Hira Lal Bahoti v. State of Bihar — 1997 DIGILAW 63 (PAT)

JUDGMENT Ashisb N. Trivedi, J. The petitioners have prayed for quashing of the First Information Report of Chhatauni police Station Case No.9 of 1992 under Sections 420, 467, 468, 471 and 1208 of the Indian Penal Code and under the provisions of the Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 and have further prayed that the Respondent be commanded not to proceed with the further investigation in the said case. The Petitioner No. 1 is the Executive President/General Manager and the Petitioner No.2 is the Vice President/Cane Manager at the Motihari Sugar Factory, East Champaran. The case of the petitioners is that the purchase, supply, opening and closing of purchase centres etc. relating to sugarcane are regulated by the Bihar Sugarane (Regulation of Supply and Purchase) Act, 1981 which also provides for the procedure for institution of proceedings for violations of the provisions of the Act and the penalty for the offences under the Act has also been prescribed. Sri Daya Shankar Pandey, Executive Magistrate, Sadar, Motihari, Respondent No. 4 reported to the Officer-in-Charge, Chhitauni Police Station, Respondent No.3 alleging certain irregularities in the matter of issuance of requisition slips to the cane growers on the basis of which the FIR. dated 13.3.1992 (Annexure 1’) was registered at the said Police Station by which the petitioners are aggrieved. The contention of the learned counsel for the petitioners is that the Executive Magistrate, Sadar, Motihari, Respondent No. 4 is not the Authority competent to lodge the FIR for violation of the provisions of the Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981. A perusal of the FIR. (Annexure 1') reveals that the irregularities alleged pertain to the purchase of sugarcane. In the Counter Affidavit filed on behalf of the State it has been admitted that an enquiry was conducted by the Executive Magistrate Motihari, who had found that the petitioners were committing irregularities in the matter of issuance of cane challans and therefore the FIR was lodged. This court on 13.3.1992 while granting time to the State Counsel to obtain instructions directed that no coercive steps shall be - taken against the petitioners and this order has neither been vacated more modified till date. I have heard learned counsel for the petitioners and the learned counsel for the State. Having considered the submissions made by the learned counsel for the petitioners. I have heard learned counsel for the petitioners and the learned counsel for the State. Having considered the submissions made by the learned counsel for the petitioners. I am of the view that the petitioners can not be prosecuted in pursuance of the impugned FIR. Section 52 of the Act provides for the penalty for the offences for contravention of the provisions of the Act or of any order made or direction given there under or the terms and conditions of any licence Section 53 of the Act provides for institution of proceedings. It says that no prosecution under the Act shall be instituted except upon a complaint made in writing by an Officer authorised in this behalf by the State Government. In the Counter Affidavit filed on behalf of the State it has not been stated that the Executive Migistrate is an Officer authorised by the State Government to institute a proceeding. Further it is only on the basis of a complaint filed by an Officer authorised by the State Government that the prosecution can commence for the violation of the provions of the Act or the Rules or any orders made there under. Learned counsel referred to the Gazette Notification dated 16th September, 1983 which is reproduced hereunder: S.O. 1139 - In exercise of the powers conferred under Section 53 of Bihar Sugar cane (Regulation of Supply and Purchase) Act 1981, the Governor of Bihar is pleased to authorise the following officers to start legal proceeding against persons concerned in contravention of any of the provisions of the Act or the Rules of any order made, or direction given there under or of the terms and conditions of any licence issued under the aforesaid Act, or abatement thereof within their respective jurisdiction- : (1) Cane Commissioner, Bihar, Patna. (2) Joint Cane Commissioner, Bihar Patna (3) Assistant Cane Commissioner, Bihar, Patna. (4) Assistant Cane Commissioner, North Bihar, Muzaffarpur. (5) Special Officer Cum-Deputy Registrar Bihar Patna. (6) Special Cane Officer, Bihar, Patna. (7) Special Cane Officer, Gopalganj. (8) All Cane Officers, Bihar. Provided that a Cane Officer will exercise this power with the Prior approval of the Cane Commissioner, Bihar. 2. Department's notification no. S.O. 204 dated the 10th April, 1973 and S.O. no. 1759 dated the 28th August. 1973 are hereby cancelled. By order of the Governor of Bihar. SHIV PRIY A, Additional Secretary to Government. (8) All Cane Officers, Bihar. Provided that a Cane Officer will exercise this power with the Prior approval of the Cane Commissioner, Bihar. 2. Department's notification no. S.O. 204 dated the 10th April, 1973 and S.O. no. 1759 dated the 28th August. 1973 are hereby cancelled. By order of the Governor of Bihar. SHIV PRIY A, Additional Secretary to Government. From a perusal of the Gagette Notification it is evident that the Executive Magistrate is not an Officer authorised by the State Government to start Legal proceedings against the persons concerned in contravention of any of the provisions of the Act or the Rules or any order made or direction given thereunder. In this view of the matter no cognizance can be taken of the F. I. R. dated 13.3. 1992 and the petitioners cannot be prosecuted for the alleged offences or for contravention of the Rules or orders or directions made there under are punishable under Section 52 of the Act. Accordingly the writ Petition is allowed and the F.I.R. dated 13.3.1992 (Annexce 1) is quashad and the Respondents are restrained from taking any action against the petitioners on the basis of the said F.I.R. No order as to costs. Petition Allowed.