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2010 DIGILAW 3640 (ALL)

LAL CHANDRA AGRAWAL v. STATE OF U. P.

2010-12-03

AMAR SARAN, NAHEED ARA MOONIS

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JUDGMENT Naheed Ara Moonis, J.—Initially the present writ petition was connected with other writ petitions pertaining to writ petitions filed under Sections 272/273 IPC and Prevention of Food Adulteration Act, 1956. Learned counsel for the petitioner contended that the writ petitions has been filed against the lodging of the First Information Report when on the same “cause of action” a complaint case was instituted against the petitioner which amounts to double jeopardy, therefore, the writ petition may be heard and decided on this issue. The present writ petition is being dissociated from other writ petitions and is being heard. Heard learned counsel for the petitioner and learned AGA and perused the record. 2. The instant writ petition has been filed with a prayer to quash the First Information Report lodged against the petitioner vide Case Crime No. 633 of 2010 under Sections 272/273 IPC read with Section 7/16 Prevention of Food Adulteration Act Police Station Kotwali Dehat District Mirzapur. Further relief has also been sought for staying the arrest of the petitioner during investigation pursuant to the First Information Report. A complaint dated 10.8.2010 was filed by the Food Inspector Mirzapur in the Court of Ist Additional Chief Judicial Magistrate Mirzapur which was registered as Complaint Case No. 1645 of 2010 with the allegation that from the petitioner who is running a grocery shop, a sample of turmeric was taken and sent for chemical analyst and the chemical analyst report was received on 9.7.2010 indicating that meta nil yellow colour was found which was not fit for human consumption and the sample was adulterated. After obtaining sanction from the District Magistrate, the aforesaid complaint was filed under Section 7/16 Prevention of Food Adulteration Act and the cognizance was taken by the learned Ist Additional Chief Judicial Magistrate on 13.8.2010 whereby the petitioner was summoned to appear before the Court on 13.9.2010. The main plank of the submission of the learned counsel for the petitioner is that in respect of the same cause of action, the impugned First Information Report was lodged on 25.8.2010 on the basis of the same sample report of the public analyst under Section 272/273 IPC and Section 7/16 of the Prevention of Food Adulteration Act. Therefore, the petitioner is wrongly sought to be prosecuted twice, firstly on the basis of the complaint and subsequent thereto on the basis of the First Information Report. 3. Therefore, the petitioner is wrongly sought to be prosecuted twice, firstly on the basis of the complaint and subsequent thereto on the basis of the First Information Report. 3. In support of this contention, the learned counsel for the petitioner has placed reliance upon the decision of Apex Court in Upkar Singh v. Ved Prakash, AIR (2004) SC 3240 and T.T. Antony v. State of Kerala, AIR (2001) SC 2637, for the proposition that the prosecution of the petitioner on the basis of the First Information Report is absolutely illegal, unjust and amounts to sheer harassment as it was contended that two First Information Reports are not permissible in respect to one and the same incident because the subsequent First Information Report is hit by Section 162 Cr.P.C. 4. Per contra learned AGA contended that the First Information Report was lodged under Section 272/273 IPC which are penal offences and is quite distinct from the complaint case registered under Section 7/16 Prevention of Food Adulteration Act. There is no irregularity or absurdity in initiation of prosecution against the petitioner under Section 272/273 IPC who is involved in the serious offence of selling adulterated edible items and the sample of turmeric sent for chemical analyst shows meta nil yellow substance which is injurious for health. 5. From the arguments advanced by the learned counsel for the petitioner it clearly emerges that after lodging of the complaint, summons were issued but the petitioner has not appeared and when the First Information Report was lodged against the petitioner, he approached this Court directly with a prayer to anyhow obtain an order staying his arrest on the ground that he is being harassed by the police for the same offence. We are not in agreement with the contention of learned counsel for the petitioners as we are of the view that the petitioner has a remedy under Section 210 Cr.P.C. The object of Section 210 Cr.P.C. is that when the offence in the complaint case and the police case are identical they should be tried simultaneously to avoid unnecessary multiplicity of proceedings. Moreover, as provided under Section 210 (1) Cr.P.C. when it appears to the Magistrate that the investigation is in progress in relation to the offence which is the subject-matter of enquiry or trial held by him as a complaint case, he has to stay the proceedings of such enquiry or trial and should call for a report on the matter from the police station conducting investigation. At this juncture, since the police has not submitted any report and only a First Information Report has been registered under Section 272/273 IPC and Section 7/16 Prevention of Food Adulteration Act for which a complaint is already pending, in such circumstances the petitioner ought to have approached to the Court concerned for staying proceedings in the complaint case in exercise of powers conferred under Section 210 (1) Cr.P.C. to enable the Magistrate to have the benefit of the police report which would be submitted after the investigation of the case. The three conditions with regard to applicability of Section 210 Cr.P.C. are as under : (i) that there should be a case instituted on a complaint pending enquiry or trial; (ii) the investigation be in progress in relation to the same offence; (iii) the complaint should be earlier in point of time. 6. In view of the aforesaid provisions, we are of the opinion that the prosecution for food adulteration can be made under the provisions of Prevention of Food Adulteration Act and penal code even if both are based on the same averments. The case laws cited by learned counsel for the petitioner are not relevant for the decision of the present case as the prosecution of the petitioner is not on the basis of the two First Information Reports. There is no dispute that two First Information Reports cannot be lodged in respect of the same cause against the same persons but in the instant case, one is a complaint under the Prevention of Food Adulteration Act and another is First Information Report under the penal code against the petitioner which can be clubbed and tried together as provided under Section 210 Cr.P.C. Therefore, the petitioner cannot say that the prosecution against him is hit by principles of double jeopardy and in other words it cannot be said that the petitioner is being vexed twice for the same offence. 7. 7. In Nirmal Singh Kehlon v. State of Punjab and others, 2009 (1) SCC 441 , where a First Information Report had already been lodged in respect of the offence by individuals, subsequently the matter was transferred to the CBI which during investigation collected huge amount of material showing that a scam was involved in the selection process of Panchayat Secretaries. The second First Information Report was lodged by the C.B.I. The Apex Court came to the conclusion that the matter investigated by CBI dealt with a larger conspiracy, therefore, investigation has been on a much wider canvass and held that second First Information Report was permissible and required to be investigated. It was that the concept of fair investigation and fair trial are concomitant to preservation of fundamental right of the accused under Section 21 of the Constitution of India. 8. In the matter of Ram Lal Narang and another v. Delhi Administration and others, 1979 SCC 322 , the Apex Court considered the case wherein two First Information Reports have been lodged. While considering the question as to whether investigation and further proceedings on the basis of both First Information Report was permissible, the Hon’ble Apex Court held that no straight jacket formula can be laid down in this regard and the only test is as to whether the two conspiracies were identical or not. After considering the facts of the case, the Court came to the conclusion that both the conspiracies were not identical, therefore, lodging of two First Information Reports were held to be permissible. In such circumstances the question involved in the present petition is quite distinct as the First Information Report has been lodged pursuant to the direction of the Commissioner Food & Drugs (Admn) U.P. Lucknow vide letter dated 16.8.2010 (subsequent to the filing of the complaint case) to register a case under Section 272/273 IPC which is a distinct offence for which punishment of life imprisonment is provided. 9. 9. The Full Bench of this Court in Ajit Singh @ Muraha v. State of U.P. and others, 2006(56) ACC 433 (All)(FB), reiterated the view taken by the earlier Full Bench in Satya Pal v. State of U.P. and others, 2000 Cr LJ 569 (All)(FB), that there can be no interference with the investigation or order staying arrest unless a cognizable offence is not ex-facie discrenible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the Police to investigate a case as laid down by the Apex Court in various decisions including State of Haryana v. Bhajan Lal and others ( AIR 1992 SC 604 ) attended with further elaboration that observations and directions contained in Joginder Kumar’s case (Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260 ), contradict extension to the power of the High Court to stay arrest or to quash an F.I.R. under Article 226 and the same are intended to be observed in compliance by the Police, the breach whereof, it has been further elaborated, may entail action by way of departmental proceeding or action under the Contempt of Court Act. The Full Bench has further held that it is not permissible to appropriate the writ jurisdiction under Article 226 of the Constitution as an alternative to anticipatory bail which is not invocable in the State of U.P. attended with the further observation that what is not permissible to do directly cannot be done indirectly. 10. Having analysed the entire facts and circumstances of the case, we are of the opinion that the petitioner has not brought forth anything cogent or convincing to manifest that no cognizable offence is disclosed prima facie on the allegations contained in the FIR or that there was any statutory restriction operating on the police to investigate the case. We are quite loathe to quash the First Information Report or staying arrest of the petitioner as the contents of First Information Report do disclose commission of a cognizable offence. This Court is not inclined to interfere with the investigation which is within the domain of the police. The writ petition is bereft of merits and is accordingly dismissed. —————