Satya Narayan Kejriwal and Another vs The State of Bihar and Others

S.N. Jha, J.—By this application under Articles 226 and 227 of the Constitution of India, the Petitioners have prayed for issuance of a writ in the nature of mandamus for quashing the, first information report giving rise to Ranchi Kotwali P.S. Case No. 0071/1984 dated 3.2.1984 and also for quashing of confiscation proceeding and restraining the Respondents from taking any action against the Petitioners on the basis of the said first information report. It was further prayed that the articles seized be released in favour of the Petitioners.

The Petitioners are partners of a registered partnership firm known as M/s Bharat Oil Mills and registered under the Indian Partner-ship Act who carries on business of manufacturing and wholesale sale of edible oil. The said firm holds a licence under the provisions of Bihar Edible Oil Dealers Licensing Order, 1966 (for short ''the Licensing Order, 1966'') which has been renewed from year to year. A renewal application in respect of licence alongwith renewal fee was submitted before the licensing authority annexing the original licence required to be submitted for such renewal.

It appears that on 2/3rd of February, 1984, the Executive Magistrate, Respondent No. 3 raided the business premises of the Petitioners under the orders of Deputy Commissioner-cum-Collector, Ranchi, Respondent No. 2. The raiding party after counting the stock at the business premises including-the mills and the god-owns locked and sealed the place where the articles were found and prepared a list of the seized articles including the articles taken by them as samples.

A written report was submitted by the Respondent No. 3 alleging, inter-alia:

(i) that the licence has not been renewed for the year 1984 although it was valid till December, 1983.

(ii) There was no entry with respect to Gunja seeds and there was no support for holding the seed in stock.

(iii) Oil was packed in used tins of several kinds bearing distinct marks.

(iv) Stock register did not indicate the limits under the licence for storage and manufacture and number of other discrepancies were found by the raiding parties.

On the basis of the said report, the Officer Incharge of Kotwali police station drew a formal first information report and registered the aforesaid Kotwali (Sukhdeonagar) P.S. Case No. 0071/1984 against the Petitioners u/s 7/8 of the Essential Commodities Act (for short ''the E.G. Act'') and Section 420 and 272 of the Indian Penal Code (for short ''the Penal Code''). A copy of the first information report is annexed as Annexure 2 to this application which is under challenge.

While admitting this application, vide order dated 13.3.1984, this Court did not stay the police investigation and the confiscation proceeding but the seized articles except Mahua were ordered to be released to the Petitioners on furnishing sufficient security to the satisfaction of the Deputy Commissioner, Ranchi and spending final hearing of this application, the Petitioners were ordered not to be arrested.

A supplementary affidavit has been filed on behalf of the Petitioners which shows that pursuant to the notice as contained in Annexure-3, the Petitioners filed show cause reply before the Deputy Commissioner, Ranchi in confiscation proceeding bearing Case No. 22 R28/83-84 and after hearing the parties, the Deputy Commissioner by his order dated 9.4.87 dropped the confiscation proceeding while observing as follows:

In view of the facts discussed above, I find that the only point that holds against the o.p. is point No. 2. But however, it has been contended by the o.p. that there was no mens rea or injury to the State for non-maintenance of the separate registers for different kinds of oil. This as stated earlier has to be considered conjointly with other points. I find that the rest of the five points have been totally conceded by the learned P.P. appearing on behalf of the State. If he had felt all that strongly about the case not being true, he could have advised the State earlier that the case was not true and the prosecution would not be sustained in the court Of law. Then there was no need of carrying on with this proceeding. The time of the court has been wasted in addition to the wastage of money and other needless harassment caused to the o.p. in this regard. The learned A.P.P. who, I believe has been there for the last 3-4 years could have saved all this for the State by conceding these points earlier. However, the fact that he has chosen to concede these points right at the end appear to be slightly mysterious to the court. I would like that in the future learned A.P.P. behaves in more forthright mariner, and consider the cases at their intrinsic value. However, in view of the fact it has been totally conceded by the A.P.P. and there being no supporting evidence against the o.p. the court has no option but to order that the confiscation proceeding in relation to the commodities, seized be dropped and the o.p. discharged from all the liabilities that has been incurred in course of this proceeding.

A second supplementary affidavit has also been filed in this case on behalf of the Petitioners. It has been stated that the police after investigation submitted a charge-sheet u/s 7 of the E.C. Act and Section 420 and 272 of the Penal Code since the police investigation had not been stayed by this Court at the time of admission of this application.

Mr. Bharuka, learned Counsel appearing on behalf of the Petitioners vehemently argued that since the Deputy Commissioner-cum-Collector acting u/s 6A of the E.C. Act on consideration of all the material facts and evidence found that none of the charges against the Petitioners are sustainable and discharged the Petitioners in respect of all the allegations, there is no warrant for continuation of the criminal proceeding against the Petitioners on those very grounds. That will amount to an abuse of the process of the Court.

It was further contended that the Special Judge, E.C. Act without applying his judicial mind has taken cognizance of the offence u/s 7 of the E.C. Act in a mechanical way and no case at all under Sections 420 and 272 of the Penal Code has been made out.

It was lastly contended that so far as the allegations made in the first information report and the charge-sheet submitted with regard to the offence under the E.C. Act is concerned, the cognizance taken for such offence is barred by limitation u/s 468 of the Code of Criminal Procedure (for short ''the Code'') and fit to be quashed on this ground alone.

In support of his first contention, the learned Counsel has relied upon a decision in lie case of Ramautar Prasad Kedia and Ors. v. The State of Bihar 1984 B.L.J. 509. In the aforesaid case relying upon a decision of the Supreme Court in Uttam Chand and Others Vs. Income Tax Officer, Central Circle, Amritsar, , it was observed that the prosecution was started on certain allegations. The licensing authority accepted the show cause filed by the Petitioners and came to the conclusion that the charges levelled against the Petitioners have not been substantiated. He accepted the show cause and discharged the Petitioners. Even in the confiscation proceeding, the District Magistrate had observed that the violation is of technical nature and no other irregularities were found. Therefore, it was held that the cognizance would amount to an abuse of the process of the Court and the cognizance was accordingly quashed.

In the instant case, I must say that in view of the observations made by the Deputy Commissioner in the aforesaid confiscation proceeding, I find considerable force in the submissions of the learned Counsel appearing on behalf of the Petitioners and, in my opinion, the continuation of the criminal proceeding on those very allegations would be an abuse of the process of the Court. I again repeat that there cannot be any justification for the State to proceed with the criminal case in view of the strong observations made by the Deputy Commissioner which has been quoted earlier.

From a perusal of the first information report, I find that no essential ingredients of an offence under Sections 420 and 272 of the Penal Code are there.

From a bare reading of Section 420 the Penal Code, it appears that there must be a cheating and for cheating, in my opinion three ingredients must be present, namely, (1) practice of deception by the offender: (2) on account of deception, there must be fraudulent or dishonest inducement so as to make the person deceived or to do something and (3) by reason of doing of such thing there must be causing or likelihood of causing of damage or harm to the person deceived in body, mind and reputation. The essential ingredients for an offence of cheating, in my opinion, is that on the basis of a fraud or misrepresentation, the. complainant is induced to part with any valuable right. In the instant case, I do not find that such case has been made out against the Petitioners. So fax as the cognizance of offence u/s 272 is concerned, there is no allegation either in the first information report or in the charge-sheet of adultering food or drink intended for sale so as to make the same noxious. In that view of the matter, I am of the opinion that no case under Sections 420 or 272 of the Penal Code has been made out against the Petitioners.

Now coming to the point of limitation, from the first information report, it appears that the aforesaid case was registered as far back as 3.2.1984 and the police after investigation submitted charge-sheet on 27.4.1987 i.e. after more than three years, a copy of which is Annexure-4 to this application and on the basis of the said charge-sheet cognizance was taken against the Petitioners vide order dated 7.5.1987 passed in Special Case No. 71/84. I am not able to appreciate as to why the police took so much time in completing the investigation and in submission of the charge-sheet.

It was contended that the cognizance itself is barred by limitation u/s 468 of the Code Section 468 of the Code reads as follows:

(1) Except as otherwise provided, elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in Sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be:

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a terra not exceeding one year;

(c) three years, if the offence is punishable with imprisonment for, a term exceeding one year but not exceeding three years.

It was submitted on behalf of the Petitioners that so far as allegations made in the first information report with regard to offence u/s 7 of the E.C. Act is concerned, the maximum punishment provided therefore is only one year u/s 7(1)(a)(i) of the E.C. Act. Therefore, the taking of cognizance on 7.5.1987 is barred by limitation. In support of his contention, the learned Counsel has relied upon a decision in the case of Vasudeo Agrawal and Anr. v. State 1979 B.B.C.J. 422. In the aforesaid, cognizance was taken u/s 323 of the Penal Code and a Division Bench of this Court held that the maximum sentence u/s 323 is one year and therefore, no Court could take cognizance of the offence u/s 323 of the Penal Code after the expiry of one year from the date of occurrence, and quashed the cognizance on the ground of limitation.

On the other hand, Mr. Gadodia, learned Standing Counsel appearing on behalf of the State submitted {hat the principle of law enunciated in the case, of Vasudeo Agrawal and Anr. v. State (supra) has been implied, overruled by the Full Bench of this Court in the case of Ram Kripal Prasad and two Ors. v. The State of Bihar and Two Ors. 1985 P.L.J.R. 271, but with great respect, I must say that in my view, the principle enunciated in the said decision has not; been overruled by the Full Bench. The Full Bench relying on various decisions held that no question of limitation can possibly arises in the context of a continuing offence in view of Section 472 of the Code and it was held that the failure of the employers to deposit the contribution in contravention of paragraphs 38 and 76 of Employees Provident Fund Scheme, 1952 read with Section 14 of Employees Provident Funds and Misc. Provisions Act, 1952 would be a continuing offence.

In the instant cases, there is no question of any continuing offence. Therefore, in my view, the decision given in the Full Bench will not apply to the facts of the present case. It was further pointed out on behalf of the State that whether the disputed issues of limitation can appropriately be raised directly in the High Court for the quashing of the proceeding u/s 482 of the said Code. According to the learned Standing Counsel, the Petitioners cannot raise the points of limitation directly in the High Court but in this connection I may point out that in the case of State of Punjab Vs. Sarwan Singh, their Lordships held:

The object of the Code of Criminal Procedure in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statute seeks to subverse is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. It is, therefore, of the utmost importance that any prosecution whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation.

In that view of the matter. I do not any substance in the argument of the learned Standing Counsel because it is purely a point of law which can be raised at any stage just to prevent the abuse of the process of the Court in the ends of justice and specially in this case where the Deputy Commissioner has himself made an observation that there was no need of carrying on with the proceeding and the time of the Court has been wasted in addition to the wastage of money and other needless harassment caused to the accused in this regard.

In this connection, reference may also be made to a decision in the case of Surinder Mohan Vikal Vs. Ascharaj Lal Chopra, where their Lordships held:

It would thus appear that the Appellant was entitled to the benefit of Sub-section (1)of Section 469 which prohibits every Court from taking cognizance of an offence of the category specified in Sub-section (2) after the expiry of the period of limitation. It is hardly necessary to say that statutes of limitation have legislative policy behind them. For instance, they shut out belated and dormant claims in order to save accused from unnecessary harassment.

Taking into consideration all the facts and the circumstances I feel that, to allow the continuation of the criminal proceeding against the Petitioners is nothing but an abuse of the process of the Court and in the ends of justice, It must be stopped.

In view of the decision discussed above, in my opinion, the cognizance is barred by limitation and fit to be quashed on this score also.

Having examined the question very closely and having considered the matter in all its ramification, I am of the opinion that it is a fit case where the entire prosecution including the order of cognizance must be quashed.

For the reasons stated above, the prosecution including the order of cognizance is hereby quashed.

In the result, this application is allowed. However, there will be no order as to costs.