Madhya Pradesh High Court
Mahendra Kumar Sharma vs The State Of Madhya Pradesh on 20 March, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 M.Cr.C. No. 48206 of 2022
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 20th OF MARCH, 2025
MISC. CRIMINAL CASE No. 48206 of 2022
MAHENDRA KUMAR SHARMA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Nitin Agrawal - Advocate for applicants.
Dr. Anjali Gyanani - Public Prosecutor for respondent/State.
ORDER
This application, under Section 482 of Cr.P.C., has been filed for
quashment of FIR in Crime No.179 of 2022 registered at Police Station Isagarh,
District Ashoknagar (M.P.) for offence under Sections 3, 7 of Essential
Commodities Act, as well as subsequent proceedings pursuant to the FIR.
2. Challenging the FIR, it is submitted by counsel for applicants that applicant
No.1 is the manager of Sewa Sahakari Samiti, Pipariya and applicant No. 2 is the
salesman of the fair price shop, which is being run and managed by Sewa
Sahakari Samiti, Pipariya. On 13/5/2022, an FIR in Crime No.179 of 2022 has
been registered against applicants on the written complaint/correspondence of the
SDO (Revenue) dated 13/5/2022 submitted by Junior Supply Officer, Isagarh. As
per the complaint, it was alleged that the Naib Tahsildar and Junior Supply
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Officer visited the fair price shop, and the shop was found closed. Thereafter,
applicant No.2 was called and physical inspection of the shop was carried out.
During physical inspection, the stock register was not produced, the notice board
was not displayed and on physical verification 42 kilograms of rice and 536
kilograms of gram were found short. Accordingly, a request was made to register
an FIR under Section 3/7 of the Essential Commodities Act for violation of
Clauses 10(3)(4), 11(1)(3)(9), 13(1)(2), 15(4) and 18 of the Madhya Pradesh
Public Distribution System (Control) Order, 2015 (for short "Control Order,
2015").
3. It is submitted by counsel for applicants that a show-cause notice dated
9/5/2022 was issued by the SDO (Revenue), Isagarh to the applicants alleging
violation of the Control Order, 2015. The said show-cause notice was duly replied
by applicants denying contravention/violation of any of the conditions mentioned
in the Control Order, 2015.
4. It is submitted that sub-clause (2) of Clause 14 of the Control Order, 2015
provides that in case of violation under Clause 13 for quantity more than 10%
monthly allocation or repetition of violation under the same clause, a person shall
mandatorily be prosecuted under Section 7 of the Essential Commodities Act.
However, it is submitted that there is no finding with regard to the shortage of
more than 10%. It is submitted that the SDO (Revenue) had directed for
registration of FIR without considering the defence of applicants, and
accordingly, the opportunity of hearing should have been given to applicants
before registration of FIR.
5. It is submitted that the police has also filed a charge sheet. It is further
submitted that as per the Control Order, 2015, an FIR can be lodged only on the
report of the Collector, which has not been done, and accordingly, not only the
FIR but even the charge sheet is liable to be quashed.
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6. Heard learned counsel for the applicant.
7. The main question for consideration is as to whether the FIR can be lodged
only on the recommendation of the Collector or not?
8. The aforesaid question is no more res integra.
9. This Court, by order dated 19/01/2017, passed in the case of Jagdish
Kushwah Vs. State of MP in MCRC No.2643/2011 (Gwalior Bench), has held
that in the absence of the word "only," it cannot be said that no other person can
put the criminal investigating agency into motion except the Collector and it has
been held as under:
Thus, it is clear that the insertion/addition of word "Only" in
Clause 11.5 of M.P. Public Distribution System (Control) Order, 2009
would limit the meaning of word "Cognizable" used in Section 10-A
of the Essential Commodities Act, 1955, which is not permissible.
Thus, if the word "Only" is inserted in Clause 11.5 of the M.P. Public
Distribution System (Control) Order, 2009, then the said provision
would come directly in conflict with Section 10-A of the Essential
Commodities Act, 1955 and therefore, the interpretation of Clause 11.5
of the M.P. Public Distribution System (Control) Order, 2009 as
suggested by the Counsel for the applicant is not permissible.
Therefore, it is clear that the word "Only" cannot be read in
Clause 11.5 of M.P. Public Distribution System (Control) Order, 2009
so as to quash the F.I.R. on the ground that since, the complaint has not
been made by the Collector, therefore, the Police cannot register the
F.I.R. on the basis of the complaint made by any other person, even if
the same discloses the Commission of Cognizable Offence.
10. Furthermore, police after concluding the investigation has already filed
charge-sheet.
11. The Supreme Court in the case of H.N. Rishbud Vs. State of Delhi (AIR
1955 SC 196), has held as under :
9. The question then requires to be considered whether and to what
extent the trial which follows such investigation is vitiated. Now,
trial follows cognizance and cognizance is preceded by
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investigation. This is undoubtedly the basic scheme of the Code in
respect of cognizable cases. But it does not necessarily follow that
an invalid investigation nullifies the cognizance or trial based
thereon. Here we are not concerned with the effect of the breach of
a mandatory provision regulating the competence or procedure of
the Court as regards cognizance or trial. It is only with reference to
such a breach that the question as to whether it constitutes an
illegality vitiating the proceedings or a mere irregularity arises. A
defect or illegality in investigation, however serious, has no direct
bearing on the competence or the procedure relating to cognizance
or trial. No doubt a police report which results from an
investigation is provided in Section 190 of the Code of Criminal
Procedure as the material on which cognizance is taken. But it
cannot be maintained that a valid and legal police report is the
foundation of the jurisdiction of the Court to take cognizance.
Section 190 of the Code of Criminal Procedure is one out of a
group of sections under the heading "Conditions requisite for
initiation of proceedings". The language of this section is in marked
contrast with that of the other sections of the group under the same
heading i.e. Sections 193 and 195 to 199. These latter sections
regulate the competence of the Court and bar its jurisdiction in
certain cases excepting in compliance therewith. But Section 190
does not. While no doubt, in one sense, clauses (a), (b) and (c) of
Section 190(1) are conditions requisite for taking of cognizance, it
is not possible to say that cognizance on an invalid police report is
prohibited and is therefore a nullity. Such an invalid report may still
fall either under clause (a) or (b) of Section 190(1), (whether it is
the one or the other we need not pause to consider) and in any case
cognizance so taken is only in the nature of error in a proceeding
antecedent to the trial. To such a situation Section 537 of the Code
of Criminal Procedure which is in the following terms is attracted:
"Subject to the provisions hereinbefore contained, no finding,
sentence or order passed by a Court of competent jurisdiction shall
be reversed or altered on appeal or revision on account of any error,
omission or irregularity in the complaint, summons, warrant,
charge, proclamation, order, judgment or other proceedings before
or during trial or in any enquiry or other proceedings under this
Code, unless such error, omission or irregularity, has in fact
occasioned a failure of justice."
If, therefore, cognizance is in fact taken, on a police report vitiated
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by the breach of a mandatory provision relating to investigation,
there can be no doubt that the result of the trial which follows it
cannot be set aside unless the illegality in the investigation can be
shown to have brought about a miscarriage of justice. That an
illegality committed in the course of investigation does not affect
the competence and the jurisdiction of the Court for trial is well
settled as appears from the cases in Prabhu v. Emperor AIR 1944
PC 73 (C) and Lumbhardar Zutshi v. King AIR 1950 PC 26 (D).
These no doubt relate to the illegality of arrest in the course of
investigation while we are concerned in the present cases with the
illegality with reference to the machinery for the collection of the
evidence. This distinction may have a bearing on the question of
prejudice or miscarriage of justice, but both the cases clearly show
that invalidity of the investigation has no relation to the
competence of the Court. We are, therefore, clearly, also, of the
opinion that where the cognizance of the case has in fact been taken
and the case has proceeded to termination, the invalidity of the
precedent investigation does not vitiate the result, unless
miscarriage of justice has been caused thereby.
10. It does not follow, however, that the invalidity of the
investigation is to be completely ignored by the Court during trial.
When the breach of such a mandatory provision is brought to the
knowledge of the Court at a sufficiently early stage, the Court,
while not declining cognizance, will have to take the necessary
steps to get the illegality cured and the defect rectified, by ordering
such reinvestigation as the circumstances of an individual case may
call for. Such a course is not altogether outside the contemplation
of the scheme of the Code as appears from Section 202 under
which a Magistrate taking cognizance on a complaint can order
investigation by the police. Nor can it be said that the adoption of
such a course is outside the scope of the inherent powers of the
Special Judge, who for purposes of procedure at the trial is virtually
in the position of a Magistrate trying a warrant case. When the
attention of the Court is called to such an illegality at a very early
stage it would not be fair to the accused not to obviate the prejudice
that may have been caused thereby, by appropriate orders, at that
stage but to leave him to the ultimate remedy of waiting till the
conclusion of the trial and of discharging the somewhat difficult
burden under Section 537 of the Code of Criminal Procedure of
making out that such an error has in fact occasioned a failure of
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justice. It is relevant in this context to observe that even if the trial
had proceeded to conclusion and the accused had to make out that
there was in fact a failure of justice as the result of such an error,
explanation to Section 537 of the Code of Criminal Procedure
indicates that the fact of the objection having been raised at an
early stage of the proceeding is a pertinent factor. To ignore the
breach in such a situation when brought to the notice of the Court
would be virtually to make a dead letter of the peremptory
provision which has been enacted on grounds of public policy for
the benefit of such an accused. It is true that the peremptory
provision itself allows an officer of a lower rank to make the
investigation if permitted by the Magistrate. But this is not any
indication by the Legislature that an investigation by an officer of a
lower rank without such permission cannot be said to cause
prejudice. When a Magistrate is approached for granting such
permission he is expected to satisfy himself that there are good and
sufficient reasons for authorising an officer of a lower rank to
conduct the investigation. The granting of such permission is not to
be treated by a Magistrate as a mere matter of routine but it is an
exercise of his judicial discretion having regard to the policy
underlying it. In our opinion, therefore, when such a breach is
brought to the notice of the Court at an early stage of the trial the
Court have to consider the nature and extent of the violation and
pass appropriate orders for such reinvestigation as may be called
for, wholly or partly, and by such officer as it considers appropriate
with reference to the requirements of Section 5-A of the Act. It is in
the light of the above considerations that the validity or otherwise
of the objection as to the violation of Section 5(4) of the Act has to
be decided and the course to be adopted in these proceedings,
determined.
12. Thus, in the light of the judgment passed by the Supreme Court in the case
of H.N. Rishbud (Supra), when the charge sheet has been filed and the
cognizance has been taken, then under these circumstances whether the
investigating officer was competent to investigate the matter or not is of no
importance. Thus, the contention raised by the Counsel for the applicant with
regard to the incompetency of the investigating officer to investigate the offence
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in the light of clause 11(5) of Madhya Pradesh Public Distribution System
(Control) Order 2009 is rejected. Once the charge-sheet is filed, then it is a matter
between the accused and the Court.
13. So far as the question of non-grant of an opportunity of hearing to the
applicants before the registration of FIR is concerned, it is suffice to mention here
that the accused/suspect has no right of pre-audience.
14. The Supreme Court in the case of Romila Thapar and others vs. Union
of India and others reported in (2018) 10 SCC 753 has held as under:-
"24. Turning to the first point, we are of the considered opinion that
the issue is no more res integra. In Narmada Bai v. State of Gujarat, in
para 64, this Court restated that it is trite law that the accused persons
do not have a say in the matter of appointment of investigating
agency. Further, the accused persons cannot choose as to which
investigating agency must investigate the offence committed by them.
Para 64 of this decision reads thus: (SCC p. 100)
"64. ... It is trite law that the accused persons do not have a say
in the matter of appointment of an investigating agency. The
accused persons cannot choose as to which investigating
agency must investigate the alleged offence committed by
them."
(emphasis supplied)
25. Again in Sanjiv Rajendra Bhatt v. Union of India, the Court
restated that the accused had no right with reference to the manner of
investigation or mode of prosecution. Para 68 of this judgment reads
thus: (SCC p. 40)
"68. The accused has no right with reference to the manner of
investigation or mode of prosecution. Similar is the law laid
down by this Court in Union of India v. W.N. Chadha,
Mayawati v. Union of India, Dinubhai Boghabhai Solanki v.
State of Gujarat, CBI v. Rajesh Gandhi, CCI v. SAIL and
Janata Dal v. H.S. Chowdhary."
(emphasis supplied)
26. Recently, a three-Judge Bench of this Court in E. Sivakumar v.
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Union of India, while dealing with the appeal preferred by the
"accused" challenging the order of the High Court directing
investigation by CBI, in para 10 observed: (SCC pp. 370-71)
"10. As regards the second ground urged by the petitioner, we
find that even this aspect has been duly considered in the
impugned judgment. In para 129 of the impugned judgment,
reliance has been placed on Dinubhai Boghabhai Solanki v.
State of Gujarat, wherein it has been held that in a writ petition
seeking impartial investigation, the accused was not entitled to
opportunity of hearing as a matter of course. Reliance has also
been placed on Narender G. Goel v. State of Maharashtra, in
particular, para 11 of the reported decision wherein the Court
observed that it is well settled that the accused has no right to
be heard at the stage of investigation. By entrusting the
investigation to CBI which, as aforesaid, was imperative in the
peculiar facts of the present case, the fact that the petitioner
was not impleaded as a party in the writ petition or for that
matter, was not heard, in our opinion, will be of no avail. That
per se cannot be the basis to label the impugned judgment as a
nullity."
27. This Court in Divine Retreat Centre v. State of Kerala, has
enunciated that the High Court in exercise of its inherent jurisdiction
cannot change the investigating officer in the midstream and appoint
an investigating officer of its own choice to investigate into a crime
on whatsoever basis. The Court made it amply clear that neither the
accused nor the complainant or informant are entitled to choose their
own investigating agency, to investigate the crime, in which they are
interested. The Court then went on to clarify that the High Court in
exercise of its power under Article 226 of the Constitution can always
issue appropriate directions at the instance of the aggrieved person if
the High Court is convinced that the power of investigation has been
exercised by the investigating officer mala fide.
28. Be that as it may, it will be useful to advert to the exposition in
State of West Bengal and Ors. Vs. Committee for Protection of
Democratic Rights, West Bengal and Ors.13 In paragraph 70 of the
said decision, the Constitution Bench observed thus:
"70. Before parting with the case, we deem it necessary to
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emphasise that despite wide powers conferred by Articles 32 13
(2010) 3 SCC 571 38 and 226 of the Constitution, while
passing any order, the Courts must bear in mind certain self-
imposed limitations on the exercise of these Constitutional
powers. The very plenitude of the power under the said articles
requires great caution in its exercise. Insofar as the question of
issuing a direction to the CBI to conduct investigation in a case
is concerned, although no inflexible guidelines can be laid
down to decide whether or not such power should be exercised
but time and again it has been reiterated that such an order is
not to be passed as a matter of routine or merely because a
party has levelled some allegations against the local police.
This extraordinary power must be exercised sparingly,
cautiously and in exceptional situations where it becomes
necessary to provide credibility and instil confidence in
investigations or where the incident may have national and
international ramifications or where such an order may be
necessary for doing complete justice and enforcing the
fundamental rights. Otherwise the CBI would be flooded with a
large number of cases and with limited resources, may find it
difficult to properly investigate even serious cases and in the
process lose its credibility and purpose with unsatisfactory
investigations."
29. In the present case, except pointing out some circumstances to
question the manner of arrest of the five named accused sans any
legal evidence to link them with the crime under investigation, no
specific material facts and particulars are found in the petition about
mala fide exercise of power by the investigating officer. A vague and
unsubstantiated assertion in that regard is not enough. 39 Rather,
averment in the petition as filed was to buttress the reliefs initially
prayed (mentioned in para 7 above) - regarding the manner in which
arrest was made. Further, the plea of the petitioners of lack of
evidence against the named accused (A16 to A20) has been seriously
disputed by the Investigating Agency and have commended us to the
material already gathered during the ongoing investigation which
according to them indicates complicity of the said accused in the
commission of crime. Upon perusal of the said material, we are of the
considered opinion that it is not a case of arrest because of mere
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dissenting views expressed or difference in the political ideology of
the named accused, but concerning their link with the members of the
banned organization and its activities. This is not the stage where the
efficacy of the material or sufficiency thereof can be evaluated nor it
is possible to enquire into whether the same is genuine or fabricated.
We do not wish to dilate on this matter any further lest it would cause
prejudice to the named accused and including the co-accused who are
not before the Court. Admittedly, the named accused have already
resorted to legal 40 remedies before the jurisdictional Court and the
same are pending. If so, they can avail of such remedies as may be
permissible in law before the jurisdictional courts at different stages
during the investigation as well as the trial of the offence under
investigation. During the investigation, when they would be produced
before the Court for obtaining remand by the Police or by way of
application for grant of bail, and if they are so advised, they can also
opt for remedy of discharge at the appropriate stage or quashing of
criminal case if there is no legal evidence, whatsoever, to indicate
their complicity in the subject crime.
30. In view of the above, it is clear that the consistent view of this
Court is that the accused cannot ask for changing the Investigating
Agency or to do investigation in a particular manner including for
Court monitored investigation....................."
15. The Supreme Court in the case of Dinubhai Boghabhai Solanki v.
State of Gujarat, reported in (2014) 4 SCC 626 has held as under:-
"50. In W.N. Chadha [Union of India v. W.N. Chadha, 1993 Supp
(4) SCC 260 : 1993 SCC (Cri) 1171] , the High Court had quashed
and set aside the order passed by the Special Judge in charge of CBI
matters issuing the order rogatory, on the application of a named
accused in the FIR, Mr W.N. Chadha. The High Court held that the
order issuing letter rogatory was passed inbreach of principles of
natural justice. In appeal, this Court held as follows: (SCC pp. 290-
91 & 293, paras 89, 92 & 98)
"89. Applying the above principle, it may be held that when
the investigating officer is not deciding any matter except
collecting the materials for ascertaining whether a prima facie
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case is made out or not and a full enquiry in case of filing a
report under Section 173(2) follows in a trial before the Court
or Tribunal pursuant to the filing of the report, it cannot be
said that at that stage rule of audi alteram partem
superimposes an obligation to issue a prior notice and hear the
accused which the statute does not expressly recognise. The
question is not whether audi alteram partem is implicit, but
whether the occasion for its attraction exists at all.
***
92 More so, the accused has no right to have any say as
regards the manner and method of investigation. Save under
certain exceptions under the entire scheme of the Code, the
accused has no participation as a matter of right during the
course of the investigation of a case instituted on a police
report till the investigation culminates in filing of a final report
under Section 173(2) of the Code or in a proceeding instituted
otherwise than on a police report till the process is issued
under Section 204 of the Code, as the case may be. Even in
cases where cognizance of an offence is taken on a complaint
notwithstanding that the said offence is triable by a Magistrate
or triable exclusively by the Court of Sessions, the accused has
no right to have participation till the process is issued. In case
the issue of process is postponed as contemplated under
Section 202 of the Code, the accused may attend the
subsequent inquiry but cannot participate. There are various
judicial pronouncements to this effect but we feel that it is not
necessary to recapitulate those decisions. At the same time, we
would like to point out that there are certain provisions under
the Code empowering the Magistrate to give an opportunity of
being heard under certain specified circumstances.
***
98. If prior notice and an opportunity of hearing are to be
given to an accused in every criminal case before taking any
action against him, such a procedure would frustrate the
proceedings, obstruct the taking of prompt action as law
demands, defeat the ends of justice and make the provisions of
law relating to the investigation lifeless, absurd and self
defeating. Further, the scheme of the relevant statutory
provisions relating to the procedure of investigation does not
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attract such a course in the absence of any statutory obligation
to the contrary."
These observations make it abundantly clear that it would not be
necessary to give an opportunity of hearing to the proposed accused
as a matter of course. The Court cautioned that if prior notice and an
opportunity of hearing have to be given in every criminal case before
taking any action against the accused person, it would frustrate the
entire objective of an effective investigation. In the present case, the
appellant was not even an accused at the time when the impugned
order was passed by the High Court. Finger of suspicion had been
pointed at the appellant by independent witnesses as well as by the
grieved father of the victim.
51. In Rajesh Gandhi case [CBI v. Rajesh Gandhi, (1996) 11 SCC
253 : 1997 SCC (Cri) 88] , this Court again reiterated the law as
follows: (SCC pp. 256- 57, para 8)
"8. There is no merit in the pleas raised by the first respondent
either. The decision to investigate or the decision on the
agency which should investigate, does not attract principles of
natural justice. The accused cannot have a say in who
should investigate the offences he is charged with. We also fail
to see any provision of law for recording reasons for such a
decision. ... There is no provision in law under which, while
granting consent or extending the powers and jurisdiction of
the Delhi Special Police Establishment to the specified State
and to any specified case any reasons are required to be
recorded on the face of the notification. The learned Single
Judge of the Patna High Court was clearly in error in holding
so. If investigation by the local police is not satisfactory, a
further investigation is not precluded. In the present case the
material on record shows that the investigation by the local
police was not satisfactory. In fact the local police had filed a
final report before the Chief Judicial Magistrate, Dhanbad.
The report, however, was pending and had not been accepted
when the Central Government with the consent of the State
Government issued the impugned notification. As a result,
CBI has been directed to further investigate the offences
registered under the said FIR with the consent of the State
Government and in accordance with law. Under Section
173(8) CrPC, 1973 also, there is an analogous provision for
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further investigation in respect of an offence after a report
under sub-section (2) has been forwarded to the Magistrate."
The aforesaid observations would clearly support the course adopted
by the High Court in this matter. We have earlier noticed that the
High Court had initially directed that the investigation be carried
under the supervision of the Special Commissioner of Police, Crime
Branch, of the rank of the Additional Director General of Police. It
was only when the High Court was of the opinion that even further
investigation was not impartial, it was transferred to CBI.
52. Again in Sri Bhagwan Samardha [Sri Bhagwan Samardha
Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P.,
(1999) 5 SCC 740 : 1999 SCC (Cri) 1047] , this Court observed as
follows: (SCC pp.742-43, paras 10-11)
"10. Power of the police to conduct further investigation, after
laying final report, is recognised under Section 173(8) of the
Code of Criminal Procedure. Even after the court took
cognizance of any offence on the strength of the police report
first submitted, it is open to the police to conduct further
investigation. This has been so stated by this Court in Ram Lal
Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC
(Cri) 479] . The only rider provided by the aforesaid decision
is that it would be desirable that the police should inform the
court and seek formal permission to make further
investigation.
11. In such a situation the power of the court to direct the
police to conduct further investigation cannot have any
inhibition. There is nothing in Section 173(8) to suggest that
the court is obliged to hear the accused before any such
direction is made. Casting of any such obligation on the court
would only result in encumbering the court with the burden of
searching for all the potential accused to be afforded with the
opportunity of being heard. As the law does not require it, we
would not burden the Magistrate with such an obligation."
These observations also make it clear that there was no obligation for
the High Court to either hear or to make the appellant a party to the
proceedings before directing that the investigation be conducted by
CBI.
53. We had earlier noticed that the High Court had come to the
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prima facie conclusion that the investigation conducted by the police
was with the motive to give a clean chit to the appellant, in spite of
the statements made by the independent witnesses as well as the
allegations made by the father of the deceased. The legal position has
been reiterated by this Court in Narender G. Goel [Narender G. Goel
v. State of Maharashtra, (2009) 6 SCC 65 : (2009) 2 SCC (Cri)
933] : (SCC pp. 68-69, paras 11-13)
"11. It is well settled that the accused has no right to be heard
at the stage of investigation. The prosecution will however
have to prove its case at the trial when the accused will have
full opportunity to rebut/question the validity and authenticity
of the prosecution case. In Sri Bhagwan Samardha Sreepada
Vallabha Venkata Vishwanandha Maharaj v. State of A.P. [Sri
Bhagwan Samardha Sreepada Vallabha Venkata
Vishwanandha Maharaj v. State of A.P., (1999) 5 SCC 740 :
1999 SCC (Cri) 1047] this Court observed: (SCC p. 743, para
11)
'11. ... There is nothing in Section 173(8) to suggest
that the court is obliged to hear the accused before any
such direction is made. Casting of any such obligation
on the court would only result in encumbering the court
with the burden of searching for all the potential
accused to be afforded with the opportunity of being
heard.'
12. The accused can certainly avail himself of an opportunity
to cross-examine and/or otherwise controvert the authenticity,
admissibility or legal significance of material evidence
gathered in the course of further investigations. Further in
light of the views expressed by the investigating officer in his
affidavit before the High Court, it is apparent that the
investigating authorities would inevitably have conducted
further investigation with the aid of CFS under Section 173(8)
of the Code.
13. We are of the view that what is the evidentiary value can
be tested during the trial. At this juncture it would not be
proper to interfere in the matter."
16. This Court in the case of Prabal Dogra vs. Superintendent of Police,
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Gwalior and State of M.P. by order dated 30.11.2017 passed in
M.Cr.C.No.10446/2017 has held that accused has no say in the matter of
investigation.
17. So far as Clause 14(3) of PDS (Control) Order, 2015 is concerned, it
merely provides that in case the variation is more than 10%, then the prosecution
is mandatory, but that would not mean that if variation is less than 10%, then
prosecution cannot be launched, as it does not prohibit the application of
provisions of penal law. The Supreme Court in the case of State of M.P. v.
Rameshwar & Others reported in (2009) 11 SCC 424 has held as under:-
"48. Mr Tankha's submissions, which were echoed by Mr Jain, that
the M.P. Cooperative Societies Act, 1960 was a complete code in
itself and the remedy of the prosecuting agency lay not under the
criminal process but within the ambit of Sections 74 to 76 thereof,
cannot also be accepted in view of the fact that there is no bar under
the M.P. Cooperative Societies Act, 1960, to take resort to the
provisions of the general criminal law, particularly when charges
under the Prevention of Corruption Act, 1988, are involved."
18. Accordingly, in light of the judgment passed by the Supreme Court in the
case of H.N. Rishbud (supra) and by this Court in Jagdish Kushwah (supra),
this Court is of the considered opinion that no case is made out warranting
interference. Application fails and is hereby dismissed.
(G.S. Ahluwalia)
Judge
pd
