Madhya Pradesh High Court

Sunil Dubey vs The State Of Madhya Pradesh on 16 September, 2021

Author: Vishal Mishra

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              The High Court of Madhya Pradesh
                           M.Cr.C.No.48155 of 2019
                (Sunil Dubey and others Vs. State of Madhya Pradesh)

Jabalpur, Dated :16.09.2021
         Shri Sharad Verma, learned counsel for the petitioner.

         Shri Sanjeev K. Singh, learned panel lawyer for the respondent/

State.

With the consent of the parties, the matter is finally heard.

The present petition under Section 482 of the Cr.P.C is being filed

against the order dated 27.09.2019 passed by the learned Second

Additional Sessions Judge, Bhopal in Criminal Revision No.599/2011

whereby, the order dated 16.12.2009 passed by the Chief Judicial

Magistrate, Bhopal in Criminal Case No.3472/2009 has been quashed.

It is alleged that in pursuance to some information received from an

unknown persons regarding illegal selling of Gas cylinders, the Station

House Officer of Police Station, Shahpura District Bhopal while on

patrolling duty on 01.11.2008 found that gas cylinders were being

supplied to the customers without booking and on a higher price.

Immediately an action was taken by him and he found that the Gas

cylinders were loaded in a vehicle bearing Registration No.MP-09/KA-

8141 and Matador bearing Registration No.MP 08/D-5078 and the

aforesaid vehicle was seized. The counting of the Gas cylinders were

done and the truck was found carrying 300 Gas cylinders. Out of which,

63 were filled and 237 were empty cylinders. The other vehicle Matador

was having 46 Gas cylinders in which 7 were filled and 39 were empty

cylinders. The driver of the vehicle was not having valid documents with

respect to possession of those cylinders. It was alleged that they were

supplying the cylinders on a higher rate than actual cost of the cylinders,

therefore, the offence was got registered against the petitioners. It is

argued that on representation being made by the petitioners, the matter

was got investigated by the senior police officials and he has found that

no such incident has taken place as the officer who has searched the

vehicles was not even aware of the fact that to whom the cylinders were

sold and on which cost they were sold even in terms of Section 13 of the

Essential Commodities Act, 1955 the search is required to be made by

Gazetted Officer duly authorized but in the present case, the so called

Investigating Officer was not a competent authority to carry out the search

and further investigation. The report dated 25.11.2008 was submitted by

him to the Inspector General of Police and considering the aforesaid

report, the learned Chief Judicial Magistrate has refused to take

cognizance into the matter and passed the order dated 16.12.2009. A

revision was preferred against the aforesaid order before the Revisional

Court and after due consideration in the matter by the Revisional Court,

the Revisional Court has set aside the order dated 16.12.2009, considering

the fact that the matter is yet to be investigated by the Authorities and no

cognizance in the matter has been taken by the Courts. Merely on the

basis of the report submitted by the police authorities, it is not proper to

accept the closure report. The Magistrate is having every right to accept or

deny the closure report submitted by the Authorities for which reliance is

placed on a judgment passed by the Hon'ble Supreme Court in the case of

Nupur Talwar Vs. C.B.I., Delhi reported in AIR 2012 SC 847.

It is argued that there is no material or substance available on

record to show that the officer who has carried out the search was

competent. The aforesaid aspect was considered by the Revisional Court

in para 8 of the judgment wherein, it is categorically observed that the

officer who has conducted the search was not a Gazetted Officer even in

terms of Liquified Petroleum Gas (Regulation of Supply & Distribution)

Order, 2000 but the Court is of the opinion that the Authority was not

competent to carry out the search and subsequent investigation, therefore,

the entire proceedings taken by the authorities is illegal. He has relied

upon the judgment passed by the Court in the case of Bunty Gupta Vs.

State of M.P. and others being M.Cr.C.No.6729/2015, order dated

30.09.2015, wherein considering the Madhya Pradesh Distribution

System (Control) Order, 2009 it was found that the competent authority

has not carried out the search and investigation into the matter. The FIR

registered under the Essential Commodities Act was quashed. He has

further relied upon the judgment passed by the Supreme Court in the case

of P.Vijayan Vs. State of Kerela and another, Criminal Appeal

No.192/2010 decided on 27.01.2010 wherein it is held that :-

"10. A Judge is not a mere Post Officer to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused."

It is argued that the enquiry report submitted by the DIG on

25.11.2008 does not disclose any offence being committed by the

petitioner. In such circumstances, the order passed by the Chief Judicial

Magistrate dated 16.12.2009 was just and proper. The Revisional Court

has committed an error in setting aside the order without any basis,

therefore, the petition under Section 482 of Cr.P.C. is being filed for

quashment of the order passed by the learned Revisional Court.

Per contra, learned counsel for the State has vehemently opposed

the prayer and has contended that the order passed by the Revisional

Court is just and proper looking to the facts and circumstances of the case

and the same does not call for any interference in the inherent jurisdiction

under Section 482 of Cr.P.C. It is argued that it is settled legal position

that the inherent powers granted under Section 482 should sparingly

exercised and in exceptional circumstances and cases. In the present case,

there is ample material available against the petitioners which is clearly

reflected from the statements of witnesses recorded under Section 161

Cr.P.C. that the petitioners were involved in selling Gas cylinders at a

higher rate without any authority. He has read over the statement recorded

under Section 161 Cr.P.C. It is argued that at the time of acceptance of the

closure report or at the time of framing of charges by the Trial Court, the

Trial Court is only required to see a prima facie material available against

the accused. He cannot go into the defence which has been putforth by the

accused. The learned Revisional Court has rightly found that prima facie

sufficient material is available against the accused for registration of FIR

against him. The witnesses have categorically stated regarding selling of

Gas cylinders at a higher rate by the petitioners. The seizure memo which

has been prepared clearly shows the presence of filled and empty

cylinders in both the vehicles. In such circumstances, the Revisional

Court has rightly exercised the powers and has set aside the order passed

by the learned Trial Court. He has relied upon the judgment passed by the

Hon'ble Supreme Court in the case of State of Orissa Vs. Devendra

Nath Padhi, reported in AIR 2005 SC 359. He has prayed for dismissal

of the petition.

Heard the learned counsel for the parties and perused the record.

From the perusal of the record, it is seen that with respect to the

incident registered against the petitioner and on a representation the

enquiry was got conducted by the senior police officer and he has

submitted an enquiry report on 25.11.2008. From the perusal of the

enquiry report it is seen that there are several lacuna found by the enquiry

officer, as the investigating authority was not competent to make search

and thereafter investigate the case as in such cases only the Gazetted

Officers is required to make out a search. In absence of the authority, the

entire exercise carried out by the police officer is a futile exercise. It is

further seen from the report that the officer conducting the search could

not even show that how many cylinders were sold by the accused persons

to whom they were sold and on what prices they were sold. In absence of

the material constituting the offence against the petitioners, no criminal

proceedings could have been initiated against them. The learned Trial

Court has right considered the aforesaid aspect and has quashed the

proceedings.

It is a settled legal proposition held by the Supreme Court in the

case of State of Haryana Vs. Bhajanlal reported in 1992 Suppl. SCC

335 wherein the Hon'ble Supreme Court has considered the scope of

Article 226 of the Constitution of India and the provision of Section 482

of Cr.P.C. inherent powers for quashing the FIR and another criminal

proceedings and has laid down guidelines which are as under :-

"10. In the case of State of Haryana and others Vs. Bhajan Lal and others, reported in 1992 (Suppl.) (1) SCC 335, the Apex Court

has laid down the principle of law, which enunciate in a series of decisions relating to the exercise the inherent powers under Section 482 of Cr.P.C and formulated the following guidelines:-

"The Court in the backdrop of interpretation of various relevant provisions of the Cr.P.C under ChapterXIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482, Cr.P.C gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised:-

(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or made out a case against the accused.

(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.

(3) Where the un-controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.

(5) Where the allegations made in the Fir or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a special provisions in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

The case of the petitioner is clearly falling under the aforesaid

guidelines issued by the Hon'ble Supreme Court.

The Coordinate Bench of this Court in the case of Bunty Gupta

(supra) has also considered the aspect of investigation being carried out

by an incompetent authority and has held as under :-

"12. Clause 11(5) of the M.P. Public Distribution System (Control) Order, 2009 also provided that the Collector is only authorized to initiate action under Section 7 of the Act, if there is any violation of the PDS Order or the Control Order.

13. The Police party headed by Asstt. Sub-Inspector Shri P.S.Yadav has not obtained any prior permission from the Collector before registered the FIR or for seizing the articles. The FIR lodged by the ASI Shri P.S. Yadav on his own instance or on his own motion is a clear abuse of the process of law. Violation of any Control Order has not been expressly shown by the Police in the FIR. Therefore, it is not clear which Control Order has actually been violated.

14. In these circumstances, the petitioner cannot be punished under Section 7 of the Act. The prosecution at the instance of police authority against the petitioner is bad in the eyes of law and deserves to be quashed."

In the present case as it has been held by the Trial Court as well as

the Revisional Court that the Authority conducting the search and

investigation was not a competent authority, which is also reflected from

the enquiry report (enquiry conducted by senior police officer), therefore,

the proceedings initiated against the petitioners by incompetent authority

are not permissible. Accordingly, the order passed by the learned Trial

Court was just and proper and the order passed by the Revisional Court

dated 27.09.2019 passed in Criminal Revision No.599/2011 is

unsustainable and is hereby set aside. The order passed by the learned

Trial Court dated 16.12.2009 is affirmed.