Ayush Agrawal vs The State Of Madhya Pradesh
2021 Latest Caselaw 1724 MP

                               ... 1 ...           M.Cr.C.No.12505/2021


            HIGH COURT OF M.P. BENCH AT INDORE
           S.B : HON'BLE JUSTICE SHRI SHAILENDRA SHUKLA
                   M.Cr.C. No.12505/2021
              (AYUSH AGRAWAL vs. STATE OF M.P.)
Indore dt.3.5.2021
      Heard the learned counsel through video conferencing.
      Shri S.K. Vyas, learned Senior Advocate with Shri A.
Choudhary, learned counsel for the applicant.
      Shri Hemant Sharma, Public Prosecutor for State.
                               ORDER

Submissions were made on the application filed under Section 439 of Cr.P.C. The applicant has been implicated in crime No.440 of 2020, registered at police station Badgonda, Mhow, district Indore, for the offence punishable under Sections 420, 465, 467, 468, 471, 186 and 120B of IPC and under Section 3/7 of Essential Commodities Act.

2. The facts as narrated in the application are that SDM Abhilash Mishra received information regarding misappropriation of Ration provided by the State and distributed to the people below poverty line. An Enquiry Commission of 3 persons were constituted and it was found that one Mohan Agrawal who was transporter for Civil Supplies Corporation had formed a syndicate and he along with the aid of present applicant (Ayush Agrawal), Lokesh Agrawal, Mohit Agrawal and other co-accused persons had misappropriated the Government supply Ration substituting the same with very cheap quality of rise and selling of the Government quality superior Ration in open market at a higher price. The Modus Operandi doing so was that Government Ration was used to be unloaded by Mohanlal in his warehouse and his son's warehouse namely Mohit Agrawal who was running a entity called Harshit Traders. Thus, on the basis of report of the enquiry, FIR was registered against the accused persons under the aforesaid provision of law and charge sheet has been filed in the matter.

3. The grounds which have been contained in the application are ... 2 ... M.Cr.C.No.12505/2021

that the applicant is in jail since 22.10.2020 and the charge sheet has been filed on 13.1.2021 and there is no need of the present applicant in the investigation and the trial shall take considerable amount of time for its final decision. It has been further stated that the present applicant is a trader and is involved in the business of selling 'Tukdi' rice through his firm namely M/s. Ayush Foods. It has been alleged that the applicant supplies poor quality of rice to M/s. Harshit Traders and has allegedly forged the bills. It has been submitted that no seizure of any Ration has been made from the present applicant and mere selling of rice to M/s. Harshit Traders does not collect the present applicant with the instant case inasmuch as there is no evidence on record to show that the present applicant had knowledge of fact that his rice was being sold in the market as Government approved rice. It is submitted that mere selling of rice to M/s. Harshit Traders is not a sufficient circumstance to connect the present applciant with the aforementioned crime.

4. It is further submitted that the SDM on his own, formed an Enquiry Commission and assumed the role of investigating agency by summoning witnesses, regarding statements and by demanding/seizing documents from the accused persons. It is submitted that SDM has no such jurisdiction or power under the Cr.P.C where he could have taken the investigation upon himself. It is further submitted that in such a case provisions of suo motu the Commission of Enquriy Act, 1950 come into play for which there has to be a resolution by the State Government for the purpose of forming the said Commission and also no permission has been sought from the State Government and therefore, all the proceedings of such Commission are vitiated including the statement given by the present applicant before SDM and hence cannot be used against him. Even otherwise, the statement given by the applicant before SDM would hit by Section 24 of the Indian Evidence Act inasmuch as it would be a confession made by accused before a person in authority and hence would be rendered irrelevant in the criminal proceedings.

... 3 ... M.Cr.C.No.12505/2021

5. It has been also submitted that the prosecution has also arrayed accused persons under Section 186 of IPC for which private complaint has to be filed and the Courts should not be able to take cognizance on the same in view of the bar created under Section 195 of Cr.P.C and the said bar cannot be evaded by adding other offence under the IPC.

6. In support of the bar under Section 195 of Cr.P.C a judgment of High Court ad-judicature at Allahabad has been filed which is Smt. Saroj Mishra v/s. State of U.P. & Anr. which is an order delivered in application filed under Section 482 of Cr.P.C which is numbered as Application No.15919/2013. On these grounds bail has been sought.

7. As far as the judgment of Allahabad High Court is concerned, the facts were such that in order to falsely implicate the accused who was in jail at the time of incident, some documents were fabricated so as to show his implication in the offence. Thus, the Court was misled by submitting fabricated false documents and therefore, in such circumstance, the provisions of Section 195 of Cr.P.C were applicable and filing of written complaint had become mandatory, which is not so in the present case. In the present case, false evidence has not been created during the proceedings of the Court in order to mislead the Court. The matter involves forgery of bills so as to hoodwink the authorities and therefore, provisions of Section 195 of Cr.P.C would not be applicable as far as Sections 420, 465, 467, 468 and 471 of IPC are concerned. As far as Section 186 of IPC is concerned, this offence punishes voluntary obstructing of any public servant in the discharge of his public function and Section 195 of Cr.P.C provides that Court can take cognizance only on complaint in writing of the public servant. As far as present case is concerned, the FIR has been registered on the basis of written complaint of the public servant, ie., Tehsildar and therefore, there is no bar in taking cognizance of the case.

8. Regarding the other objection that the SDO could not have ... 4 ... M.Cr.C.No.12505/2021

constituted a committee and given the report in the manner of a Enquiry Commission without the approval of the State Government, this objection is also liable to be rejected because the complaint could have been lodged only after an appropriate enquiry into the allegations which had come to light before the SDO. Without the aforesaid ground work, it was not possible to focus upon the various irregularities and role of the persons in committing such irregularities. Such public servant as SDO are presumed to be authorized to make enquiries so that the various functionaries carrying out the task on behalf of the Government may not deviate and indulge in irregularities/illegalities.

9. A perusal of the case diary shows that Mohanlal Agrawal who was an authorized transporter of Government Ration on behalf of Civil Supplies Corporation, was not unloading the complete food grains at the designated destination, but was unloading the same in his own godown as also in the godown of M/s. Harshit Traders which belonged to his son Mohit (co-accused). The Government Ration which included better quality of rice thus did not reach the poor population who were authorized to consume the same. Instead after unloading the food grains in afore stated godowns, low quality and cheap rice would be purchased from local market and would be dispatched to the Ration shops showing it to be Government Ration. The high quality rice which was unloaded in the godown of Mohanlal and M/s. Harshit Traders used to be sold in the open market or to the Rice Mills at a high price and thereby not only the general public was made to consume sub-standard quality of food grains, but the accused persons would mint money by selling Government food grains in open market.

10. As far as the role of present applicant Ayush is concerned, he was also involved in the syndicate formed by Mohanlal Agrawal and as per the conspiracy the owner of M/s. Harshit Traders, ie., Mohit (son of Mohanlal) had made an arrangement with Ayush Agrawal as per which Ayush Agrawal would generate bills showing that he had ... 5 ... M.Cr.C.No.12505/2021

transported low quality rice to M/s. Harshit Traders whereas there was no such actual transportation of rice by Ayush Agrawal. From Ayush Agrawal two forged bills have been seized showing transport of 296 quintals of rice to M/s. Harshit Traders. As per Ayush Agrawal he had obtained the aforesaid rice from M/s. Soni Trading Corporation and had delivered the same rice to M/s. Harshit Traders. However, the Proprietor of M/s. Soni Trading Corporation namely Nand Kishore Soni has, as a witness stated that this was not the rice which he had supplied to Ayush Agrawal. Further in the bill the rice has been shown to be transported in truck bearing registration No.M.P. 09 K.A. 2566. However, on ascertaining from RTO, it was found that no such registration number has been given to any vehicle by M.P. RTO. It has also been found that these bills which were presented by Ayush Agrawal were procured by him from one Ayush Gupta and Ayush Gupta was asked by Deepesh Agrwal, a relative of Mohanlal to give such forged bills to Ayush Agrawal. The bills which had been sent by M/s. Soni Trading Corporation to Ayush Agrawal did not match with the bill in possession of Ayush Agrawal. Thus, Ayush Agrawal was involved in a very complex procedural system devised by Mohanlal Agrawal in order to run parallel illegal business of diverting food grains meant for the public distribution. In such times when the State Population was weathering the Corona pandemic, the syndicate run by Mohanlal including the present applicant were indulging in such illegal business activities at the expense of people living below poverty line who were being deprived of proper quality of grains, thereby putting their health at risk.

11. Hence, after due consideration, looking to the gravity of offence, it would not be appropriate to grant bail to the present applicant. The bail application stands rejected.

(SHAILENDRA SHUKLA) JUDGE SS/-

Digitally signed by SHAILESH MAHADEV SUKHDEVE Date: 2021.05.08 10:48:03 +05'30'