Madhya Pradesh High Court
Sushil Prasad vs The State Of Madhya Pradesh on 3 March, 2020
Author: Virender Singh
Bench: Virender Singh
1
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
M.Cr.C. No.5523 of 2017
Sushil Vs. State of M.P.
Indore, Dated:- 03.03.2020
Shri P.K Gupta along with Smt. Archana Kher,
learned Counsel for the petitioner.
Shri R K Pathak, learned Public Prosecutor for the
respondent/State.
This is a petition under section 482 of the Cr.P.C for quashing FIR No.22/2014 registered at police station Rajgarh under section 420, 406, 468, 471, 120-B of the IPC and 3/7 of the Essential Commodity Act and Rule 9/15 of MP Kerosene Vyapari Anugrapan Aadesh.
2. Allegation against the petitioner is that he misappropriated 1,55,016 liters kerosene allotted to distribute among the beneficiaries. FIR No.22/2014 got registered on the basis of newspaper publication. After the investigation, the police filed closure report under section 173 of the Cr.P.C.
3. The Magistrate refused to accept this closure report vide order dated 05.11.2016 mainly on the grounds of defective investigation and objection of the complainant. It was observed by the learned Magistrate that the police simply filed a closure report on the basis of documents produced by the petitioner/accused. The police have not recorded statements of the officials of the society to whom the kerosene was to be distributed. They have not recovered any documents from any of the society. The FIR was lodged by a Senior public officer, after detail inquiry, there is nothing to disbelieve his report and that the 2 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.5523 of 2017 Sushil Vs. State of M.P. complainant has objected the closure report. For the convenience order of the Magistrate is reproduced, as under:-
"jkT; }kjk ,Mhihvks mifLFkrA [kkRek fjiksVZ ds laca/k Qfj;knh larks"k uanuokj mifLFkr] mldk 'kiFk ij dFku fy;k x;kA [kkRek ds laca/k esa Qfj;knh larks"k uanuokj dks lquk x;kA dsl Mk;jh dk ifj'khyu fd;k x;kA Qfj;knh ds vuqlkj og dfUk"B vkiwfrZ vf/kdkjh Fkk vkSj mlus tkap djus ij ik;k Fkk fd vfHk;qDr }kjk vizSy 2013 ls fnlEcj 2013 rd lkslk;fV;ksa dks dsjksflu rsy 1]55]016 yhVj de vkcaVu fd;k x;k Fkk] Qfj;knh us lkslk;fV;ksa ds izca/kdksa ds dFku Hkh ys[kc) fd;s Fks rFkk lfefr izca/kdksa ds LVkWd iath ,oa fcy Hkh izkIr fd;s FksA iqfyl us bl vk/kkj ij [kkRek izLrqr fd;k gS fd vfHk;qDr dk tks dysDVj }kjk ykbZlsal fujLr fd;k x;k Fkk og dfe'uj Hkksiky }kjk vikLr dj fn;k x;k gS vkSj vfHk;qDr us tks nLrkost fn;s gS muds vk/kkj ij rsy dk vkcaVu lgh ik;k x;k gSA iqfyl }kjk lkslk;Vh izca/kdksa ds dksbZ dFku ugha fy;s x;s vkSj muls vkcaVu laca/kh dksbZ nLrkost Hkh tIr ugha fd;s x;s gSA vfHk;qDr }kjk tks nLrkost is'k fd;s gS mudk iz;ksx og dsoy cpko esa dj ldrk gSA dfe'uj }kjk dysDVj ds vkns'k dks vikLr fd;s tkus ls vfHk;qDr ds vijk/k laca/kh d`R; ij dksbZ izHkko ugha iM+rk gSA Qfj;knh 'kkldh; yksd lsod gS vkSj mlus foLr`r tkap djus ds ckn izFke lwpuk fjiksVZ ys[kc) djok;h Fkh mlus [kkRek Lohdkj fd;s tkus ij vkifRr O;Dr dh gS] mldh lk{; ,oa dsl Mk;jh ds ifj'khyu ls vfHk;qDr }kjk Hkknla- dh /kkjk 420] 406 ,oa vko';d oLrq vf/kfu;e dh /kkjk 3@7 rFkk e-iz- dsjksflu O;kikjh vuqKk 1979 ds fu;e 9 lgifBr 15 ds v/khu naMuh; vijk/k fd;k tkuk izrhr gksrk gSA vr% vijk/k dk laKku fy;k tkrk gSA mDr /kkjkvksa ds v/khu naMuh; vijk/k vfHk;qDr ds fo:) fof/kor~ ntZ fd;k tkosA vfHk;qDr dks 20 gtkj :i;s ds tekurh; okjaV ls ryc fd;k tkosA ,Mhihvks dks funsZf'kr fd;k tkrk gS fd og izdj.k esa lk{; lwph rS;kj djs rFkk dfu"B vkiwfrZ vf/kdkjh }kjk laiw.kZ tkap fjiksVZ izdj.k esa layXu djsa rFkk ftu nLrkostksa ij vfHk;kstu fuHkZj jguk pkgrk gS mudks dzec) djsaA izdj.k vfHk;qDr dh mifLFkfr gsrq fnukad 19-12-2016 dks 3 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.5523 of 2017 Sushil Vs. State of M.P. is'k gksA"
4. Against this order, the petitioner had preferred a petition M.Cr.C No.143/2017, which is disposed off with a direction that the impugned order does not contain the facts that prima facie case against the petitioner exists or not. This Court set aside the order and remained back the case to the learned Magistrate with a direction to pass a reasoned order on the basis of material available in the report filed by the police. The operative part of the order dated 18.01.2017 passed in M.Cr.C No.143/2017 reads as under:-
"The learned Magistrate has rejected the closure report solely on the ground that documents submitted by the petitioner were taken into consideration by the Investigation Agency, however, there is nothing in the impugned order to indicated that prima-facie necessary ingredients to constitute offences under Sections 420 and 406 of the IPC, Section 3/7 of the Essential Commodities Act and Rule 9 of 'M.P. Kerosine Vyapari Anugyapan Aadesh, 1979' were available. Therfore, the impugned order cannot be sustained.
Resultantly this petition is allowed and impugned order is hereby set aside with a direction that the learned Chief Judicial Magistrate will pass a reasoned order on the basis of material available in the report filed by the police.
The petition stands disposed of, accordingly."
5. In compliance of this order, the learned trial Court passed a detailed order dated 22.04.2017. After perusal of 4 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.5523 of 2017 Sushil Vs. State of M.P. the case diary and the evidence collected by the police during the investigation, the learned Magistrate directed the police to further investigate the case on certain points/issues.
6. Learned public prosecutor submitted that in compliance of order dated 22.04.2017, further investigation is in progress and the police have not arrived at any conclusion and have not filed any further closure report or any report for that matter before the trial Court.
7. Contention of the learned counsel for the petitioner is that there is no prima facie evidence at all available against the petitioner in the case diary. The learned Magistrate has no power to direct the police to re-investigate the case. In first round of litigation, this Court in order dated 18.01.2017 passed in M.Cr.C No.143/2017 has observed that no prima facie case exists against the petitioner, therefore, the learned Magistrate has erred in passing the impugned order or directing the police to re-investigate the case.
8. State has opposed the prayer stating that the learned Magistrate has directed the police to investigate the matter on certain issues and the investigation is still pending. The police have still to arrive at a conclusion, therefore, the FIR cannot be quashed at this stage.
9. I have considered rival contention of the parties and have gone through the record.
10. This Court in order dated 18.01.2017 has nowhere 5 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.5523 of 2017 Sushil Vs. State of M.P. stated that no prima facie case exists against the petitioner. It is only observed that the order of the learned Magistrate does not reflect that whether any prima facie case exists against the petitioner or not. The power of the learned Magistrate to direct the police to further investigate the case on certain issues is unfettered. At any time the Magistrate can direct the police to further investigate the case. The only rider on such power is that the Magistrate cannot direct the police to file charge sheet against any of the accused.
11. As the matter is still under investigation and the same has not been concluded by the police itself, therefore, it would not be appropriate to abort the investigation prematurely.
12. In the considered opinion of this court, at this stage, no case for quashing the FIR is made out, therefore, the petition stands dismissed.
(Virender Singh) Judge sourabh Digitally signed by SOURABH YADAV Date: 2020.03.05 17:20:37 +05'30'