Himachal Pradesh High Court
Reserved On: 02.05.2025 vs State Of H.P on 16 May, 2025
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 Neutral Citation No. ( 2025:HHC:14250 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.Revision No. 758 of 2024
Reserved on: 02.05.2025
Decided on: 16.05.2025
________________________________________________
Dharam Chand
....Petitioner
Versus
State of H.P.
...Respondent
__________________________________________________
Coram
The Hon'ble Mr. Justice Sushil Kukreja, Judge
Whether approved for reporting?1
For the petitioner: Mr. G.R. Palsra, Advocate.
For the respondent: Mr. I.N. Mehta, Senior Additional
Advocate General, with Mr. Ankush
Thakur and Mr. Anish Banshtu, Deputy
Advocates General.
___________________________________________________
Sushil Kukreja, Judge
The instant petition has been filed by the petitioner-
Dharam Chand under Section 442 of the Bharatiya Nagrik
Suraksha Sanhita, 2023 (for short 'BNSS') against order dated
28.09.2024, passed by learned Special Judge-II, Mandi, District
Mandi, H.P., in CIS Registration No.36 of 2013, whereby the
application filed by the petitioner-accused under Section 227 of
Cr.P.C. for discharging him in case FIR No.10 of 2022 under
Sections 409, 420, 467, 468, 471, 120-B of the Indian Penal
Whether reporters of Local Papers may be allowed to see the judgment?
2 Neutral Citation No. ( 2025:HHC:14250 )
Code ('IPC') and Section 13(2) of Prevention of Corruption Act,
1988 ('PC Act'), was dismissed.
2. The brief facts, giving rise to the present petition, are
that on the basis of a complaint made by one Lal Chand, Clerk
in the office of HP Milk Federation Mandi Unit at Chakkar, FIR
No.10/2002, dated 01.07.2002, under Sections 409, 420, 467,
468, 471, 120-B of IPC & Section 13(2) of PC Act was registered
against the petitioner and other persons, wherein it was alleged
that some part of the milk which was being brought to H.P. Milk
Federation Mandi Unit at Chakkar, by its officers and officials
from Kataula milk Chilling Centre, was being sold on the way and
the amount received from such sale was misappropriated and
embezzled. Thereafter, an initial inquiry was carried out by ASI
Kapoor Chand, Enforcement North Zone, Dharamshala, in
which, it was found that Dharam Chand, Incharge MCC Kataula
(petitioner herein), used to collect the milk from Co-operative
Societies, Kataula, Riyagri and the Government Live Stock Farm
(GLF), Kamand, from where, it was taken to Milk Federation Unit
plant Chakkar at Mandi, with a challan having a duplicate copy
and the Superintendent, Milk Federation Unit, Chakkar Mandi
after recording the quality and quantity of milk, used to hand over
3 Neutral Citation No. ( 2025:HHC:14250 )
the copy of challan to In-charge MCC Kataula and send the
details of milk received daily to Incharge Manager P & I for
information. At the end of month, the Milk Co-operative Societies
Riyagri, Kataula and GLF Kamand used to send their bills to
Senior Manager Chakkar, through post, who used to send the
said bills to In-charge P & I for further necessary action and the
incharge then used to send those bills to Incharge, MCC Katuala
(petitioner) for verification of the quantity and quality of the milk.
The petitioner used to verify those bills in the same form and
after his verification, such bills again used to reach at in-charge
Manager P&I Chakkar Mandi for further action, who used to
verify those bills in the same form as were verified by in-charge
MCC Kataulan and after verification, those bills were sent for
payment to the account branch and those orders also used to be
counter-signed. Thereafter, the payments were made by way of
cheque to milk societies Riyagri, Kataula and GLF Kamand. In
the inquiry, it was found that for the year June, 1994 to
31.03.1995, 4683 liters of the milk , amounting to the tune of
Rs.37,464/-, for the year April 1995 to 31.03.1996, 12,633 liters
of the milk amounting to Rs.1,10518/-, for the year April, 1996 to
31.03.1997, 9293 liters of milk amounting to Rs.97, 765.50/-, for
4 Neutral Citation No. ( 2025:HHC:14250 )
the year April, 1997 to 31.03.1998,7881 liters of milk amounting
to Rs.84,720/-, for the year April, 1998 to 31.03.1999, 8129 liters
of milk worth Rs. 93,483.50/-, for the year April, 1999 to
31.03.2000, 9666 liters of milk amounting to Rs.1,20,825/- and
for the year April, 2000 to 31.03.2021, 491 liters of milk worth
Rs.6,383/- (in total, the milk of total worth Rs.5,56,656/-) was
received less in the Milk Federation Unit at Chakkar, hence, the
officers and employees of Milk Federation Chakar Unit Mandi
had misappropriated and embezzled the aforesaid government
money. On the basis of aforesaid inquiry, the FIR in question
was registered.
3. Learned Senior Additional Advocate General
submitted that during the course of investigation, it was found
that during the period April, 1999 to March, 2000, the milk to the
tune of Rs.1,15,163.50 was found deposited less in Milk
Federation Chakkar and the petitioner, who was Incharge MCC
Kataula, used to collect milk of Co-operative Societies Kataula,
Riyagari and GLF Kamand and deposit the same at Milk
Federation Chalkar Unit at Mandi. The record of Milk Federation
Chakkar Unit Mandi revealed that the correct figures were not
given and closing balance of milk in the end of month was not
5 Neutral Citation No. ( 2025:HHC:14250 )
being rightly shown in the opening balance of milk on the next
month. Sudhir Chand Katoch, Assistant Manager, P&I, Amar
Nath Gupta, Senior Manager, were not sending the correct
figures and there were counter signatures on some of the
records of Amar Nath Gupta, Senior Manager and Anil Sanyal,
who remained posted as Senior Manager for the year 1990 to
2002 at H.P. Milk Plant Mandi Unit at Chakkar. The
investigation also revealed that the petitioner, who was Incharge
Milk Chilling Centre Kataula and one Ram Singh, MCC Kataula
used to bring milk from MCC Kataula to HP Milk Plant Mandi Unit
at Chakkar in a vehicle and on the way, the petitioner used to sell
some milk and he had nowhere mentioned regarding the sold
milk in the record, nor deposited the sale amount of such milk
anywhere, hence, total 9249 liters of milk amounting to
Rs.1,15,163.50 was deposited less at H.P. Milk Plant Mandi Unit
at Chakkar, thereby, a loss of Rs.1,15,163.50 was caused to the
Milk Plant, Mandi Unit at Chakkar during the year April 1999 to
March, 2000.
4. During the course of trial, the petitioner-accused
moved an application under Section 227, Cr.P.C., with a prayer
to discharge him from the aforesaid offences, on the grounds that
6 Neutral Citation No. ( 2025:HHC:14250 )
from perusal of the charge-sheet, no case is made out to
proceed against him for the alleged offences as he stood retired
from service in the year 2006 and the charge-sheet was filed in
the year 2011 after five years of his retirement and the complete
record of the same was not supplied to him as per mandate of
Section 207, Cr.P.C. It was further averred that after rejection of
his application to supply the complete record, the petitioner had
approached the High Court and even after the order of the High
Court to supply the complete record of the documents, as
contemplated under Section 207 (I to IV) subject to proviso
contained in the Section, the complete documents were not
supplied to him. The documents annexed with the challan,
nowhere make out a prima-facie case against the petitioner
because the FIR in question was registered without any sufficient
evidence as the statements of the witnesses nowhere disclose
any offence having been committed by him.
5. Vide impugned order dated 28.09.2024, the learned
Trial Court dismissed the application preferred by the petitioner-
accused and the charge-sheet was ordered to be returned back
to the Police Station, with a direction to conduct further
7 Neutral Citation No. ( 2025:HHC:14250 )
investigation on the points highlighted in the impugned order and
then to file the charge-sheet , if needed.
6. Being aggrieved and dissatisfied, the petitioner
preferred the instant petition laying challenge to the impugned
order dated 28.09.2024
7. I have heard learned counsel for the petitioner,
learned Senior Additional Advocate General, for the respondent-
State and also gone through the material available on record.
8. The perusal of the record reveals that the petitioner
alongwith co-accused Ram Singh was charge-sheeted for
committing offence under Sections 409, 420, 467, 468, 471, 120-
B of IPC and Section 13(2) of PC Act for causing loss of
Rs.1,15,163.50 to the Milk Federation on the ground that during
the month of April, 1999 to March, 2000, 9249 liters of milk worth
Rs.1,15,163.50 was less deposited at HP Milk Plant Mandi Unit at
Chakkar.
9. Learned counsel for the petitioner vehemently
contended that the petitioner is facing trial since 2002 for no fault
on his part as the case remained under investigation from 2002-
2011 and prima facie no case is made out against him. He
further contended that all the bills were duly verified by the
8 Neutral Citation No. ( 2025:HHC:14250 )
competent authority and even the audit party did not find any
embezzlement and in these circumstances, no role has been
played by the petitioner in misappropriating the money. He also
contended that when the superior officers of the petitioner had
duly verified the bills, there remained no liability on his part. He
further contended that the investigating agency has miserably
failed to prove that the petitioner had caused a loss to the Milk
Federation. He also contended that after taking cognizance,
power under Section 173 (8) Cr. P. C. can not be exercised by
the court suo moto to direct the police to conduct further
investigation. With these submissions, he prayed that there is no
need to conduct further investigation, that too, after a period of
more than 20 years which would result in wastage of time and
also harassment to the petitioner
10. Now the question which arises for consideration
before this court is as to whether the Magistrate can suo moto
direct the police to conduct further investigation in exercise of the
power under Section 173 (8) Cr. P. C. At this stage, it would be
relevant to reproduce Section 173(8) of Cr.P.C., which reads as
under:-
"Section 173(8), Cr.P.C.: Nothing in this section shall be
deemed to preclude further investigation in respect of an
9 Neutral Citation No. ( 2025:HHC:14250 )
offence after a report under sub-section (2) has been
forwarded to the Magistrate and, where upon such
investigation, the officer-in-charge of the police station
obtains further evidence, oral or documentary, he shall
forward to the Magistrate a further report or reports
regarding such evidence in the form prescribed; and the
provisions of sub-sections (2) to (6) shall, as far as may
be, apply in relation to such report or reports as they
apply in relation to a report forwarded under sub-section
(2)."
11. Law is no more res integra and stands settled in
regard to the ambit and scope of Section 173 (8) of the Cr.PC in
the judgment passed by the Hon'ble Supreme Court in the case
of Vinubhai Haribhai Malaviya and others Vs. State of
Gujarat and another, (2019) 17 SCC, 1 wherein it is held as
under:-
"42. There is no good reason given by the Court in
these decisions as to why a Magistrate's powers to order
further investigation would suddenly cease upon process
being issued, and an accused appearing before the
Magistrate, while concomitantly, the power of the police
to further investigate the offence continues right till the
stage the trial commences. Such a view would not accord
with the earlier judgments of this Court, in particular,
Sakiri (supra), Samaj Parivartan Samudaya (supra),
Vinay Tyagi (supra), and Hardeep Singh (supra);
Hardeep Singh (supra) having clearly held that a criminal
trial does not begin after cognizance is taken, but only
after charges are framed. What is not given any
importance at all in the recent judgments of this Court is
Article 21 of the Constitution Page - 5 of 7 and the fact
that the Article demands no less than a fair and just
investigation. To say that a fair and just investigation
would lead to the conclusion that the police retain the
power, subject, of course, to the Magistrate's nod under
Section 173(8) to further investigate an offence till
charges are framed, but that the supervisory jurisdiction
of the Magistrate suddenly ceases mid-way through the
pre-trial proceedings, would amount to a travesty of
10 Neutral Citation No. ( 2025:HHC:14250 )
justice, as certain cases may cry out for further
investigation so that an innocent person is not wrongly
arraigned as an accused or that a prima facie guilty
person is not so left out. There is no warrant for such a
narrow and restrictive view of the powers of the
Magistrate, particularly when such powers are traceable
to Section 156(3) read with Section 156(1), Section 2(h),
and Section 173(8) of the Cr.PC, as has been noticed
hereinabove, and would be available at all stages of the
progress of a criminal case before the trial actually
commences. It would also be in the interest of justice that
this power be exercised suo motu by the Magistrate
himself, depending on the facts of each case. Whether
further investigation should or should not be ordered is
within the discretion of the learned Magistrate who will
exercise such discretion on the facts of each case and in
accordance with law. If, for example, fresh facts come to
light which would lead to inculpating or exculpating
certain persons, arriving at the truth and doing substantial
justice in a criminal case are more important than
avoiding further delay being caused in concluding the
criminal proceeding, as was held in Hasanbhai Valibhai
Qureshi (supra). Therefore, to the extent that the
judgments in Amrutbhai Shambubhai Patel (supra), Athul
Rao (supra) and Bikash Ranjan Rout (supra) have held to
the contrary, they stand overruled. Needless to add,
Randhir Singh Rana v. State (Delhi Administration)
(1997) 1 SCC 361 and Reeta Nag v. State of West
Bengal and Ors. (2009) 9 SCC 129 also stand overruled."
12. Hence, in the light of the judgment as referred above,
even after taking cognizance, power under Section 173 (8) Cr. P.
C. can be exercised by the Magistrate suo moto to direct the
police to conduct further investigation. Article 21 of the
Constitution of India mandates that all powers necessary, which
may also be incidental or implied, are available to the Magistrate
to ensure a proper investigation which, without doubt, would
11 Neutral Citation No. ( 2025:HHC:14250 )
include the ordering of further investigation after a report is
received by him under Section 173(2), Cr.PC.
13. Keeping in mind the aforesaid principles and position of
law and reverting back to the case in hand, the perusal of the
material available on record reveals that the investigation has not
been conducted properly as to the factum of deposition of money
in Govt. Treasury vide TR-V bills regarding the milk sold during
the transit. The learned Trial court rightly held that in such
circumstances, when the proper investigation has not been
conducted on the said aspect of the case, at this stage, the
accused cannot be discharged, but it is in the interest of justice
that the investigating agency should be directed to conduct
further investigation on the aspect of sale of milk and deposition
of sale proceeds in advance or otherwise after the sale vide TR-
V bills in Govt. Treasury and, if any, embezzlement is further
found then the charge sheet be filed after complete investigation
on all aspects of the case.
14. Thus, in view of aforesaid discussion, this Court finds
that the learned Court below had passed a reasoned order,
which was well within its power and, as such, the order under
revision, being in accordance with law, requires no interference
12 Neutral Citation No. ( 2025:HHC:14250 )
by this Court. Accordingly, the present revision petition, being
devoid of any merits, is dismissed, so also the pending
miscellaneous application(s), if any.
( Sushil Kukreja )
May 16, 2025 Judge
(VH)
