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Madhya Pradesh High Court · body

2012 DIGILAW 597 (MP)

HARIBABU SHARMA v. STATE OF MADHYA PRADESH

2012-06-22

G.D.SAXENA

body2012
Judgement G D Saxena, J [1] In this application under Section 482 of the Code of Criminal Procedure petitioner has prayed for quashing the proceedings against him under Section 3/7 of the Essential Commodities Act (hereinafter to be referred as 'the Act') pending before the Judicial Magistrate First Class, Bhind. [2] The brief facts, just essential for the decision of this case are that the petitioner being the Secretary of Bratakar Sahakari Sewa Samiti was engaged in running the Fair Price Shop under the Public Distribution System Order 2009 for distribution of essential commodities to the ration card holders. It is alleged that after having come to know through various complaints that the petitioner is involved in committing irregularities in distribution foodstuffs to the card holders and thereby violated the rules of the Public Distribution System, an inquiry was conducted by the Sub Divisional Officer. After inquiry, the report was sent to the concerning police station for registering the FIR against the petitioner for the offence of the contravention of the provisions of certain Control Orders promulgated relating to essential commodities under Section 3 of the Act which is punishable under Section 7 of the Act. On lodging FIR, the investigation was set in motion. After investigation, charge-sheet was filed before the Judicial Magistrate First Class, Bhind. The trial is under progress. [3] The contention of the learned counsel appearing for the petitioner is that the Sub Divisional Officer, Bhind was not authorised by any Act/rules/notification/order from the competent authorities for initiating action against the petitioner and therefore the FIR lodged on his report is beyond jurisdiction. It is submitted that the petitioner has neither violated any of the conditions of the Central Order nor contravenes any rules/notification issued by the State Government/Central Government, which is an offence punishable under Section 3/7 of the Essential Commodities Act. Therefore, it is prayed that the entire criminal proceeding pending before the Judicial Magistrate First Class, Bhind alongwith FIR lodged on the report of SDO is liable to be quashed. To support his submissions, learned counsel placed reliance on the decisions rendered in the cases of M/s Bhurey Lal Mahesh Chandra & others Vs. State of U.P,1987 EFR 378), Smt. Sushila Chaudhary & another Vs. State of U.P. & others,1987 EFR 336) and Hema Bhadoriya Vs. To support his submissions, learned counsel placed reliance on the decisions rendered in the cases of M/s Bhurey Lal Mahesh Chandra & others Vs. State of U.P,1987 EFR 378), Smt. Sushila Chaudhary & another Vs. State of U.P. & others,1987 EFR 336) and Hema Bhadoriya Vs. State of M.P.,2008 1 EFR 198] including one un-reported order of this court passed in M.Cr.C.No.3210/11 (Sonu Jain Vs. State of M.P.). [4] The learned Public Prosecutor for the respondent/State, on the other hand, contended that there is no merit in the petition. It is submitted that in the present case, the allegations contained in the FIR prima facie disclose commission of offence against the petitioner and therefore, at this stage, it would not be proper to quash FIR and the entire criminal proceedings. Reliance is placed on the decision rendered in the case of Kishore Kumar S/o Bandi Dixit and another Vs. State of M.P., 2009 1 MPLJ 624 . Accordingly, it is prayed for dismissal of the petition. [5] Heard the learned counsel appearing for both the sides. Also perused the charge-sheet papers and the documents filed by the petitioner alongwith relevant provisions of law applicable to the case. [6] The pertinent question calling for determination is as to whether the proceedings in the case under the Act which was in force when the alleged offence is said to have been committed can be continued when the FIR and the charge-sheet have been filed on the report of the Sub Divisional Officer, who is not competent to initiate action against the accused ?. [7] To reach on the proper and correct conclusion at first, the legal aspect of the present case should be considered. The relevant laws governing the case are as follows :- Section-3- POWERS TO CONTROL PRODUCTION, SUPPLY, DISTRIBUTION, ETC.OF ESSENTIAL COMMODITIES. (1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations , it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. Section 7 - PENALTIES. Section 7 - PENALTIES. (1) If any person contravenes any order made under Sec. 3, - (a) he shall be punishable, - (i) in the case of an order made with reference to Cl.(h) or Cl.(i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine; The relevant provisions of the Public Distribution System (Control) Order 2001 are as follows :- 7. Licensing.- (1) The procedure for issue of licenses or authorization to the fair price for the distribution of essential commodities under Public Distribution System and duties and responsibilities of the fair price shop owners shall be as per paragraph of the annexe to this order. (2)the ration card holder shall not be denied the supply as per entitlement of the essential commodities ,lying in stock, by the fair price shop holder under the Public Distribution System. (3)The fair price shop owner shall not retain ration cards after the supply of the essential commodity. (4) xxx xxx xxx xxx (4-A) xxx xxx xxx xxx 9. Penalties.- If any person contravenes any provision provisions of this order under Clauses 3,4,6,7 be liable to punishment under Section 7 of the Act. 10. Powers of search and seizure.- (1) an authority authorized by the State Government shall be competent to inspect or summon such records or documents as may be considered by him necessary for examination and take extracts or copies of any records or documents produced before him. 14.-Provisions of the Order to prevail over previous Orders of State Government.- The provisions of this Order shall have effect notwithstanding any thing to the contrary contained in any order made by a State Government or by a State Government or by an officer of such State Government before the commencement of order as respects anything done ,or omitted ti be done thereunder before such except commencement. Annexe to the Public Distribution System Control Order 2001 [See Clauses 3,4,5,6,7,8,10,and 12] 5.- Licensing.- State Government shall issue an order under Section 3 of the Act for regulating the sale and distribution of the essential commodities. Annexe to the Public Distribution System Control Order 2001 [See Clauses 3,4,5,6,7,8,10,and 12] 5.- Licensing.- State Government shall issue an order under Section 3 of the Act for regulating the sale and distribution of the essential commodities. The licences to the fair price shop owners shall be issued under the said order by the designated authority appointed by the State Government and the authority shall lay down the duties and responsibilities of the fair price shop owner. The responsibilities and duties of fair price shop owner shall include interalia : (i) to (vii) xxxx (viii) opening and closing of the fair price shop as per prescribed timings displayed on the notice board. The State Government, in exercise of the powers conferred by Section 3 read with section 5 of the Essential Commodities Act 1955 and in pursuance of GSR 681 (E) and GSR 682 (E) dated 30 th November 1974 and GSR 800 dated 9 th June 1978 of the Ministry of Agriculture and Irrigation (Department of Food), make Madhya Pradesh Public Distribution System (Control) Order 2009. The relevant provisions of the order are as follows :- 8- Inspection and supervision.- The Collector of the District shall prepare a roaster for inspection and ensure that each fair price shop under his jurisdiction is inspected at least in every three months and the report of inspection shall thereafter be submitted in Form 'E' to to the commissioner quarterly and the inspection and inspection can be done by the executive officer of Revenue not below the rank of Naib Tehsildar, food not below than Junior Food Officer (Food) and co-operative department of the State Government not below the rank of Sub auditor of Co-operative Department. (Regulation 10) 11.- Punishment and Penalties.- (5) In the event of a fair deal shop violating the conditions of the Central order or this order, the Collector can initiate action under Section 7 of the Essential Commodities Act 1955. [8] The contention of the learned counsel for the petitioner is that as per Section 11(5) of the Act, it was only the Collector, who could initiate action against the accused for violation of the conditions of the order and the SDO was not competent to proceed with the matter. [8] The contention of the learned counsel for the petitioner is that as per Section 11(5) of the Act, it was only the Collector, who could initiate action against the accused for violation of the conditions of the order and the SDO was not competent to proceed with the matter. [9] In view of the said submission, it therefore has to be seen whether the action of the Sub Divisional Officer in filing the F.I.R. before the Judicial Magistrate, is illegal and without jurisdiction. In my considered opinion, the submission of the learned counsel for the petitioner that the action of the SDO in filing the F.I.R, is not authorised and is without jurisdiction, is devoid of merits and cannot be accepted. [10] Under Section 11 of the Act, a Court is competent to take cognizance of an offence punishable under the Act either on a report in writing by a person who is a public servant, as defined in Section 21 of the Indian Penal Code, 1860 or any person aggrieved or any recognised consumer association. Indeed, under Section 154 of the Code, every information relating to commission of a cognizable offence can be given by any person to an officer in-charge of a police station, and such officer shall have to record the information in writing and forward a copy of the information to a Magistrate empowered to take cognizance of such offence under Section 157(1) of the Code. Further, under Section 156(1) of the Code, an officer in-charge of a police station is competent to investigate any cognizable case without the order of a Magistrate, and no proceeding of police officer in any case at any stage can be questioned on the ground that the case was one which such officer was not empowered to investigate. Chapter XIV of the Code deals with conditions requisite for initiation of proceedings. Under Section 190(1) of the Code, any Magistrate of First Class is empowered to take cognizance of any offence (a) upon receiving a complaint on facts which constitutes such offence; (b) upon a police report of such facts; and (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. In a case falling under either (a) and (b), even if an offence is taken cognizance of by a Magistrate, not empowered by law, the proceedings shall not be set aside merely on the ground that he not being empowered, is not entitled to take cognizance (See Section 460(e) of the Code). It is only in a case falling under Section 191(1)(c) of the Code that as per Section 461 thereof, the proceedings of a Magistrate not being empowered by law shall be void. [11] Hence, any person is competent to give information of commission of cognizable offence to a police station and such right is conferred by section 11 of the Act. There can be no doubt that the SDO is a public servant as defined in Section 21 of the Indian Penal Code. Therefore, a report by him can properly be regarded as a report by a public servant. The language of Section 11 is wide enough to include him who cannot be excluded from the category of a public servant. Had the intention of the legislature been to exclude a report by him, the legislature certainly would have used apt words to exclude such a report. On the other hand, it may well be argued that by the provision concerned the legislature intended to enlarge the mode of taking cognizance by providing for cognizance upon a report by any public servant as defined in Section 21 of the Indian Penal Code. In that view of the matter, the report by the SDO is entitled "Report under Section 11 of the Essential Commodities Act, 1955 and Section 173 of the Criminal Procedure Code". In other words, the report by Sub Divisional Officer qua a public servant entitles the Court to take cognizance of offences under the Essential Commodities Act, 1955. Merely because the SDO sent the report to the police for legal action and the police instituted FIR and started investigation, said report does not cease to be a report made before a court by a public servant. In that eventuality, the court is competent on receiving the police report to take cognizance on perusing the written report by the public servant made to it together with the police report. In that eventuality, the court is competent on receiving the police report to take cognizance on perusing the written report by the public servant made to it together with the police report. [12] Now, coming to the factual aspects, on going through the FIR and the entire charge-sheet papers of the case it comes to light:- (i) that, Vrattakar Sewa Co-operative Society runs with the Fair Price Shop for distribution of foodstuffs and kerosene oil at controlled rate amongst the families below poverty line and the families of above poverty line and mid day meal amongst the educational Institutions of the area ; (ii) that, the petitioner being Secretary of the Society was engaged as a Salesman at the Fair Price Shop; (iii) that, on receiving some complaints, the SDO (Revenue) conducted the inquiry and concluded that the petitioner had violated the order of Central/State Government as well as the provisions of the Madhya Pradesh Public Distribution System (Control) Order 2009 which amounted to contravention of the Essential Commodities Act; and (iv) that, after making the inquiry, the Sub Divisional Officer observed that there is a violation of the Act, Rule and Ordinance which is an offence punishable under Section 7(ii) of the Act; [13] It is true that a person has no fundamental right to carry on business of any essential commodities which are owned by the State Government, but a citizen has right to be considered for appointment as Dealer or sub-dealer in essential commodities owned by Govt. when licence for carrying on business on essential commodities to the private individuals are issued. True that under the agreement, the petitioner is accountable as an agent of the Government in respect of the sale of foodstuffs and is required to maintain records and registers for that purpose. Clause 12 of the Act confers power upon the District Magistrate or the Controller to suspend the supply of foodstuffs without assigning any reason. In this particular case, the authority concerned has assigned a reason for making a report against the petitioner. As per report lodged, the allegation against the petitioner is that he had misappropriated foodstuffs and indulged in some illegal activities while dealing with the foodstuffs in a clandestine manner. This is a public distribution system through which the foodstuffs are supplied to the people. As per report lodged, the allegation against the petitioner is that he had misappropriated foodstuffs and indulged in some illegal activities while dealing with the foodstuffs in a clandestine manner. This is a public distribution system through which the foodstuffs are supplied to the people. The petitioner is an agent of the Government who is accountable for anything done with the article of foodstuffs entrusted to the petitioner under the said agreement. It has to bear in mind that the conditions under which the petitioner functioned were dictated or enforced upon the petitioner and he was bound to carry out the same. He had no option to dictate his own terms. Needless to say, in such cases, when Penal action is taken on the basis of certain allegations, it must confirm certain standard and that is with regard to reasonableness of the action in question. A reference may be made to the decision of Hon. Apex court in the case of Kasturi Lal Lakshmi Reddy Vs. State of Jammu and Kashmir, 1980 3 SCR 1338 wherein it was observed:- "Where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or granting other forms of largess, the Government cannot act arbitrarily at its sweet will. Every activity of the Government has a public element in it and it must therefore, be informed with reason and guided by public interest. If the Government awards a contract or leases out or otherwise deals with its property or grants any other largess, it would be liable to be tested for its validity on the touchstone of reasonableness and public interested and if it fails to satisfy either test, it would be unconstitutional and invalid." [14] Applying the said principle, it can be safely said that in the facts and circumstances of the case the authority concerned took a reasonable decision, which cannot be termed to be illegal or arbitrary. Hence, in the light of the discussions made hereinabove and the material on record, it is clear that the impugned action taken against the petitioner much satisfies the twin tests of reasonableness and public interest. [15] It is no doubt true that summoning an accused, in a criminal case, is a serious matter and criminal law cannot be set in motion as a matter of course. [15] It is no doubt true that summoning an accused, in a criminal case, is a serious matter and criminal law cannot be set in motion as a matter of course. The accused can approach this Court, under Section 482 Cr.P.C. to have the proceedings quashed against him when the complaint does not make out any case against him and he is still required to undergo the agony of a criminal trial, for the provisions of Section 482 of the Code are devised to advance justice and not to frustrate it. Under Section 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of Court or otherwise to secure the ends-of justice. But the expressions "abuse of the process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of the process of law or the ends of justice can only be secured in accordance with law including procedural law and not otherwise, Further, inherent powers are in the nature of extraordinary powers to be used sparingly for achieving the object mentioned in Section 482 of the Code. [16] Considering the above, this court does not find a ground sufficient for quashing the criminal proceedings instituted upon the FIR. [17] Resultantly, the petition fails and is dismissed. Petition dismissed.