Rajendra S/O Bhaurao Mohod vs State Of Mah. Thr. Pso Ps Kelwad ...
2021 Latest Caselaw 787 Bom

                               1                                   APL407.20
                                                                  & 408.20.odt

            0`IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                       NAGPUR BENCH : NAGPUR.

               CRIMINAL APPLICATION (APL) NO.407 OF 2020
                                 WITH
               CRIMINAL APPLICATION (APL) NO.408 OF 2020


 CRIMINAL APPLICATION (APL) NO. 407 OF 2020

 Rajendra S/o. Bhaurao Mohod,
 aged about 48 years, Occ. Farmer,
 R/o. Ward No. 2, Kawtha,
 Tah. Saoner, Dist. Nagpur.                             . . . . APPLICANT

 .....VERSUS......


 1.       State of Maharashtra through
          Police Station Officer,
          Kelwad Police Station,
          Tah. Saoner & Dist. Nagpur.

 2.       Dinesh Fartade,
          Aged about major, Occ. Service,
          R/o. Office of District Superintendent,
          Agriculture Officer, Kadim Baug,
          Nagpur.

 3.       Pankaj Waghode,
          Aged about Major,
          Occ. Assistant Police Inspector,
          Kelwad Police Station, Nagpur.

          (Deleted as per order dated 01.12.2020.) . . . NON-APPLICANTS

 CRI. APPLICATION (APL) NO. 408 OF 2020

 Nandkishor S/o. Madanlalji Gandhi,
 Aged about 49 years, Occ. Fertilizer Shop,
 R/o. Kelwad, Tah. Saoner, Dist. Nagpur.               APPLICANT

 .....VERSUS......



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                                     2                                           APL407.20
                                                                               & 408.20.odt

 1.       State of Maharashtra through
          Police Station Officer,
          Kelwad Police Station,
          Tah. Saoner & Dist. Nagpur.

 2.       Dinesh Fartade,
          Aged about major, Occ. Service,
          R/o. Office of District Superintendent,
          Agriculture Officer, Kadim Baug,
          Nagpur.

 3.       Pankaj Waghode,
          Aged about Major,
          Occ. Assistant Police Inspector,
          Kelwad Police Station, Nagpur.

          (Deleted as per order dated 01.12.2020.) . . . NON-APPLICANTS
                        Shri S.P.Bhandarkar, Advocate for the applicant (s).
                        Shri T.A.Mirza, APP for the Respondent/State.



                                  CORAM :-         Z. A. HAQ AND
                                                   AMIT B. BORKAR, JJ.

                                  DATED :-         14.01.2021

            ORAL JUDGMENT (Per Amit B. Borkar, J)

            1.       Heard.

2. Rule. Rule made returnable forthwith. Heard by consent

of the learned Advocate and learned APP appearing for the

respective parties.

3. Since both these applications challenge the same First

Information Report, both are being disposed of by common

judgment.

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                                                                          & 408.20.odt




            4.                 By    these   applications,   the     applicants        have

challenged First Information No.152/2020 registered with the

non-applicant no.1 - Police Station for offences punishable

under Sections 420, 468, 471 read with Section 34 of the

Indian Penal Code, 1860, Section 7 of the Seeds Act, 1966,

Section 3 of the Seeds (Control) Order, 1983, Rules 7, 8,

9,10,11, 12, 13 and 14 of the Seeds Rules, 1968, Rule 10 of the

Maharashtra Cotton Seeds (Regulation of Supply, Distribution,

Sale and Fixation of Sale Price) Rules, 2010 and Sections 7 and

15 of the Environment Protection Act, 1986.

5. The First Information Report came to be registered

against the applicants with the allegations that the applicant in

Criminal Application No.407/2020 was found in possession of

banned cotton seeds having value Rs.730/-. In the First

Information Report, there are no allegations against the

applicant in Criminal Application No.408/2020.

6. The applicants, therefore, challenged the

registration of the First Information Report by way of the

present applications. This Court, on 7.8.2020 issued notices to

the non-applicants and directed not to file charge-sheet

4 APL407.20 & 408.20.odt

without leave of this Court. In pursuance of the notice of this

Court, the non-applicant no.1 filed its reply and it is submitted

that the seeds, which were found in possession of the applicant

in Criminal Application No.407/2020 are banned in State of

Maharashtra. It is also submitted that the applicant in Criminal

Application No.408/2020 had sold banned seeds to the

applicant and the same were delivered by one Dinesh Nikhade,

who is working in the shop of the applicant in Criminal

Application no.408/2020. It is stated that since the seeds are

banned in the State of Maharashtra, its sale is in violation of

terms and conditions of license and is in violation of Order 3 of

the Seeds (Control) Order, 1983. The seeds sold by the

applicant in Criminal Application No.408/2020 does not

confirm to the minimum limits of germination and purity.

7. We have carefully considered the contents of the

First Information Report. The offences registered in the FIR

punishable under the provisions of Indian Penal Code are

Sections 420, 468 and 471 are cognizable offences and,

therefore, the Police were within their powers to register the

complaint and commence the investigation. Section 420 of the

Indian Penal Code speaks of punishment for cheating and

dishonestly inducing delivery of property. It clearly requires

5 APL407.20 & 408.20.odt

that a person to be prosecuted for offence punishable under

the said section has necessarily to act in a manner which will

amount to dishonestly inducing other person, who has been

deceived by the act of cheating to deliver any property or

valuable security. In other words, the necessary ingredients of

offence under Section 420 of the Penal Code, 1860 is dishonest

inducement to the person cheated and to deliver the property

or valuable security. Undisputedly, on the face of the First

Information Report in question, it does not disclose any fact

which can constitute or prima facie establish an act of

inducement by the applicants in relation to seeds in question.

Even in the affidavit filed by the non-applicant no.1, there is no

whisper about any material having been disclosed either at the

time of lodging of First Information Report or thereafter which

can prima facie establish the act of inducement and much less

dishonest inducement by the applicants to any person either

to deliver any property or valuable security in relation to the

seeds in question. This being so, there was absolutely no case

made out, on the face of the First Information Report or even

by any other information given alongwith said report by the

complainant, disclosing basic ingredients of offence punishable

under Section 420 of the Penal Code. Insofar as the allegations

6 APL407.20 & 408.20.odt

in the First Information Report having been considered in the

context of offences alleged under Sections 468 and 471 of

Indian Penal Code are concerned, there is no document alleged

in the First Information Report, which has been used for the

purpose of cheating much less fraudulently or dishonestly.

Therefore, we are satisfied that from the allegations in the First

Information Report and the material produced by the

non-applicant no.1 on record that no case is made out

disclosing ingredients of offences punishable under Sections

468 and 471 of the Indian Penal Code.

8. We have also scrutinized the contents of the First

Information Report and other material for the purpose of

considering as to whether the offences under Sections 7 and 15

of the Environment Protection Act, 1966 have been made or

not. Having considered the contents of the provisions of

Sections 7 and 15 of the said Act, we find that there are

absolutely no allegations in the First Information Report that

the applicants have done anything, which has resulted into

discharge or emission of any environmental pollutants in

excess of standards prescribed. Section 15 of the said Act

provides for penalty for contravention of the provisions of the

said Act. Since the allegations in the First Information Report

7 APL407.20 & 408.20.odt

and the material produced by the non-applicant no.1 does not

disclose basic ingredients of offence punishable under Section

15 of the Environmental Protection Act, we are satisfied that

the prosecution cannot be continued against the applicants for

offence punishable under Section 15 of the Environmental

Protection Act.

9. Since, we have held that the contents of the First

Information Report does not disclose any offence under the

provisions of the Indian Penal Code alleged in the First

Information Report, the offences which remain to be

considered are only under the provisions of Seeds Act and

Rules.

10. We have considered the contents of the allegations

in the FIR for scrutinizing fulfillment of ingredients of offence

under Section of the Seeds Act and Rules. From the contents

of the First Information Report, it is stated that the applicant in

Criminal Application No.407/2020 was found in possession of

Seeds, which are banned in the State of Maharashtra. None of

the provisions alleged against the applicants in the First

Information Report prohibits possession of banned seeds. In

the First Information Report, there is no allegation that the

applicant in Criminal Application No.408/2020 has sold seeds

8 APL407.20 & 408.20.odt

in question to the applicant in Criminal Application

No.407/2020. There is no material produced by the

prosecution that the applicant in Criminal Application

no.408/2020 has sold the seeds to the applicant in Criminal

Application no.407/2020.

11. Once it is held that the offences punishable under

the provisions of the Indian Penal Code are not made out, the

remaining offences alleged against the applicants were non-

cognizable offences. Section 155 (2) of the Code of Criminal

Procedure specifically debars the investigation by the Police

Authorities in case of non-cognizable offence without an order

of Magistrate. There being clear provision of debarring the

Police Authorities from investigating into non-cognizable

offence, unless the FIR sufficiently discloses the material which

can be disclosing the cognizable offence, it cannot be said that

the police authorities would be justified in continuing with the

investigation without permission from Magistrate.

12. The Apex Court in case of State of Haryana Vs.

Bhajnlal reported in 1992 Suppl SC 335. In paragraph 102 has

clearly held that condition, which is sine qua non for

registration of the First Information Report is that there must

9 APL407.20 & 408.20.odt

be an information and that information must disclose

cognizable offence.

13. In our view, therefore, continuation of the proceedings

against the applicants would amount to abuse of process of the

Court. We, therefore, pass the following order:

First Information Report bearing No.152/2020 dated

20.06.2020 registered with the non-applicant no.1 - Police

Station for offences punishable under Sections 420, 468, 471

read with Section 34 of the Indian Penal Code, 1860, Section 7

of the Seeds Act, 1966, Section 3 of the Seeds (Control) Order,

1983, Rules 7, 8, 9,10,11, 12, 13 and 14 of the Seeds Rules,

1968, Rule 10 of the Maharashtra Cotton Seeds (Regulation of

Supply, Distribution, Sale and Fixation of Sale Price) Rules,

2010 and Sections 7 and 15 of the Environment Protection Act,

1986.

is quashed and set aside.

Rule is made absolute in the above terms.

                         JUDGE                                      JUDGE

 Ambulkar