Soni Medical Stores Through The ... vs The State Of Maharashtra, Through ...
2003 Latest Caselaw 416 Bom

JUDGMENT

J.G. Chitre, J.

1. The petitioners are hereby taking exception to the investigation in respect of CR No. I 90 of 1994 in context with the complain filed by Municipal Council, Malegaon against the present petitioners alleging that they committed the offence punishable under section 420, 468 read with 34 of IPC and offences punishable under section 37 of the Essential Commodities Act, 1955 (hereinafter referred to as the Essential Commodities Act for convenience).

2. The petitioners submitted tender to Municipal Council, Malegaon for supplying number of medicines along with other tenderers. The tender of the petitioners was accepted by the Municipal Council, Malegaon and some orders were placed with them. The petitioners supplied some medicines to them. Thereafter the concerned officer from Municipal Council, Malegaon filed a complaint in Killa Police Station, Malegaon alleging the commission of offences mentioned above by the petitioners. The said investigation progressed, continued till a report was submitted by the investigating officer to concerned Judicial Magistrate, First Class, Malegaon on 27.12.2002. Vide the said report, the investigating officer Shri Wabale prayed for closing the said investigation and for grant of "A summary". The learned Magistrate passed the order on 17.2.2003 which can be reproduced ad verbatim as follows :-

"Perused the report of P.I. of Killa Police stn. and report given by Sub- Divn. Police Officer, Malegaon. A Summary is granted as prayed. The Muddemal property receipt books be given to the accused after appeal period is over."

The said order is also being challenged by the petitioners by this writ petition.

3. Smt. Purohit, counsel appearing for the petitioners, submitted that the medicines were supplied to the Municipal Council, Malegaon in accordance with the tender accepted by it and the rates quoted in the said tender which included other charges like transport, hamali, etc. It being so, the price is bound to be more than the prices which are prevalent in the market. Apart from that, she submitted that the Malegaon Municipal Council officers did not take any interest in the matter of investigation. No documents were produced by the concerned officers of Malegaon Municipal Council helping the case of the investigation and the investigation continued till a report was submitted by the investigating officer to the Court on 27.12.2002. She submitted that the investigating officer himself prayed to the learned Magistrate that the said investigation be closed and "A Summary" be granted. She submitted that when it is so, the said prosecution needs to be quashed by allowing this writ petition.

4. Shri Saste, Additional Public Prosecutor appearing for the prosecution did his best to support the interest of the prosecution but he had to admit that a report was submitted by the investigating officer praying for "A Summary" and closing of the investigation.

5. If the said report is perused independently, it shows that the Malegaon Municipal Council filed a civil suit against the petitioners for claiming damages as compensation in respect of the cause which has been covered by this complaint. When it is so, the controversies, allegations, counter allegations, claims, counter claims and disputes would be considered by the competent civil court where the said suit is pending for adjudication. When no document was produced in context with the investigation in question, it impliedly means that Malegaon Municipal Council is not interested in pursuing of this investigation and pursuing the complaint made by it. It is pertinent to note that while passing the order granting "A summary", the learned Magistrate had sought the opinion of Sub- Divisional Police officer, Malegaon also. It means implicitly that the said report has been considered, approved by the senior police officers. Had there been anything concerning the commission of the offence which is punishable under the provisions of the Drugs and Cosmetics Acts, those senior officers would not have consented to the prayer made by the investigating officer of Killa Police Station, Malegaon who prayed for closing of the said investigation and grant of "A summary". An appropriate weightage will have to be given to the said acts of those concerned officers who were concerned with the investigation in context with the complaint which was lodged by Malegaon Municipal Council.

6. In the matter of State of West Bengal and others, v. Swapan Kumar Guha and others, , the Supreme Court observed that if an offence is disclosed, the High Court under Art. 226 of the Constitution will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed. But it cannot be said that an investigation must necessarily be permitted to continue and will not be prevented by the Court at the stage of investigation.

7. The Supreme Court further observed in the same case that where an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If, on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence. If, on the other hand, the Court on a consideration of the relevant materials is satisfied that no offence is disclosed, it will be the duty of the Court to interfere with any investigation and to stop the same to prevent any kind of uncalled for and unnecessary harassment to an individual.

8. Attending the office of the investigating officer for the purpose of investigation and the Court in connection with that, causes hardship to involved person. He is put to annoyance and monetary expenditure in context with transport, engaging a lawyer to defend himself. He is required to take him of from his normal and regular occupation which happens to be generally a matter of wherewhittal for him. In addition to that, attending the office of the concerned investigating officer for investigation and the Court in context with the case or the prosecution is likely to put such a person to social stigma and social embarrassment also. When investigation is continued for longer period, it adds the salt to the injury and the annoyance and the hardship gets magnified. When there is no case for permitting the continuation of such investigation, the Court has to exercise the power and jurisdiction conferred by Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code for convenience).

9. When the same cause is being taken care of by a civil suit filed by the aggrieved party in the court of competent civil jurisdiction, such investigation loses its utility and value. When the points in controversy are subject matter of a judicial adjudication by a competent civil court, the said investigation should not be permitted to be continued at the cost of such person who would be put to all such types of disadvantages quoted above, when investigating agency has itself decided to close it.

10. In the present case, the Malegaon Municipal Council has filed a civil suit and it is still pending in the court of competent civil jurisdiction. Malegaon Municipal Council officers did not assist the investigating machinery in probing the said complaint. The investigating officers report is against continuation of prosecution in that context.

11. When that is so, this writ petition will have to be allowed and the said investigation, the resultant prosecution will have to be quashed, which the learned Magistrate has not done properly, may be by keeping in view the pendency of this petition in the High Court.

12. Thus, the said prosecution is quashed. The petitioners have been exonerated from the said investigation which has been closed and resultant prosecution which is concerned with the said Court of Judicial Magistrate, First Class at Malegaon. They need not attend the said police station in context with the present investigation and prosecution. Bonds, if any, produced by them stand discharged.