Gujarat High Court

Iqbalbhai Ganibhai Piludiya vs State Of Gujarat on 25 August, 2023

Bench: Sandeep N. Bhatt

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 1214 of 2020

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                         IQBALBHAI GANIBHAI PILUDIYA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR K S CHANDRANI(6674) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 25/08/2023
                                ORAL ORDER

1. The present application is filed for seeking following

reliefs:

"(A) This Hon'ble Court may be pleased to allow this petition.

(B) This Hon'ble Court may be pleased to quash and set aside the proceeding of Criminal Case No. 6538 of 2015 pending before the Learned Chief Judicial Magistrate, Rajkot initiated on basis of the FIR being C.R. No. 41 of 2015 registered Malaviyanagar Police Station, Rajkot. with

(C) Pending hearing, admission and final disposal of the application, this Hon'ble Court may kindly be pleased to stay the further proceeding of the Criminal Case No. 6538 of 2015 pending before the Learned ( Main) JMFC Court,

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Rajkot.

(D) This Hon'ble Court may be pleased to pass such other and further relief(s) as may be deemed fit and proper in the interest of justice;"

2. Brief facts of the case as per the case of the

applicant in this application are as such that the

applicant has been granted the license to run the fair

price shop by the Civil Supply Corporation and the

applicant was running his shop in the name and style of

Pandit Dindayal Ghrahak Bhandar (Govt. Approved Fair

Price Shop) at Laxminagar Main Road, Rajkot. It is

further the case of the applicant in this application that

the respondent No. 2 carried out an inspection at the shop of the applicant and during the inspection some

irregularities were found and hence inquiry was held

against the applicant and at the end of the said inquiry

the deposits and fees paid by the applicant was forfeited

and further he was directed to deposit an amount of Rs.

1,23,645/- towards the Losses to the department by way

of an Order dated 10/12/2015. It is further the case of

the applicant in this application that the applicant on

16/12/2015 deposited an amount of Rs. 1,28,646/- with

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the authority as per the aforesaid Order. Hence, , being

aggrieved by the registration of the impugn FIR and

filing of the Charge-sheet cumulating into Criminal Case

No.6538 of 2015, the applicant has preferred this

application.

3. Heard learned advocate Ms. A.A. Bharadwaj for Mr.

K.S. Chandrani, learned advocate for the applicant and

Mr. Chintan Dave, learned Additional Public Prosecutor

(APP) for the respondent - State.

4.1 Learned advocate Ms. A.A. Bharadwaj, representing

Mr. K.S. Chandrani, the applicant, has drawn my

attention to the order dated 8.1.2016 passed by the District Supply Officer. This order, although not part of

the existing record, reveals that the penalty amount was

forfeited through the deposit forfeiture process.

Consequently, the proceedings in response to the

impugned complaint, invoking Sections 3 & 7 of the

Essential Commodities Act, cannot be continued, as the

authorities have already exhausted the procedure for

recovering the amount, which pertains to a civil nature.

Additionally, she has pointed out that the FIR, filed

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back in 2015, lacks adequate justification or proper

reasons. Furthermore, she contends that the imposition of

the penalty by the respondent authority has already

occurred. Therefore, initiating proceedings under the

Criminal Procedure Code based on the same grounds is

entirely inappropriate, unjust, and unreasonable.

Consequently, the proceedings of Criminal Case No. 6538

of 2015 deserves to be dismissed.

4.2 In support of his submissions, she has relied on the

judgment in the case of Verma Roadways versus

Government of N.C.T. Delhi dated 4.8.2023 and

Makemytrip (India) Pvt. Ltd. versus Union of India &

Others dated 1.9.2016. She has further argued that the

applicant should not be compelled to face criminal trial when the alleged misappropriation amount has already

been recovered by the husband. She has also relied on

the judgment in the cases of (i) Mohammed Ibrahim and

Others versus State of Bihar reported in (2009) 8 SCC

751, (ii) All Cargo Movers (I) Pvt. Ltd. versus Dhanesh

Badarmal Jain & Anr. reported in 2008 AIR (SC) 247.

4.3 Furthermore, she has submitted that the dispute is

of the civil nature on the basis of admitted facts and

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allegations, which are made in the F.I.R. are false and

therefore, the same is required to be quashed by

exercising the powers under Section 482 of the Criminal

Procedure Code, 1973 with a view to prevent the abuse

of process of law.

5.1 Per contra, Mr. Chintan Dave, learned Additional Public Prosecutor (APP) for the respondent - State has

drawn my attention to the affidavit-in-reply filed by the

respondent - Authority and has submitted that the

applicant has violated the provisions of the Essential

Commodities Act as well as Rules and Regulations.

Accordingly, the F.I.R. is rightly lodged by C.R. No.II 41

of 2015 with Malaviyanagar Police Station, Rajkot which

culminate the Criminal Case No.6538 of 2015 and has submitted that the grounds urged in the application are

not required to be considered merely on the ground that

on a plane reading of the F.I.R., it can be said that

various illegalities, in the form of misappropriating of the

stock of essential commodities viz., oil, rice, wheat, and

kerosene, etc. and other items, are done by the present

applicant and the same stocks are allotted to the

applicant with a view to distribute the same amongst

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the Rational Card Holders. Therefore, considering the

facts of the case, the present applicant has committed

the offences punishable under Sections 3 & 7 of the

Essential Commodities Act.

5.2 He has also drawn my attention to the fact that

the contention of applicant that he has already been

penalized and amount is forfeited and the same is also

accepted by the authority. He has also submitted that

the said forfeited amount of Rs.5,000/- is imposed as per

the provisions of the Gujarat Essential Commodities

(Lincesing to Fair Prince Shops), 2004 and penalty of

Rs.1,23,645.60/- is imposed as per the provisions of

Resolution dated 17.3.1997 of Department of Food, Civil

Supply and Consumer Affairs, Gandhinagar. Therefore, both the criminal prosecutions, which are forfeited

through security deposit of Rs.5,000/- and penalty of

Rs.1,23,645.60/-, are absolutely different in nature and

considering the different said provisions, no such benefit,

as canvassed by the applicant in the application for

quashing, can be granted to the applicant. Therefore, he

has submitted that the present application is

misconceived and is filed at such a belated stated almost

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after five years of the lodging of the complaint, i.e. the

present application is filed in the year 2020 and no

notice is issued in the application and now proceeding of

criminal case is at the stage of recording of evidence.

Therefore, no fruitful would be served to abort the

proceeding on any count, more particularly, no ground is

made by the applicant for interference under Section 482

of the Criminal Procedure Code, which should also be

otherwise exercised very sparingly and in view of the

judgment of the Hon'ble Apex Court in the case of

Neeharika Infrastructure Pvt. Ltd. versus State of

Maharashtra and Others reported in 2021 SCC OnLine

SC 315, this Court should dismiss this application.

6.1 I have considered the rival submissions made at the bar by the respective parties. It is evident that the

impugned F.I.R. is filed on 20.3.2015 and thereafter,

after almost a delay of five years, the present application

is filed in the years 2020.

6.2 It is fruitful to refer the provisions of Sections 3 &

7 of the Essential Commodities Act, as under:

"Section 3. Powers to control production, supply,

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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, 1[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.

(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide--

(a) for regulating by licences, permits or otherwise the production or manufacture of any essential commodity;

(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food-crops generally or of specified food-crops, and for otherwise maintaining or increasing the cultivation of food-crops generally, or of specified food-crops.

(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use

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or consumption of, any essential commodity;

(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale; 3[(f) for requiring any person holding in stock, or engaged in the production, or in the business of buying or selling, of any essential commodity,--

(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him or,

(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him, to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the order. Explanation 1.--An order made under this clause in relation to foodgrains, edible oilseeds or edible oils, may, having regard to the estimated production, in the concerned area, of such foodgrains, edible oilseeds and edible oils, fix the quantity to be sold by the producers in such area and may also fix, or provide for the fixation of, such quantity on a graded basis, having regard to the aggregate of the area held by, or under the cultivation of, the producers.

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Explanation 2.--For the purpose of this clause, production with its grammatical variations and cognate expressions includes manufacture of edible oils and sugar;]

(g) for regulating or prohibiting any class of commercial or financial transactions relating to foodstuffs 4*** which, in the opinion of the authority making the order, are, or, if unregulated, are likely to be, detrimental to the public interest;

(h) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters;

(i) for requiring persons engaged in the production, supply or distribution of or trade and commerce in, any essential commodity to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the order; 5[(ii) for the grant or issue of licences, permits or other documents, the charging of fees therefore, the deposit of such sum, if any, as may be specified in the order as security for the due performance of the conditions of any such licence, permit or other document, the forfeiture of the sum so deposited or any part thereof for contravention of any such conditions, and the adjudication of such forfeiture by such authority as may be specified in the order;]

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5[(j) for any incidental and supplementary matters, including, in particular, the entry, search or examination of premises, aircraft, vessels, vehicles or other conveyances and animals, and the seizure by a person authorised to make such entry, search or examination,--

(i) of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being, or is about to be committed and any packages, coverings or receptacles in which such articles are found;

(ii) of any aircraft, vessel, vehicle or other conveyance or animal used in carrying such articles, if such person has reason to believe that such aircraft, vessel, vehicle or other conveyance or animal is liable to be forfeited under the provisions of this Act; 7[(iii) of any books of accounts and documents which in the opinion of such person, may be useful for, or relevant to, any proceeding under this Act and the person from whose custody such books of accounts or documents are seized shall be entitled to make copies thereof or to take extracts therefrom in the presence of an officer having the custody of such books of accounts or documents.]] (3) Where any person sells any essential commodity in compliance with an order made with reference to clause (f) of sub-section (2), there shall be paid to him

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the price therefore as hereinafter provided:--

(a) where the price can, consistently with the controlled price, if any, fixed under this section, be agreed upon, the agreed price;

(b) where no such agreement can be reached, the price calculated with reference to the controlled price, if any;

(c) where neither clause (a) nor clause (b) applies, the price calculated at the market rate prevailing in the locality at the date of sale.

8[(3A) (i) If the Central Government is of opinion that it is necessary so to do for controlling the rise in prices or preventing the hoarding, of any food-stuff in any locality, it may, by notification in the Official Gazette, direct that notwithstanding anything contained in sub-section (3), the price at which the food-stuff shall be sold in the locality in compliance with an order made with reference to clause (f) of sub-section (2) shall be regulated in accordance with the provisions of this sub-section.

(ii) Any notification issued under this sub-section shall remain in force for such period not exceeding three months as may be specified in the notification.

(iii) Where, after the issue of a notification under this sub-section, any person sells foodstuff of the kind specified therein and in the locality so specified, in compliance with an order made with reference to clause (f) of sub-section (2), there shall be paid to the

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seller as the price therefor--

(a) where the price can, consistently with the controlled price of the foodstuff, if any, fixed under this section, be agreed upon, the agreed price;

(b) where no such agreement can be reached, the price calculated with reference to the controlled price, if any;

(c) where neither clause (a) nor clause (b) applies, the price calculated with reference to average market rate prevailing in the locality during the period of three months immediately preceding the date of the notification.

(iv) For the purposes of sub-clause (c) of clause (iii), the average market rate prevailing in the locality shall be determined by an officer authorised by the Central Government in this behalf, with reference to the prevailing market rates for which published figures are available in respect of that locality or of a neighbouring locality; and the average market rate so determined shall be final and shall not be called in question in any court.] 9[(3B) Where any person is required, by an order made with reference to clause (f) of sub-section (2), to sell to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government, any grade or variety of foodgrains, edible oilseeds or edible oils in relation to which no notification has been

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issued under sub-section (3A), or such notification having been issued, has ceased to be in force, there shall be paid to the person concerned, notwithstanding anything to the contrary contained in sub-section (3), an amount equal to the procurement price of such foodgrains, edible oilseeds or edible oils, as the case may be, specified by the State Government, with the previous approval of the Central Government having regard to--

(a) the controlled price, if any, fixed under this section or by or under any other law for the time being in force for such grade or variety of foodgrains, edible oilseeds or edible oils;

(b) the general crop prospects;

(c) the need for making such grade or variety of foodgrains, edible oilseeds or edible oils available at reasonable prices to the consumers, particularly the vulnerable sections of the consumers; and

(d) the recommendations, if any, of the Agricultural Prices Commission with regard to the price of the concerned grade or variety of foodgrains, edible oilseeds or edible oils.] 10[(3C) Where any producer is required by an order made with reference to clause (f) of subsection (2) to sell any kind of sugar (whether to the Central Government or to a State Government or to an officer or agent of such Government or to any other person

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or class of persons) whether a notification was issued under sub-section (3A) or otherwise, then, notwithstanding anything contained in sub-section (3), there shall be paid to that producer only such amount as the Central Government may, by order, determine, having regard to--

(a) the fair and remunerative price, if any, determined by the Central Government as the price of sugarcane to be taken into account under this section;

(b) the manufacturing cost of sugar;

(d) a reasonable return on the capital employed in the business of manufacturing of sugar:

Provided that the Central Government may determine different prices, from time to time, for different areas or factories or varieties of sugar:

Provided further that where any provisional determination of price of levy sugar has been done in respect of sugar produced up to the sugar season 2008-2009, the final determination of price may be undertaken in accordance with the provisions of this sub-section as it stood immediately before the 1st day of October, 2009.

Explanation 11[I].-- For the purposes of this sub- section,--

(a) "fair and remunerative price" means the price of

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sugarcane determined by the Central Government under this section;

(b) "manufacturing cost of sugar" means the net cost incurred on conversion of sugarcane into sugar including net cost of transportation of sugarcane from the purchase centre to the factory gate, to the extent it is borne by the producer;

(d) "reasonable return on the capital employed" means the return on net fixed assets plus working capital of a producer in relation to manufacturing of sugar including procurement of sugarcane at a fair and remunerative price determined under this section.] 12[Explanation II.--For the removal of doubts, it is hereby declared that the expressions "fair and remunerative price" referred to in clause (a), "manufacturing cost of sugar" referred to in clause (b) and "reasonable return on the capital employed" referred to in clause (d), of this sub-section do not include the price paid or payable under any order or any enactment of any State Government and any price agreed to between the producer and the grower or a sugarcane growers' co-operative society.] 13[(3D) The Central Government may direct that no producer, importer or exporter shall sell or otherwise dispose of or deliver any kind of sugar or remove any

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kind of sugar from the bonded go downs of the factory in which it is produced, whether such godowns are situated within the premises of the factory or outside or from the warehouses of the importers or exporters, as the case may be except under and in accordance with the direction issued by the Government: Provided that this sub-section shall not affect the pledging of such sugar by any producer or importer in favour of any scheduled bank as defined in clause (e) of section 2 of the Reserve Bank of India Act, 1934 (2 of 1934) or any corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970), so, however, that no such hank shall sell the sugar pledged to it except under and in accordance with a direction issued by the Central Government. (3E) The Central Government may, from time to time, by general or special order, direct any producer or importer or exporter or recognised dealer or any class of producers or recognised dealers, to take action regarding production, maintenance of stocks, storage, sale, grading, packing, marking, weighment, disposal, delivery and distribution of any kind of sugar in the manner specified in the direction.

Explanation.--For the purposes of sub-section (3D) and this sub-section,--

(a) "producer" means a person carrying on the business

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of manufacturing sugar;

(b) "recognised dealer'" means a person carrying on the business of purchasing, selling or distributing sugar;

(c) "sugar" includes plantation white sugar, raw sugar and refined sugar, whether indigenously produced or imported.] (4) If the Central Government is of opinion that it is necessary so to do for maintaining or increasing the production and supply of an essential commodity, it may, by order, authorize any person (hereinafter referred to as an authorized controller) to exercise, with respect to the whole or any part of any such undertaking engaged in the production and supply of the commodity as may be specified in the order such functions of control as may be provided therein and so long as such order is in force with respect to any undertaking or part thereof,--

(a) the authorized controller shall exercise his functions in accordance with any instructions given to him by the Central Government, so, however, that he shall not have any power to give any direction inconsistent with the provisions of any enactment or any instrument determining the functions of the persons in-charge of the management of the undertaking, except in so far as may be specifically provided by the order; and

(b) the undertaking or part shall be carried on in accordance with any directions given by the authorised

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controller under the provisions of the order, and any person having any functions of management in relation to the undertaking or part shall comply with any such directions.

(5) An order made under this section shall,--

(a) in the case of an order of a general nature or affecting a class of persons, be notified in the Official Gazette; and

(b) in the case of an order directed to a specified individual be served on such individual--

(i) by delivering or tendering it to that individual, or

(ii) if it cannot be so delivered or tendered, by affixing it on the outer door or some other conspicuous part of the premises in which that individual lives, and a written report there of shall be prepared and witnessed by two persons living in the neighbourhood. (6) Every order made under this section by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made.

7. Penalties:-

(1) If any person contravenes any order made under section 3,--

(a) he shall be punishable,--

(i) in the case of an order made with reference to

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clause (h) or clause (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

(ii) 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:

35 [Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months;]

(b) any property in respect of which the order has been contravened shall be forfeited to the Government;

(c) any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the commodity shall, if the court so orders, be forfeited to the Government.] 36 [(2) If any person to whom a direction is given under clause (b) of sub-section (4) of section 3 fails to comply with the direction, he shall be punishable 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: 37 [Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of

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imprisonment for a term of less than three months. (2A) If any person convicted of an offence under sub- clause (ii) of clause (a) of sub-section (1) or under sub- section (2) is again convicted of an offence under the same provision, he shall be punishable with imprisonment for the second and for every subsequent offence for a term which shall not be less than six months but which may extend to seven years and shall also be liable to fine: 38 [Provided that the court may, for any adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than six months. 39 [(2B) For the purposes of sub-sections (1), (2) and (2A), the fact that an offence under sub-clause (ii) of clause (a) of sub-section (1) or under sub-section (2) has caused no substantial harm to the general public or to any individual, shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than three months, or six months, as the case may be.

40 [(3) Where a person having been convicted of an offence under sub-section (1) is again convicted of an offence under that sub-section for contravention of an order in respect of an essential commodity, the court by which such person is convicted shall, in addition to any penalty which may be imposed on him under that sub-section, by order, direct that that person shall not

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carry on any business in that essential commodity for such period, not being less than six months, as may be specified by the court in the order.] STATE AMENDMENTS Punjab : Haryana: Chandigarh. --After section 7, insert the following section, namely:-- "7A. Forfeiture of certain property used in the commission of the offence .--Whenever any offence relating to foodstuffs which is punishable under section 7 had been committed, the Court shall direct that all the packages, coverings or receptacles in which any property liable to be forfeited under the said section is found and all the animals, vehicles, vessels or other conveyances used in carrying the said property shall be forfeited to the Government." [ Vide Punjab Act 34 of 1959, sec. 2 (w.e.f. 27-8-1959).] Rajasthan --After section 7, insert the following section, namely:-- " 7A. Same as in Punjab with following proviso: Provided that if the Court is of opinion that it is not necessary to direct forfeiture in respect of all such packages, coverings or receptacles or such animals, vehicles, vessels, or other conveyances or any of them, it may, for reasons to be recorded, refrain from doing so." [ Vide Rajasthan Act 32 of 1960, sec. 2 (w.e.f. 24-9-1960)."

6.3 It is also fruitful to refer the judgment of the

Hon'ble Apex Court in the case of K. Jagadish versus

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Udaya Kumar G.S. and Another reported in (2020) 4 scc

(Cri) 844, more specifically, paragraphs 9 to 13 are

relevant, as under:

"9. In Pratibha Rani v. Suraj Kumar and another1this Court summed up the distinction between the two remedies as under:

"21. ............ There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under Section 406 IPC or render the ingredients of

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Section 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law."

10. In Rajesh Bajaj v. State NCT of Delhi and others2 this Court observed:

"10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or 1 (1985) 2 SCC 370 2 (1999) 3 SCC 258 money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. One of the illustrations set out under Section 415 of the Indian Penal Code [Illustration f] is worthy of notice now:

"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats."

11. The crux of the postulate is the intention of the person who induces the victim of his representation

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and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that the respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the respondent were not clear. He also mentioned that the respondent after receiving the goods had sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities.

12. The High Court seems to have adopted a strictly hypertechnical approach and sieved the complaint through a colander of finest gauzes for testing the ingredients under Section 415 IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simpliciter wherein no semblance of criminal offence is involved."

11. The aforesaid view was reiterated in Kamladevi Agarwal v. State of West Bengal and others as under:

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"9. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending.

After referring to judgments in State of Haryana v. Bhajan Lal4 and Rajesh Bajaj v. State NCT of Delhi2 this Court in 3 (2002) 1 SCC 555 4 1992 Supp (1) SCC 335 Trisuns Chemical Industry v. Rajesh Agarwal5 held: (SCC p. 690, paras 7-8) "7. Time and again this Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions (vide State of Haryana v. Bhajan Lal4 and Rajesh Bajaj v. State NCT of Delhi5).

8. In the last referred case this Court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations: (SCC p. 263, para 10)

10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions."

12. After referring to various decisions it was finally

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concluded as under:

"17. In view of the preponderance of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings."

6.4 - It is also evident that as a result of the aforementioned action, the penalty of Rs.1,23,645.60/- was

imposed in a separate quasi-judicial proceeding in

accordance with the provisions of the Gujarat Essential

Commodities (Licensing to Fair Price Shops), 2004.

Additionally, an amount of Rs.5,000/- was forfeited.

6.5 Prima facie, it appears that both the proceedings,

one for the breach of conditions and the other for the

breach of Sections 3 & 7 of the Essential Commodities

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Act, are different in nature and are prohibited under the

provisions of the law.

6.6 There is no dispute about the ratio laid down in

the judgments cited at the bar by the learned advocate

for the applicant but they are not helpful to the

applicant in the facts of the present case. The dispute at

hand cannot be categorically deemed as purely civil in

nature, particularly given the specific provisions outlined

in Sections 3 & 7 of the Essential Commodities Act.

These provisions mandate that the authorities take action

against the present applicant. Moreover, considering the

fact that the applicant attempted to misappropriate

essential commodities such as oil, rice, wheat, kerosene, etc., intended for distribution among individuals living

below the poverty line and possessing ration cards, the

nature of the offense must be viewed as a crime against

society itself.

6.7 Further, in the judgment of the Hon'ble Apex Court

in the case of Neeharika Infrastructure Pvt. Ltd. versus

State of Maharashtra and Others reported in 2021 SCC

OnLine SC 315, and more particularly para 80 is

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relevant, which is as under:

"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/ or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

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iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities

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and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an

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appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

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xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out

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for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

6.8 - I am of the considered view that the authorities

have not erred in their pursuit of this matter.

Furthermore, the conduct of the applicant needs to be

taken into account when exercising the powers under

Section 482 of the Criminal Procedure Code. The

applicant approached this Court after the filing of the

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F.I.R. in the year 2015, and subsequently, the applicant

paid the said amount in a proceeding concerning with

the Gujarat Essential Commodities (Licensing to Fair