should be tried and before which court. In the case of P. C. Joshi v State of U. P. ( AIR 1961 SC 387 ) it has been observed at para 4 :" Mere production of document which sets out the names of the person to be prosecuted and the provisions of the statute alleged to be contravened and purporting to be under signature of officer competent to grant the sanction where such sanction is a condition precedent to the exercise of jurisdiction does not invest the court with jurisdiction to try the offence. If the facts which constitute a charge do not appear on the face of sanction, it must be established by extraneous evidence that these facts were placed before the authority comptent to grant sanction and that the authority applied his mind to those facts before granting sanction." In the case of Ram Kumar v. State of Haryana, ( AIR 1987 SC 735 ) the Supreme court while distinguishing the sanctions accorded u/ss. 132 and 197 of the Code observed in para 3 : " In regard to sanction u/s 197 the question to be considered is which particular court should be empowered to try the case. So in granting sanction u/s 197 the sanctioning authority is to consider whether or not to exercise the power u/s 197(4) to specify the person by whom, the manner in which and the offence or offence, for which the concerned public servant should be tried and the court before whom the trial is to be held." 59. It is further to be seen that this sanction is vide letter No. 1424 from Bihar Government in the Administrative and Personnel Department sent by S. P. Seth, Special Secretary of the Government to R. K. Singh, Administrator, BISCOMAUN, Patna, on the subject of investigation on the basis of the report lodged against P. P. Sharma, I.A.S., the then managing Director of BISCOMAUN. It also appears that the sanction letter dated 31.1.89 signed by S. P. Seth, Special Secretary, Administrative and Personnel Department was sent by the said Secretary on that very day vide cover letter dated 31.1.89 signed by the said Special Secretary and addressed to R. K. Singh, Administrator, BISCOMAUN. It was not sent to the I. O. of the case who was also responsible officer of the Government, in the C.I.D. department. It was later on filed in the court at the last stage when the arguments for taking cognizance had been made. All this shows that the informant R. K. Singh was interested in obtaining the sanction and the sanction has been accorded as a formality to fill up the lacuna of prosecution as without sanction and to confer jurisdiction to the courts somehow to pass the order taking cognizance. All this shows that it was not a bona fide affair, rather it is a mala fide on the part of the informant and that sanction has not been accorded after application of mind in accordance with law. As such the grant of sanction is not a sanction in the eye of law and the sanction as a whole is vitiated by malafide on the part of the informant and also the Special Secretary, according sanction in the name of the Governor. 60. Learned counsel for the petitioner has argued that no case for the breach of the provisions of the B.C. Act is made out and so it is liable to be quashed. It was also said that the allegations of violation of the E. C. Act has been made purposely so as to put the petitioners to prosecution in two different courts which is nothing but harassment, victimization and malafide exercise of power. As to these contentions, looking to the FIR (Annexure-28) it appears that the provisions of the Fertiliser Control Order 1957 were said to have been violated by supplying, spurious and substandard fertilisers. But the I. O. has submitted two charge-sheets i.e. charge-sheet no. 102/88 (Annexure-40) under section 7 of the E. C. Act for violation of section 8 of the E. C. Act and the provisions contained in sections 19, 23 and 29 of the Fertiliser Control Order 1985. The earlier Order of 1957 has been repealed and further the alleged offences are said to have been committed in November 1986. 102/88 (Annexure-40) under section 7 of the E. C. Act for violation of section 8 of the E. C. Act and the provisions contained in sections 19, 23 and 29 of the Fertiliser Control Order 1985. The earlier Order of 1957 has been repealed and further the alleged offences are said to have been committed in November 1986. Further the sanction order (Annexme-42) as regard u/s 15- A of the E. C. Act, also mentions the same provisions of the order as mentioned in the charge-sheet no. 102/88. The Fertiliser Control Order of 1957 has been repealed by the Fertiliser Control Order of 1985. Section 19 deals with restrict ion on manufacture, sale and distribution of fertiliser, section 23 about the disposal of non-standard fertiliser and section 29 is about providing for the analysis of the fertiliser 1amples, drawn by the inspector in accordance with the instructions contained in Schedule II of the Central Fertiliser Quality Control and analysis to made in any laboratory notified by the State Govt. Section 8 of the E. C. Act deals with attempts and abetment by any person to contravene the provisions contained in the Orders Section 11 of the E. C. Act deals with the taking of cognizance of the offence by the court and section 12-AA (1) (e) of the Act mentions about the trial by Special courts taking cognizance of the offence without the accused being committed to it for trial upon a perusal of police report of the facts constituting an offence under this Act or upon the complaint made by an officer of the Central Govt. or a State Govt. authorised in this behalf by the Government concerned or any person aggrieved or any recognised consumer's association. Section 15-A of the Act says that no cognizance of the offence is to be taken against a public servant in respect of any offence alleged to have been committed while acting or purporting to act in the discharge of his duty in pursuance of an order made u/s 3 of the Act unless sanction of the Central Govt / State Govt., as the case may be, has been obtained. 61. In this case a report has been lodged by R.K. Singh, an I.A.S. officer who was Administrator of the BISCOMAUN on 1.9.88. 61. In this case a report has been lodged by R.K. Singh, an I.A.S. officer who was Administrator of the BISCOMAUN on 1.9.88. Though R.K. Singh has been on deputation to BISCOMAUN but the BISCOMAUN being a federation of the Cooperative Societies under the control of the State Govt., he was a public servant. He lodged the FIR which formed the basis of an investigation by the I.O. who in turn submitted a charge-sheet to the court. Thus in view of the provisions contained in sections 11 and 12-AA(1) (e) of the Act the Special court can take cognizance on the basis of the charge-sheet, though till now cognizance has not been taken. 62. As regards the contention that the violations of the various provisions contained u/ss. 19, 23 & 29 of the said Order of 1985 and section 8 of the B.C. Act have not been made out, the facts in detail have been enumerated above but for the sake of reference at the cost of repetition it can briefly be said that the firm had certificate of registration No. 814 dated 8.8.85 (Annexure-4) issued by the then Director of Agriculture, Bihar, up to 31.3.85 whereafter by subsequent letter dated 29.7.86 extended up to 31.3.89 for the fertiliser 15:15:7½ and 18:18:10. It was specifically said that the samples of the fertiliser shall be drawn by the notified fertiliser inspectors and each selling centre i.e. the depots of the BISCOMAUN shall be registered separately as licences. The firm was also granted specific permission to import the permitted quantity of fertilisers in Bihar. Further the State of Bihar vide notification No. 10711 dated 14.7.84 (Annexure-8) had fix ed the price of 5 brands of granulated fertiliser and the price of 15:15:7½ was fixed at Rs. 2,559/- per M.T. plus taxes extra. Supplies were made by the firm to each depot of the BISCOMAUN. Fertiliser inspectors took samples of 11 depots of the BISCOMAUN and sent them to Central Fertiliser Control Laboratory, Faridabad. Three of them were found to be of standard quality and the remaining eight were found to be non-standard. Among those non-standard, four samples were from another firm namely Rashtriya Chemical and Fertiliser Ltd. and some were from Harbahar manufactured by BISCOMAUN in its factories at Jasidih and Tilrath. Only three samples of the firm were found to be non-standard. Three of them were found to be of standard quality and the remaining eight were found to be non-standard. Among those non-standard, four samples were from another firm namely Rashtriya Chemical and Fertiliser Ltd. and some were from Harbahar manufactured by BISCOMAUN in its factories at Jasidih and Tilrath. Only three samples of the firm were found to be non-standard. During the tenure of P.P. Sharma as Managing Director when the fertiliser at Arwal was found to be sub-standard the same was taken back by the firm at its own costs and the price thereof was deducted from the payments to be made to the firm. These facts have remained unrebutted and appear to have been made out from the material brought on record. 63. Thus prima facie it appears that the firm was registered one and it has sole monopoly for the supply of the fertiliser NPK 15:15:7½ which it did supply as per orders on behalf of the BISCOMAUN. Out of 550 depots of the BISCOMAUN, 172 had been granted licence so they were individual licencees to receive the fertilisers, which they received. Samples from some of the depots of BISCOMAUN had been taken by the fertiliser inspectors and some of the samples were found to be of standard and some non-standard quality. Besides the fertilisers of Rajasthan firm, fertilisers supplied by other firms were also found to be sub-standard. The reprocessing was done after following the procedure in respect of the fertilisers not only of the Rajasthan firm but also other factories and agencies which were found to be profitable to the BISCOMAUN. In such a situation how the petitioners are liable for the violations of the said provisions of the Fertiliser Control Order. 64. When the depots of the BISCOMAUN are individual licences then those individual depots become liable for the offences complained of and not only the BISCOMAUN. The BISCOMAUN as a federation has settled in good faith in accordance with the procedure the import of fertilisers into the State of Bihar. They have in this way become purchaser and consumer as the BISCOMAUN was not a licencee. But if the BISCOMAUN was a licencee then it ought to have been prosecuted besides the officers concerned directly in the purchase definitely the BISCOMAUN becomes juristic person could come in the clutches of section 10 of the B. C. Act. They have in this way become purchaser and consumer as the BISCOMAUN was not a licencee. But if the BISCOMAUN was a licencee then it ought to have been prosecuted besides the officers concerned directly in the purchase definitely the BISCOMAUN becomes juristic person could come in the clutches of section 10 of the B. C. Act. It cannot be denied that the person or officers of the company can be separately prosecuted even if the company has not been proceeded against and even if the violations of the provisions of section 3 of the Act have been established against the company. But here the individual licencees are the various depots of the BISCOMAUN which should have been brought to book if any offence was made out. Any person trading in violation of the Fertiliser Control Order shall be liable for prosecution be it a licencee or any servant, agent or otherwise on behalf of the licencee. It may also include any person without a licence. These provisions definitely will not apply to a purchaser or consumer. Those individual licencees are liable who have distributed the same among the farmers. It may also be mentioned that the fertilisers have been received by the various depots in sealed bags and so only the firm supplying the bags could have been able and not any retailer or whole-seller, which may include even the various depots as licencees, as also the BISCOMAUN and the petitioners. 65. Learned counsel for the petitioners has urged that mens rea is one of the important ingredients for constituting an offence under the E.C. Act which is wanting for the petitioner from the unrebutted material brought on the record. As to this contention during the period when P.P. Sharma had been there and till he handed over charge to his successor Sanjay Srivastava, there was complaint only in respect of Arwal depot, for which the company on the asking by the petitioners took back the entire stock. Later on when other stocks of various depots were found to be non-standard then the Advisor himself gave out to the firm about 8 depots. Later on when other stocks of various depots were found to be non-standard then the Advisor himself gave out to the firm about 8 depots. Whatever stock was left it was dealt with and disposed of by the informant himself for the next three months even after lodging the FIR, and further whatever was left it was found to be fit for being used as raw material for manufacturing of Harbahar which ultimately caused gain to the tune of Rs. 16 lacs and odd to BISCOMAUN. Whatever evidence has been collected by the I.O. during the investigation does not show anything to establish any monetary benefit to the petitioners. The allegations in the FIR as well as the evidence is that the actions of the petitioners were to cause benefit to the firm and to cause loss to the BISCOMAUN and the farmers. As has been found earlier the firm itself has taken back the non-standard material at its own costs and the price of the returned fertilisers has been adjusted towards the payment to the firm. Not only that, the firm had been bearing the costs of transportation and cost of reprocessing also. So this may be a loss to the firm. It also appears that the firm was to bear not only these expenses but was not to get money even more than 10% under the contract, but it got about 20% less as out of 65 lacs and odd it was paid only 53 and odd lacs. So far as the BISCOMAUN is concerned it had not to suffer any loss for the reason that out of 2900 M.T. only 2000 M.T. were left and the rest had been taken back by the firm. Further those 2000 M.T. had been utilised by the BISCOMAUN in the reprocessing and making its own product as Harbahar, which ultimately brought a net gain to the BISCOMAUN. 66. A recent decision of the Supreme Court in the case of State of M. P. v. Narain Singh and Ors and Shamsher Singh and another ( AIR 1989 SC 1 789) in a case arising out of the contravention of the provisions of the Fertiliser (Movement Control) Order, 1973 under the E. C. Act their Lordships have dealt with this aspect of mens rea. Their Lordships referred to a decision in Swastic Oil Industries v. State (Special Criminal Application) (1978) 19 Gujrat Law Reporter 1117 wherein the Collector had ordered for confiscation of 100 tins of ground nut oil out of 397 tins under section 6 (1) of the E. C. Act. The authority had held that Clause (XI) (ii) of Gujrat Groundnut Dealers licensing Order 1966 was said to be contravened but it was not deliberate as it arose out of a mere bonafide misconception regarding the true content of clause II of the Licensing Order and so 25 tins confiscation was ordered. A petition under Art. 227 of the Constitution was preferred in the High Court where referring to section 7 of the Act as it originally stood and the interpretation of section 7 in Nathulal v. State of M. P. ( AIR 1966 SC 43 ) wherein it was held that all offence u/s 7 of the Act would be committed only if a person intentionally contravenes any order made under section 3 of the Act as mens rea was an essential ingredient of criminal offence referred to in section 7. The High Court then referred to the changes brought about by the legislature to section 7 after the decision in Nathulal's case ultimately by Ordinance No.6 of 1967 and then Act No. 36 of 1967 whereby the words "not only, intentionally or otherwise" were added between the word "contravenes" and the words and figure "any order made under section 3" held: (as page 1792 Para 7) "The plain reading of the section after its amendment made it clear that by the amendment, the legislature intended to impose strict liability for contravention of any order made under section 3 of the Act. In other words, by the use of the express word the element of mens rea as an essential condition of the offence was excluded so that every contravention whether intentional or otherwise was made an offence u/s 7 of the Act. In other words, by the use of the express word the element of mens rea as an essential condition of the offence was excluded so that every contravention whether intentional or otherwise was made an offence u/s 7 of the Act. Thus by introducing these words in section 7 by the aforesaid statutory amendment, the Legislature made its intention explicit and nullified the effect of the Supreme Court dicta in Nathulal's case The High Court late noticed the amending Act No. 30 of 1974 whereby the words introduced by the amending Act No. 36 of 1967 were deleted and the material part of section 7 (1) was restored to its original frame and the new provision in section 10 of the Act was added as section 10 (c) according to which the court shall presume the existence of a culpable mental state on the part of the accused but it shall be a defence for the accused to prove the effect that he had no such mental state with respect to the Act discharged as an offence in the prosecution. In the explanation "culpable mental state" was said to include intention, motive, knowledge or a fact and the belief or reason to believe a fact. Further the degree of the proof expected to rebut the presumption as mentioned in sub-section (2) of 10 (c) is that a fact will be said to be proved only if it exists beyond reasonable doubt and it will not be sufficient to prove its existence by preponderance of probability. Thus the burden of proof lies heavily on the accused to rebut the statutory presumption and the degree of proof expected that is required for the proof of a fact by the prosecution. There can, therefore, be no doubt that the aforesaid legislative changes have reversed the thrust of the decision of the Supreme Court in Vithulal's case and the same no longer holds the field'. Their Lordships of the Supreme Court after referring to the above mentioned consideration by the High Court (given out by us in gist) observed at page 1793 in paras 10 and 11. Their Lordships of the Supreme Court after referring to the above mentioned consideration by the High Court (given out by us in gist) observed at page 1793 in paras 10 and 11. : "Reverting back to S. 7 of the Act as amended by Act 36 of 1967, it is manifestly seen that the crucial words "whether knowingly, intentionally or otherwise" were inserted in S. 7 in order to prevent persons committing offences under the Act escaping punishment on the plea that the offences were not committed deliberately. The amendment was brought about in 1967 in order to achieve the avowed purpose and object of the legislation. To the same end, a further amendment came to be made in 1974, with which we are not now directly concerned but reference to which we have made in order to show the scheme of the Act and the amplitude of S. 7 at different stages. We are in full agreement with the enunciation of law as regards S. 7 of the Act in Swastik Oil Industries, (1978 (19) Guj. LR 1117) (supra). We therefore hold that the Trial Magistrate and the High Court were in error in taking the view that the respondents in each of the appeals were not liable for conviction for contravention of the F.M.C. Order read with Ss. 3 and 7 of the E.C. Act since the prosecution had failed to prove mens rea on their part in transporting fertiliser bags from Madhya Pradesh to Maharashtra." 67. So it would have been a matter of defence for the accused at the trial to show that they had no such mental state with regard to the act discharged as an offence for the prosecution and that they had been performing their official duties which may in these circumstances cannot become even a dereliction of their duties. But definitely at this stage it can be said on the basis of these materials that it does not amount to the commission of any offence and so no prima facie case can be said to have been made out. 68. We are always conscious of the legal position and the various pronouncements of the courts in India that disputed questions of facts cannot be decided on the basis of affidavits. 68. We are always conscious of the legal position and the various pronouncements of the courts in India that disputed questions of facts cannot be decided on the basis of affidavits. But when some documents have been brought on the record which are official records, which were in possession of the BISCOMAUN and so in the possession of the informant himself and further when in the replies neither the informant nor the I.O. nor any officer of the State Government has challenged the correctness of those documentary material so they are at present not disputed, and when it appears from the argument and the notes given by the learned counsel for the opposite party that Annexures 1, 2, 9, 10, 12 and 13 have been considered by the I.O. and they formed part of the records of the investigation except Annexure-1 which was seized during the investigation and formed part of the criminal proceeding. Annexures-3, 4, 5, 6, 7, 11, 15, 16, 17, 18, 19, 20, 20/1, 22, 22/1, 24, 25, 26, and 39 which have been referred to earlier and dealt with, do not appear to have been considered by the I.O. nor any reference about these have been made in the arguments by the learned counsel for the opposite party which apparently have been not considered and not disputed and when those documents themselves demonstrate that no prima facie offence is made out on the face value of those materials, then the criminal prosecution should not be allowed to continue and so it should be quashed. And as said by their Lordships of the Supreme Court in the case of West Bengal v. Swapan Kumar (supra) at page 971 in para 64: "Once an offence is disclosed, an investigation into the offence must necessarily follow in the interests of justice. And as said by their Lordships of the Supreme Court in the case of West Bengal v. Swapan Kumar (supra) at page 971 in para 64: "Once an offence is disclosed, an investigation into the offence must necessarily follow in the interests of justice. If, however, no offence is disclosed, an investigation cannot be permitted, as any investigation, in the absence of any offence being disclosed, will result in unnecessary harassment to a party, whose liberty and property may be put to jeopardy for nothing." Further the observations of their Lordships in the case of Madhavrao Jiwaji Rao Scindia and another v. Sambhajirao Chandrojiro Angre and others (supra) at page 711 in para 7 can be referred to which are as follows: "It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage." Therefore, following the observations made in the case of S.N. Sharma v. Bipin Kumar Tiwray (supra) "that in appropriate cases the aggrieved person can always seek remedy by invoking powers of the High Court under Article 226 of the Constitution under which if the High Court could be convinced that the power of investigation has been exercised by a police officer malafide, the High Court can always issue a writ of mandamus restraining the Police officer from misusing his legal power." We have purposely again reproduced these observations to conclude that when this investigation has been completed and from the very beginning it appears that no case has been disclosed against the petitioners then it is nothing but a harassment to the petitioners and their liberty is jeopardised. And further when this prosecution appears to have been launched malafide, as seen above, then this process of investigation and thereafter submission of charge-sheets has been utilised by the informant and the I.O. for some oblique purpose. And further when this prosecution appears to have been launched malafide, as seen above, then this process of investigation and thereafter submission of charge-sheets has been utilised by the informant and the I.O. for some oblique purpose. It also appears at this moment that the chances of ultimate conviction of the petitioners are bleak and no useful purpose will be served. Not only the lodging of the FIR and the investigation exposes the mala fide of the informant and the investigating agency but even the obtaining of the sanction shows that it was obtained at the last stage to fill up the lacuna of the prosecution. The court was hearing the matter on several days without any sanction order. But on 31.1.89 the informant gets the sanction order of the same date from the Government so it was filed. As seen earlier the sanction order also appears to be not based on the application of mind rather it was given as a formality to cover up the latches of the prosecution and to somehow give to the court the jurisdiction for an order under section 190 Cr. P.C. the sanction order has been sent to the informant when the State agency was prosecuting the case and the charge sheet had been submitted. In such a situation and circumstances the petitioners who had got a right under the Constitution for the protection of their liberty have rightly approached this court and this court in these circumstances has no option but to grant the relief by quashing the FIR and both the charge-sheets of the said Gandhi Maidan police station case No.970 of 1988, so fart these two petitioners are concerned. 69. Learned counsel for the informant has contended that two writ petitions were filed before the Rajasthan High Court for quashing the criminal investigation and the proceedings in this very Gandhi Maidan case and the said Court by its orders dated 4.12.89 and 7.12.89 has dismissed the writ petitions and so when once a court has decided the matter these petitions are not tenable. A copy of the order dated 7.12.89 has been filed as Annexure-B/1 to an affidavit dated 8.2.90 Sworn by the I.O. who had become Additional Superintendent of Police posted in the Vigilance department Cooperative Cell, Patna, on behalf of the informant through Sri P.K. Shahi Advocate for the informant. A copy of the order dated 7.12.89 has been filed as Annexure-B/1 to an affidavit dated 8.2.90 Sworn by the I.O. who had become Additional Superintendent of Police posted in the Vigilance department Cooperative Cell, Patna, on behalf of the informant through Sri P.K. Shahi Advocate for the informant. The said order dated 7.12.89 in S.B. Civil Writ Petition No. 350 of 1989 (Gopal Lal v. Union of India and others) runs as follows : "Sri Bhandari states that in this matter Chalan has already been filed in court. The writ petition has, therefore, become infructuous. The writ petition is dismissed as having become infructuous. No order as to costs" The above order has been passed by a learned single Judge, and we are not in possession of the materials placed before the Rajasthan High Court and no material has been brought on the record during the course of hearing till we reserved this judgment. However, from the above order there does not appear to be any observation in respect of cases of these petitioners and further these petitioners Were not party to those proceedings As such those orders of that court dated 4.12.89 and 7.12.89 cannot come in the way of this court to pass orders in accordance with law. 70. Thus having considered all these facts and circumstances and the contention of the learned counsel for the parties and the material on the record, interest of justice will be served if the concerned FIR and charge sheet Nos. 102 and 103 of 1988 of the Gandhi Maidan P.S. Case No. 970 of 1988 in the court of the learned Special Judge, E.C. Act and the learned Chief Judicial Magistrate, Patna, respectively so far as they relate to these two petitioners be quashed. 71. With the above observations both the writ applications are allowed and the concerned FIR and both the charge-sheets as mentioned above so far as they relate to the petitioners Prem Prakash Sherma and Ganesh Dutt Mishra, are hereby quashed. In the Circumstances of the case there will be no order as to costs.