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2012 DIGILAW 68 (PAT)

Darshan Thakur v. State of Bihar

2012-01-13

ADITYA KUMAR TRIVEDI

body2012
JUDGMENT A.K. Trivedi, J.-Petitioners who happens to be employee of M.P. Udog Limited (Sugar Cane Mills Branch) and who have been added as an accused of Majhauli P.S. Case No. 30 of 2005 registered under Sections 420, l20-B of the I.P.C. and 7 of the E.C. Act have filed instant petition of writ in nature of certiorari for quashing of the Manjhauli P.S. Case No. 301 of 2005 along with whole prosecution connected there with along with an ancillary relief coming out therefrom. 2. Umesh Kumar Bharti, Cane officer, Bettiah filed written report in accordance with direction of the District Magistrate, West Champaran at Bettiah alleging inter alia that during cane crushing year 2005-06 cane growers of different village, namely, Parmanand Yadav, Sidheshwar Mishra, Satendra Kumar Yadav, Sandeep Kumar Giri, Anil Kumar Pandey, Manju Ram, Shekh Lal, Md. Hakim, Sunil Singh, Subodh Singh, Baidhnath Singh, Shayamakant Tiwari, Manoj Kumar Tripathi, made claim over which the District Magistrate, West Champaran had entrusted inquiry, to him. During conduction of the inquiry, he along with Assistant Yugul Kishore Prasad had gone to Barna village and inquired about measurement. During said course they have found bungling at large scale. The C.O., Majhauli had also filed his report. Again on 25.12.2005 he along with Yugul Kishore Prasad and Ali Hasan Devan had gone to different reserved village and took statement of witnesses. From their statement it is evident that there was wrong measurement of the land as well as the chalans were being sold at rupees nine hundred to twelve hundred per hect and three hundred to four hundred for per tyre. The Mill Administration has issued receipt for three tyre an acre fixing yield at 60 quintal per quintal has against its real production to be 200 to 250 quintal, The aforesaid written report also contains different annexures. Such as statement of the witnesses, inquiry report etc. 3. Contention on behalf of the petitioners are that none of the sections where under case has been registered is applicable in the facts and circumstances of the case. Such as statement of the witnesses, inquiry report etc. 3. Contention on behalf of the petitioners are that none of the sections where under case has been registered is applicable in the facts and circumstances of the case. Because of the fact that there has not been violation of any order attracting application of Essential Commodity Act and in likewise manner there happens to be no deception to attract Section 420 of the I.P.C. Therefore, institution of case under Sections 420, 120-B of the I.P.C. as well as Section 7 of the E.C. Act is not at all permissible. 4. It has further been submitted that instant case has been registered by the person who was himself responsible for implementation of the scheme as provided under Bihar Sugar Cane (Regulation of Supply and Purchase) Act, 1981. Also submitted as per Section 12 of the Act there happens to be provision for appointment of Cane Commissioner while Section 13 deals with appointment of Cane Officer. Sub-sections 5, 6, 7, 8, 9 of Section 13 happens to be the duties to be performed by the Cane Officer. It is evident from the averments of the written report that whatever irregularity has been alleged, those were to be dealt with by the Cane Officer on its own level more particularly the sub-section 5(e), sub-section 7(1) and only to shed his own fault on account of non-discharging of function allotted to him, got a false report submitted followed with institution of the instant case. Also submitted that under Chapter IV, as per Section 27 of the Act, the factory was required to furnish details of requirement for the relevant crushing year and in the aforesaid background the Cane Commissioner was required to declare particular area in consonance thereof as reserved area in accordance with Section 31 of the Act and during said course, the objections if any, raised was to be dealt with at its level and the same was to be notified under Official Gazette in accordance with Section 32 of the Act. Sub-section (3) of the aforesaid section prescribes for entering into an agreement with the cane grower while Section 33 prescribed or purchase of cane grown outside reserved area. Sub-section (3) of the aforesaid section prescribes for entering into an agreement with the cane grower while Section 33 prescribed or purchase of cane grown outside reserved area. How the survey of sugarcane areas has to be done, is duly identified under Section 34 of the Act and the same was to be carried out by an officer duly appointed by the State Government. So submitted that as per Section 34 of the Act, the survey of sugarcane area is to be carried out by the person so appointed by the State Government. None of the petitioners have been appointed by the State Government therefore the allegation levelled by the informant is nothing but an illegal action to hide his own fault. Also submitted that as per Section 46, the dispute whatever may has to be dealt with by the authorities concerned and the order happens to be appealable one to be entertained by the Collector of the district. The aforesaid order happens to be final and is executable as a Civil Court decree in accordance with Section 47 of the Act. Then submitted that any violations thereof have been made penal and for that Section 52 takes care of. Section 53 deals with mode of institution of the case. Thus, it has been averred on behalf of petitioner in the aforesaid background that whatever irregularity has been found, that was amenable through the process of law by the authorities concerned. None of the persons who has been named in the written report have ever exercised the aforesaid procedure to get their grievances, if any, redressed although for that company was not at all responsible rather the Informant himself to be. When violation of any so entrustment under Act has been made penal and the procedure has been prescribed there for, then in that event registration of Majhaulia P.S. Case No. 301/2005 under Sections 120-B, 420, I.P.C. and 7 of the E.C. Act is not at all maintainable. At this juncture, much stress has been given by the learned counsel for the petitioners that when there happens to be special law commanding and governing the issue and further, prescribing the mode of punishment then the aforesaid special law will override the general law for the area covered under special law. At this juncture, much stress has been given by the learned counsel for the petitioners that when there happens to be special law commanding and governing the issue and further, prescribing the mode of punishment then the aforesaid special law will override the general law for the area covered under special law. Therefore, institution of the case in present manner happens to be non-permissible and for that relied upon decisions reported in 2011(1) LPJR 1064, Para-92 to 95, 2006(3) LPJR 279, Paras-9, 10, 11, 15, 1997 BBCJ 553 , AlR 1961 SC 1170, 2004 (2) LPJR 648 Paras-4, 5, 6, 1982 (1) SCC 561 , AIR 2001 SC 2037 , Paras-18, 19, 23, 27, 38 & 35, 1992 (SupL) 1 SCC 335, Para102, 2007 (12) SCC 1 Paras-23, 24, 27, 32, 41, 42, 45 & 46, 2005(1) SCC 608 Para 27. 5. At the other hand, the learned G. P. -6 submitted that fallacious argument has been raised on behalf of the petitioner. The allegations are not at all covered under Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981, rather the company in order to have illegal gain and to put the cane growers, under wrongful loss, wherein petitioners facilitated the company illegally and arbitrarily measured the area and shown less than the actual area occupied by the cane growers at the spot. So, it happens to be an intentional act by which the cane growers were defrauded. Also submitted that the other kind of malpractice has also been adopted by the petitioners by compelling the cane growers to pay the amount illegally for obtaining slips which could enable them to supply cane to the factory. As such there happens to be full application of Sections 420, 120-B of the I.P.C. and 7 of the E.C. Act. 6. Gone through the record. There happens to be no allegation of violation of any of the control order nor the growing of sugarcane followed with supply for its crushing does attract any of the provision prescribed under different control order. As such application of Section 7 of the EC Act appears to be bad on its face itself. 7. So far other part is concerned, for that relevant sections of Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 has to be gone through. 8. As such application of Section 7 of the EC Act appears to be bad on its face itself. 7. So far other part is concerned, for that relevant sections of Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 has to be gone through. 8. As per Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981, the appointment of Cane Officer is to be effected at the hands of State Government by notifying it in the Official Gazette in accordance with Section 13 of the Act which also prescribes the power which has to be exercised and discharged by the Cane Officer. The State has failed to place any Gazette Notification in pursuant with Section 13 of the Act identifying any of the accused petitioner having been appointed as Cane Officer. 9. Section 32 of the Act prescribes for modes of purchase of cane from growers in the reserved area. Where under sub-sections 2, 3 and 4 prescribes that the factory at one end while cane grower society/individual at other will enter into an agreement ,and the aforesaid event happens to be an appeal able order in accordance with subsection 4 thereof (in case of dispute). 10. Section 34 of the Act deals with survey of Sugarcane which again puts burden upon the shoulder of State Government to notify in Official Gazette an officer duly appointed by the State Government for the aforesaid purpose. Remaining sub-sections guide the mode of survey. Then there happens to be mode of payment of cane supplied to the factory as prescribe under Section 43 and any dispute on that very score is to be dealt with in accordance with Section 46 of the Act. 11. Thereafter, Chapter VI has been introduced which happens to be penal provision attracting the events where under any person who contravene or attempts to contravene or abets the contravention of any of the provision of this Act or rules or order. Section 52 also attracts the employee/manager of the factory acting on behalf of factory within its ambit. Section 53 deals with the mode of institution which should be in any case by way of filing of complaint. Section 54 deals with the nature of offence to be compoundable one. 12. The allegation whatever been levelled roams around the event over survey of the area as well as issuance of slip. Section 53 deals with the mode of institution which should be in any case by way of filing of complaint. Section 54 deals with the nature of offence to be compoundable one. 12. The allegation whatever been levelled roams around the event over survey of the area as well as issuance of slip. The aforesaid event as discussed above is fully covered under Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981, and in the aforesaid background even if accepting on its face happens to be punishable under Section 52 of the Act, then the complaint, instead of police case, happens to be the only way for initiation of the prosecution as is prescribed under Section 53 of the Act. 13. As has been held in AIR 1961 SC 1170 at para 9 : “The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply." 14. Certain criterias has been identified by the Hon’ble Apex Court justifying quashing of the proceeding as is evident from renowned decision reported in AIR 1992 SC 604 , State of Hariyana & Ors. v. Bhajan Lal & Ors. and those are : "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceedings against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 15. From the narration of the written report, it is evident that a vague allegation without identifying any of the petitioner has been made. Moreover, the allegation appears to be covered under Special Law as Bihar Sugar Cane (Regulation of Supply and Purchase) Act, 1981 where under prosecution by police case is not at all identifiable contrary to it complaint case is permissible. As such criteria No.6, so laid down by the Hon’ble Apex Court is under full application. Consequent thereupon, presence and continuance of Majhaulia P.S. Case No. 301/2005 cannot be held justifiable. As such same is quashed. Thus petition is allowed. Petition allowed.