Rakesh Kumar vs State of U.P.& Ors.

The prayer of the petitioner is to quash the First Information Report dated 1481982 giving rise to Case Crime No. 256 of 1992 under Section 3/7 of the Essential Commodities Act, Police Station Bisalpur, District Pilibhit as contained in Annexure 7.

A perusal of the document appended as Annexure7 shows that it is a plain copy of report dated 14892 of Kuldip Singh, Marketing Inspector, Bareilly Headquarters R.F.O. Office. The document shows that along with it checking report as well as photo copy of the order of the Pargana Adhikari, Bisalpur were also attached with it.

Sri A.N. Srivastava, the learned Counsel appearing on behalf of the petitioner informs us that a copy of the checking report dated 10892 has been appended as Annexure2 to the writ petition. He contended that since the allegation was of violation of the provisions of Sections 28(2) and 28(3) of the Scheduled Commodities Distribution Order, 1989, which stood repealed before the alleged occurrence, the F.I.R. is liable to be quashed. He further contended that the F.I.R. was lodged at the instance of Respondent No. 5 who was Deputy Minister of State for Milk Development on account of political rivalry.

Sri P.K. Bisaria, learned Standing Counsel appearing on behalf of the State, on the other hand, contended that true it is that Clauses 28(2) and 28(3) of the Control Order were repealed but having regard to the peculiar facts and circumstances the petitioner had committed an offence under Section 406 of the Indian Penal Code and thus this Court will not be justified in precluding the Police from making statutory investigation and hooking the petitioner under the appropriate law. The allegation of mala fide lacks substance, which has not been supported by any cogent or reliable material. Accordingly, the writ petition be dismissed.

Sri Srivastava, in reply, contended that the Essential Commodities Act being a special Act and there being no violation of it the petitioner cannot be charged to have violated Section 406 of the Indian Penal Code, which is the general law hesides ingredients constituting offence under Section 406 having lacking in the impugned First Information Report, for these reasons also the impugned First Information Report is liable to be quashed.

Sri Bisaria in his further reply contended that from the averments made in the checking report it is clear that the truth or otherwise in regard to stock of kerosene oil was possible only from the physical verification of the stock with reference to the record, which was not produced on the pretext that the salesman is on leave.

Our Findings:

Unfortunately, the petitioner has not brought on the record the certified copy of the impugned First Information Report. Therefore, it is not possible" for this Court to safely rely on a copy which is incomplete too. Apparently the document appended as Annexure7 does not appear to be F.I.R. stricts sensu in terms of the expressed provisions of the Code of Criminal Procedure.

Considering in favour of the petitioner that the relevant clauses, which were alleged to have been breached by him, were not in existence on the day of occurrence prima facie a question will crop up whether the petitioner has committed any offence under Section 406 of the Indian Penal Code provided the ingredients constituting that offence are prima facie found to be in existence. The petitioner took up a defence before the Authority that he cannot produce the records since his salesman was on leave. This defence of his may be true or untrue. We do not want to make any positive comment in this regard at this stage except noticing that it is not the case of the petitioner in the writ petition that his records were in custody of his salesman who was allegedly on leave.

True it is that the petitioner has alleged mala fide in the institution of the F.I.R. but in view of the fact that the petitioner has not brought on the record true and complete copy of the F.I.R. we refuse to adjudicate this question at this stage.

In the result, we dismiss this writ petition, however, with a direction to the Police Authority concerned that if it has not filed any chargesheet till to date, then it will be open for it to ascertain as to whether any offence under Section 406, I.P.C. was prima facie committed by the petitioner or not and thereafter to act in accordance with law.

We hope and trust that the Investigating Officer, who is required to act independently and not under the influence of any political personality, shall not belie our trust in him.

We also direct the petitioner to cooperate with the investigation and if he does so then no coercive action will be taken by the Police against him till submission of chargesheet if any and without obtaining orders from the Magistrate concerned.

Before parting it is clarified that if the Police has submitted final report in favour of the petitioner in that event no further action is required to be taken in this regard.

The office is directed to handover a copy of this order within ten days to Sri P.K. Bisaria, learned Standing Counsel for its communication to the Police authority concerned for a follow up action.