Shri Mahesh Chourasiya vs State of M.P. and Others

D.K. Paliwal, J.—This petition has been filed u/s 482 of Cr.P.C. for quashing the proceeding pending in case no. 2323/2007 State of M.P. vs. Mahesh Chourasiya before Chief Judicial Magistrate Vidisha and also quashing the F.I.R. registered at Crime No. 199/07 u/s 3 /7 of the Essential Commodities Act and Section 409 of I.P.C. The brief facts of the petition are that the petitioner is salesman of Government fair price shop Lakhuli. On 25.11.2007 Tehsildar on the direction of Collector Vidisha inspected fair price shop of Lakhuli. The stock register and distribution register has been checked and the statement of Balchand Silawat, Kamalsingh Adiwasi, Malkhan Singh Ahirwar, Harprasad, Mahesh Adiwasi, Sundar Adiwasi, Takht Singh Adiwasi, Gulabchand Adiwasi, Khemchand Harizan, Dhiraj Singh Harizan, Halke Singh Sikarwar, Kundel Singh, Ramseweak, Ganpat Singh Rajput, Mathura Prasad, Dhiraj Singh, Gopilal and Imarat Singh have been recorded. They disclosed that the foodstuffs and kerosene oil has not been distributed in the month of August and September and Salesman has misappropriated foodstuffs, wheat, kerosene and rice, meant for distributing to ration card holders of different categories. On the basis of report, the Crime No. 199/07 u/s 409 of I.P.C. and Section 3 /7 of Essential Commodities Act has been registered against the petitioner. Being aggrieved the petitioner has preferred this petition.

It is submitted by the learned Counsel for the petitioner that action of the respondent is contrary to law and deserves to be quashed. Nowhere it is mentioned that which of the control order issued u/s 3 /7 of the Essential Commodities Act has been violated. During investigation, Kamal Singh, Balchand, Malkhan Singh, Sunder, Mahesh, Munnalal, Lakhan Singh, Gulab Singh, Khemchand, Gopilal, Dheeraj Singh, Ramsevak, Balchand, Khushilal, Dheeraj, Ganpat Singh, Imrat Singh, Mathuraprasad, Halkes Singh have clearly stated that kerosene and foodstuffs distributed by the petitioner to them. In view of this no offence is made out against the petitioner. It is further submitted that there is nothing in the F.I.R. to made out offence u/s 409 of I.P.C. Against the petitioner. It is further submitted that where the special provision is available regarding the offence, the provision of I.P.C. will not be applicable. It is further submitted that admittedly no action have been taken by the Food Department of Vidisha. Tehsildar has filed the F.I.R. who has no power under the Essential Commodities Act. It is prayed that the F.I.R. and proceeding in case no. 2323/2007 before Chief Judicial Magistrate Vidisha and also the F.I.R. registered at Crime No. 199/07 u/s 3 /7 of the Essential Commodities Act liable to be quashed. Hence, it is prayed that the F.I.R. and criminal proceeding be quashed.

The learned Counsel for the respondent/State has submitted that after due investigation Charge-sheet has been filed against the petitioner and there is violation of provision of Essential Commodities Act. Hence, proceeding cannot be quashed.

I have considered the submissions of the learned Counsel for the parties and perused the record.

As per the F.I.R. the allegation against the petitioner is that he has not distributed the foodstuffs and kerosene oil to the ration card holders of the village belonging to Bhaironpur Pipariya for the month of August and September. The petitioner has misappropriated the foodstuffs, wheat, rice and kerosene oil.

The learned Counsel for the petitioner submits that petitioner is not a public servant defined u/s 21 of I.P.C. Therefore offence u/s 409 of the I.P.C. Is not made out. "Public servant" has been defined u/s 21 of Indian Penal Code as under:

Public Servant:"- The words " public servant" denote a person falling under any of the descriptions hereinafter following namely:-

2[***]

Second-Every Commissioned Officer in the Military, [Naval or Air] forces of India;

Third-Every judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;

Fourth-Every officer of a Court of Justice Including a liquidator, receiver or commissioner) whose duty it is as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties;

Fifth-Every jurymen, assessor, or member of a panchayat assisting a Court of Justice or public servant;

Sixth-Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of justice, or by any other competent public authority.

Seventh-Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement.

Eighth-Every officer of [the government] whose duty it is, as such officer, to prevent offence to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience.

Ninth-Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of [the Government], to make any survey, assessment or contract on behalf of [the government], or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of [the Government], or to make authenticate or to keep any document relating to the pecuniary interests of [the Government], or to prevent the infraction of any law for the protection of the pecuniary interests of [the Government].

Tenth-Every officer whose duty it is as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district.

Eleventh - Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;

Twelfth - Every person-

(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;

(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956).

The petitioner runs a fair price shop. The petitioner does not come within the preview of any of the clause of Section 21 of the Indian Penal Code. Hence the submission of the learned Counsel is deserves to be accepted.

For the offence punishable u/s 409 of I.P.C. the prosecution has to prove prima facie that the property have been "entrusted" to him as a capacity of public servant. In the instant case, there is nothing in the F.I.R. to show prima facie that some property was entrusted to the petitioner. Therefore the essential ingredients of the offence punishable u/s 409, are not revealed from the F.I.R.

So far as the offence u/s 3 /7 of the Essential Commodities Act is concerned it would be appropriate to refer the provisions of Essential Commodities Act, which provides as under.:-

Penalties.- (1) If any person contravenes any order made u/s 3,-

(a) he shall be punishable

(i) in the case of any order made with reference to clause (h) or clause (i) of sub-section (2) of that section, with imprisonment for a term which may extend to one year and shall also be liable to fine, and

(ii) in the case of any other order, with imprisonment for a term which shall not be less than three months but which may extend to seven years and shall also be liable to fine;

[Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than three months;]

(b) any property in respect of which the order has been contravened shall be forfeited to the Government;

(c) any package, covering or receptacle in which the property is found and any animal, vehicle, vessel or other conveyance used in carrying the commodity shall, if the court so orders, be forfeited to the Government.

Thus, bare perusal of the Section 7(1) of the Essential Commodities Act, it makes crystal clear that when there is a violation of any "order" regarding any essential commodity, then the provisions of section 7 of Essential Commodities Act, 1955 may apply.

This Court in the matter of Hema Bhadoriya Vs. State of M.P., reported in 2008 (1) EFR 198, has held that the criminal proceedings pending against the petitioner regarding inspection of petrol pump without mentioning violation of any order u/s 3 of Essential Commodities Act accused cannot be prosecuted for the offence punishable u/s 3 /7 of the Essential Commodities Act.

Hon''ble Supreme Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, laid down the principal of law enunciated in series of decisions relating to exercise of inherent powers u/s 482 of Cr.P.C. and formulated the guidelines observing as under:-

This Court in the backdrop of interpretation of various relevant provisions of the Cr.P.C. under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 of the Constitution of India or the inherent powers u/s 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 make 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 u/s 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 uncontroverted 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 offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 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 specified 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.

As noticed herein above that violation of "Order" u/s 3 has not been shown therefore petitioner can not be held liable for punishment u/s 7 of the Essential Commodities Act. The present case is covered under the guidelines no. -1 of Bhajanlal''s case(supra). Therefore, the petition deserves to be allowed. Consequently the petition is allowed. The proceeding pending in case no. 2323/2007 before Chief Judicial Magistrate Vidisha and also the F.I.R. registered at Crime No. 199/07 u/s 3 /7 of the Essential Commodities Act and Section 409 of I.P.C. against the petitioner are hereby quashed.