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Madhya Pradesh High Court · body

2019 DIGILAW 697 (MP)

Arvind Kumar Gautam v. State of M. P.

2019-09-26

SANJAY YADAV, VIVEK AGARWAL

body2019
ORDER 1. I.A. No. 2554/2019, an application for exemption from filing typed copy of page Nos. 25 to 46. 2. Learned counsel for the petitioner at the outset does not press the application. He also submits that he does not wish to press the aforesaid documents while arguing the matter. I.A. No. 2554/2019 stands dismissed as not pressed. 3. This Petition under section 482 of CrPC has been received before the Division Bench as per the orders of Hon'ble the Chief Justice on a Reference made by learned Single Judge of this Court after hearing and taking a contrary view to the law laid down by the learned Single Judge at Principal Seat at Jabalpur in the case of Om Prakash Rajput v. State of M.P. and others, as reported in 2018 (1) MPWN 93 . 4. Learned Single Judge at Jabalpur while deciding case of Om Prakash Rajput (supra) held that Collector before lodging an FIR/Criminal Case while exercising its jurisdiction under Clause 16 (8) of the M.P. Public Distribution System (Control) Order 2015 (hereinafter shall be referred to as the "Control Order") is bound to provide an opportunity of hearing to the aggrieved person. 5. When similar matter i.e. present case came up before learned Single Bench at Gwalior, then learned Single Judge at Gwalior Bench was of the opinion that no prior opportunity was required and therefore this Reference has come up. 6. Two questions have been referred to us, namely; (1) Whether under Clause 16 (8) of 2015 PDS Order, it is incumbent upon the Collector or not to afford prior opportunity of being heard before taking a decision to initiate criminal prosecution against salesman of Fair Price Shop run by a cooperative society ? (2) Whether verdict of the Single Bench in Om Prakash Rajput (supra) in para 10 of the order exposits the correct position of law or not ? 7. Learned counsel for the petitioner submits that FIR has been lodged by the Junior Supply Officer without following the mandatory procedure laid down under the Control Order and without getting the prior opinion of the Collector and in fact it was the Collector only, who could have ordered for registration of FIR and that too after affording prior opportunity of hearing to the petitioner. 8. 8. Per contra, learned counsel for the State submits that once there is violation or dereliction, then as per the provisions contained in Clause 16 (8) of the Control Order, Collector has got exemplary power to initiate action and it is not necessary that Collector should personally lodge a report but the Collector has to only form an opinion as to the irregularity in operation of a Fair Price Shop and prosecution can be ordered against chairman or head of the society/salesman/employee of the institution. 9. As far as first question is concerned, Clause 16 of the Control Order deals with punishment and penalty. Clause 16 (8) of the Control Order reads as under : "16. Punishment and Penalty.- (1) xxx xxx xx (2) xxx xxx xxx (3) xxx xxx xxx (4) xxx xxx xxx (5) xxx xxx xxx (6) xxx xxx xxx (7) xxx xxx xxx (8) On finding an irregularity in operation of a fair price shop, if it is expedient in the opinion of the Collector, prosecution against chairman or head of the society/salesman/employee of institution may be initiated." 10. When this Clause is examined in the light of paragraph 30 to 33 of the judgment rendered by the Hon'ble Supreme Court in the case of Anuj Choudhary v. State of U.P. as reported in (2013) 6 SCC 384 , wherein placing reliance on the judgment of Union of India v. W.N.Chadha - AIR 1993 SC 1082 , Hon'ble Court has laid down the law after discussing two facts, firstly, Code of Criminal Procedure does not provide for any such right of prior hearing at that stage and secondly, the absence of such a provision clearly demonstrates the legislative intent to the contrary and thus necessarily implies exclusion of hearing at that stage. For ready reference, paragraphs 30 to 33 of the aforesaid judgment are as under : "30. Section 154 of the Code places an unequivocal duty upon the police officer-incharge of a police station to register FIR upon receipt of the information that a cognizable offence has been committed. It hardly gives any discretion to the said police officer. The genesis of this provision in our country in this regard is that he must register the FIR and proceed with the investigation forthwith. It hardly gives any discretion to the said police officer. The genesis of this provision in our country in this regard is that he must register the FIR and proceed with the investigation forthwith. While the position of law cannot be dispelled in view of the three Judge Bench Judgment of this Court in State of Uttar Pradesh v. Bhagwant Kishore Joshi, a limited discretion is vested in the investigating officer to conduct a preliminary inquiry preregistration of an FIR as there is absence of any specific prohibition in the Code, express or implied. The subsequent judgments of this Court have clearly stated the proposition that such discretion hardly exists. In fact the view taken is that he is duty-bound to register an FIR. Then the question that arises is whether a suspect is entitled to any pre-registration hearing or any such right is vested in the suspect. 31. The rule of audi alteram partem is subject to exceptions. Such exceptions may be provided by law or by such necessary implications where no other interpretation is possible. Thus rule of natural justice has an application, both under the civil and criminal jurisprudence. The laws like detention and others, specifically provide for post-detention hearing and it is a settled principle of law that application of this doctrine can be excluded by exercise of legislative powers which shall withstand judicial scrutiny. The purpose of the Criminal Procedure Code and the Penal Code, 1860 is to effectively execute administration of the criminal justice system and protect society from perpetrators of crime. It has a twin purpose; firstly to adequately punish the offender in accordance with law and secondly, to ensure prevention of crime. On examination, the scheme of the Criminal Procedure Code does not provide for any right of hearing at the time of registration of the first information report. As already noticed, the registration forthwith of a cognizable offence is the statutory duty of a police officer-in-charge of the police station. The very purpose of fair and just investigation shall stand frustrated if pre-registration hearing is required to be granted to a suspect. It is not that the liberty of an individual is being taken away or is being adversely affected, except by the due process of law. The very purpose of fair and just investigation shall stand frustrated if pre-registration hearing is required to be granted to a suspect. It is not that the liberty of an individual is being taken away or is being adversely affected, except by the due process of law. Where the officer-in-charge of a police station is informed of a heinous or cognizable offence, it will completely destroy the purpose of proper and fair investigation if the suspect is required to be granted a hearing at that stage and is not subjected to custody in accordance with law. There would be the pre-dominant possibility of a suspect escaping the process of law. The entire scheme of the Code unambiguously supports the theory of exclusion of audi alteram partem pre-registration of an FIR. Upon registration of an FIR, a person is entitled to take recourse to the various provisions of bail and anticipatory bail to claim his liberty in accordance with law. It cannot be said to be a violation of the principles of natural justice for two different reasons: firstly, the Code does not provide for any such right at that stage, secondly, the absence of such a provision clearly demonstrates the legislative intent to the contrary and thus necessarily implies exclusion of hearing at that stage. This Court in Union of India v. W.N.Chadha clearly spelled out this principle in paragraph 98 of the judgment that reads as under: (SCC p.293) "98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary." 32. In Samaj Parivartan Samuday v. State of Karnataka, a three-Judge Bench of this Court while dealing with the right of hearing to a person termed as "suspect" or "likely offender" in the report of the CEC observed that there was no right of hearing. Though the suspects were already interveners in the writ petition, they were heard. In Samaj Parivartan Samuday v. State of Karnataka, a three-Judge Bench of this Court while dealing with the right of hearing to a person termed as "suspect" or "likely offender" in the report of the CEC observed that there was no right of hearing. Though the suspects were already interveners in the writ petition, they were heard. Stating the law in regard to the right of hearing, the Court held as under : (SCC p.426, para 50) "50. There is no provision in CrPC where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. CBI, as already noticed, may even conduct pre-registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the precedents laid down by this Court. It is only in those cases where the Court directs initiation of investigation by a specialised agency or transfer investigation to such agency from another agency that the Court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. This question is of no relevance to the present case as we have already heard the interveners." 33. While examining the abovestated principles in conjunction with the scheme of the Code, particularly section 154 and 156 (3) of the Code, it is clear that the law does not contemplate grant of any personal hearing to a suspect who attains the status of an accused only when a case is registered for committing a particular offence or the report under section 173 of the Code is filed terming the suspect an accused that his rights are affected in terms of the Code. Absence of specific provision requiring grant of hearing to a suspect and the fact that the very purpose and object of fair investigation is bound to be adversely affected if hearing is insisted upon at that stage, clearly supports the view that hearing is not any right of any suspect at that stage." 11. Absence of specific provision requiring grant of hearing to a suspect and the fact that the very purpose and object of fair investigation is bound to be adversely affected if hearing is insisted upon at that stage, clearly supports the view that hearing is not any right of any suspect at that stage." 11. Besides this, even provision contained in Clause 16 (8) of the Control Order does not envisage any prior hearing to the violator of any of the provisions contained in Clause 16 (8) of the Control Order. 12. This Division Bench had an occasion to examine similar issue in the case of Anil Kumar Ojha and others v. State of M.P. and others in MCrC No. 8878/2017 decided on 2.5.2019, wherein a view against prior opportunity of hearing even at the stage of investigation has been laid down. 13. Thus, when the provisions contained in Clause 16 (8) of the Control Order are tested on the anvil of the judgment rendered in the case of Anuj Choudhary (supra), W.N. Chadha (supra) so also in the case of Samaj Parivartan Samuday (supra) alongwith the provisions contained in the substantive Act i.e. Code of Criminal Procedure, we are in no manner of doubt that there is no provision for pre-hearing before lodging of the prosecution. Thus, we answer the Reference as under: (i) Clause 16 (8) of the Control Order does not make it incumbent upon the Collector to afford prior opportunity of hearing before taking a decision to initiate criminal prosecution against salesman of Fair Price Shop run by a cooperative society. (ii) In view of the aforesaid discussion, we have no hesitation in holding that the verdict of the learned Single Judge in Om Prakash Rajput (supra) being an order which is per incuriam, does not exposits the correct position of law, as it has failed to take into consideration the basic ingredients of CrPC and the judgment on the subject of entitlement of an accused to hearing pre-registration of an FIR. Reference is accordingly answered. ....................