Chattisgarh High Court
Mohan Lal Patel vs State Of Chhattisgarh on 1 April, 2022
Author: Rajani Dubey
Bench: Rajani Dubey
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order reserved on : 04/01/2022
Order delivered on: 01 /04/2022
WPCR No. 414 of 2021
Hariram Chaudhary S/o Shri Bhagirathi Choudhary, aged about 67
Years, R/o Village and Post Pirda, Thana and Tahsil Basna, District
Mahasamund Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through Superintendent of Police
Mahasamund, District Mahasamund Chhattisgarh.
2. Station House Officer Police Station Basna, District Mahasamund
Chhattisgarh.
3. Branch Manager Jila Sahakari Bank Maryadit Raipur, Branch Pirda,
District Mahasamund Chhattisgarh.
---- Respondents
CRMP No. 568 of 2021
Mohan Lal Patel S/o Late Shri Govardhan Patel, aged about 32
Years, R/o Village and Post Pirda, P. S. Basna Tehsil Pithora, District
Mahasamund Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh Through Station House Officer, Police Station
Basna District Mahasamund Chhattisgarh.
2. Chhattisgarh State Co-Operative Marketing Sangh Maryadit
Through Managing Director, Naya Raipur Atal Nagar, Raipur District
Raipur Chhattisgarh.
3. District Marketing Officer District Marketing Federation, District
Mahasamund Chhattisgarh.
4. Collector (Food Branch) District Mahasamund Chhattisgarh.
5. Deputy Registrar Cooperative Society, Mahasamund District
Mahasamund Chhattisgarh.
6. Shivnath Patel Posted As-Branch Manager, Zila Sahakari Kendriya
Bank Maryadit, Raipur Branch Pitda, Tehsil Pithora, District
Mahasamund Chhattisgarh.
---- Respondents
For Petitioners : Mr. Sunil Sahu, Adv. and Mr.
Surfaraj Khan, Adv.
For State : Mr. Ayaz Naved, G.A.
For Respondent No. 2 & 3 :Mr. Vinod Deshmukh, Adv.
(in CRMP No. 568/2021)
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For Intervenor : Mr. Pankaj Singh, Adv.
For Complainant : Mr. Palash Agrawal, Adv.
Hon'ble Smt. Justice Rajani Dubey, J.
C A V Order
1. Since, both the cases are arising out of the same FIR No. i.e. 508/2020, registered at Police Station - Basna, District Mahasamund, both the cases are heard collectively.
2. Heard on I.A. No. 01/2021 (in WPCR No.414/2021) and on I.A. No. 01/2021 (in CRMP No.568/2021), applications for grant of stay of the effect and operations of the impugned FIR.
3. Petitioners have filed the applications against the FIR No. 508/2020 dated 04.11.2020 registered against them at Police Station Basna, District Mahasamund for the offence punishable under Sections 406, 409, 420/34 of IPC, on the ground that the impugned FIR has been registered without compliance and following the direction issued by this Court in Writ Petition (C) No. 1543/2020 dated 14.08.2020.
4. The prosecution story of the case of WPCR No. 414/2021 is that, petitioner Hariram Chaudhary is the elected President and petitioner Mohan Lal Patel is In-Charge of Prathmik Krishi Saakh Sahakari Samiti Mayadi, Pirda, having Registration No. 1233 registered under the Chhattisgarh Cooperative Societies Act. The Society is engaged in purchasing paddy in their procurement centres as per the norms and guidelines issued for purchasing the paddy in the year 2019-2020. An agreement dated 04.12.2019 was executed between the said Society and the Chhattisgarh State Marketing Federation, through District Marketing Officer, Mahasamund for 3 purchasing the paddy of registered agriculturists in the fixed price/supported price of the Government.
5. As per the norms of the agreement, the excess paddy which was more than buffer limit stock, should have been lifted within 72 hours by the Office of respondent authorities but it is alleged that the respondent authorities have not lifted the same. As the petitioner have to manage for the safety of the paddy, he filed the number of applications as well as representations to the respondents' department and requested for lifting the paddy but nothing has been done in this regard. Thereafter, due to the unfavorable climate and heavy rain, some paddy as well as the bags were destroyed.
6. The society even preferred a Writ Petition as WP(C) No. 1543/2020 for the inaction of Marketing Federation for not lifting paddy from the procurement centre. On 14.08.2020, this Court pleased to dispose of the said writ petition directing the authorities to conduct inquiry and to proceed, as per the agreement.
7. As far as the prosecution case in CRMP No. 568/2021 is concerned, it is identical to that of WPCR No. 414/2021 and the FIR No. 508/2020 is registered against both the petitioners.
8. Mr. Sunil Sahu, counsel for the petitioner, representing in WPCR No. 414/2021, would submit that in compliance of the order dated 24.08.2020 of this Court an Inquiry Committee was constituted on 07.10.2020 but no inquiry has been made yet by the committee nor the concerned Station House Officer has made any inquiry in the matter before registration 4 of the FIR and only on the basis of panchnama dated 28.10.2020, the impugned FIR has been registered. It is next submitted that as per para 14 of the agreement, there are clear terms for solving the dispute through Arbitrator but in this case, instead of sending the matter to the Arbitrator, the FIR has been registered. As per para 16.4 of the agreement, it is clear that the paddy more than buffer limit can be lifted within 72 hours but no action of lifting the paddy has been taken by the respondent authorities nor provided any proper facility to keep the paddy safe, thereafter, due to the change of weather and heavy rain the remaining paddy got destroyed. Thus, it cannot be said that the petitioners have committed embezzlement of paddy, therefore, further inquiry with regard to the impugned FIR may kindly be stayed.
9. Mr. Surfaraj Khan, counsel for the petitioner representing in CRMP No. 568/2021 has adopted the submissions advanced by Mr. Sunil Sahu, Adv., stating that the impugned FIR registered against the petitioner is illegal because there is no shortage on the part of society as the damage occurred due to Tropical Season and the Society had already informed the Authorities for lifting the paddy. Referring to Annexure P/5, it is further submitted that even the Collector, Mahasamund through its correspondence dated 27.02.2020 had communicated the office of D.M.O., Mahasamund for collecting the paddy and Bardana from procurement centre but no action has been taken by the D.M.O., Mahasamund. The parties are at commercial transaction and commercial transaction cannot be converted into criminal offence. Thus, 5 the authorities cannot shift their liability and fault upon the petitioners' Society, therefore, in the interest of justice, the effect and operations of the impugned FIR be stayed till the final disposal of the instant petition.
10. Per contra, learned counsel for the respondents opposed the prayer of the petitioners and submitted that the FIR has been registered against the petitioners by the Competent Authority and there is no ground to stay the proceedings against the petitioners. As per inquiry report dated 29.04.2020 as well as physical verification of the Joint Inquiry Team dated 28.10.2020, it is found that the petitioner Mohan Lal Patel, being In-charge of the Prathmik Krishi Saakh Sahakari Samiti Maryadi, Pirda and petitioner Hariram Choudhary, the President of the Samiti, have caused financial loss to the tune of Rs. 92,72,889/- by way of paddy procurement and reducing the storage of Bardana. In support of his argument, learned counsel for the respondents placed reliance in the matter of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra & Others reported in 2021 SCC Online SC
315.
11. Heard counsel for the parties and perused the material available on record.
12. Annexure P/3, annexed in the record of WPCR No. 414/2021, dated 6th November 2019 issued by the Secretary, Khadya Nagrik Aapurti Avam Upbhogta Sanrakshan Vibhag, is the guidelines for purchasing the paddy and the agreement dated 04.12.2019, in which, it is clearly mentioned that the paddy more than the buffer limit can be lifted within 72 6 hours. Para Nos. 15.8, 16.1 and 16.4 of the letter of guidelines read as under:-
"15-8- [kjhnh dsanz esa Hk.Mkfjr leLr /kku dks ekdZQsM }kjk fnukad 28 Qjojh 2020 rd vfuok;Z #i ls mBko djk;k tkosA 16-1- [kjhQ foi.ku o"kZ 2019&20 gsrq ifjogu dh O;oLFkk ekdZQsM }kjk fd;k tk;sxkA [kk| foHkkx Hkkjr ljdkj ds i= dzekad 192¼14½@2018&FC A/cs fnukad 06-05-2019 ¼ifjf'k"V&10½ esa mYysf[kr jkT; Lrjh; lfefr ds ek/;e ls /ku@lh-,e-vkj- dk ifjogu nj dk fu/kkZj.k fd;k tkosxkA 16-4- [kjhnh dsUnz esa /kku dh cQj LVkWd dh lhek ftyk lgdkjh dsUnzh; cSad ds }kjk r; fd;k tkosA [kjhnh dsUnz esa /kku dh ek=k cQj LVkWd dh lhek ls T;knk gksus ij 72 ?kaVs ds Hkhrj mldk 'kh?kz mBko djk;k tkosAß Also, in para 2.7 of the agreement dated 04.12.2019 the same guideline has been reiterated which is as under:-
Þ2-7- [kjhnh dsUnz esa /kku dh cQj LVkWd dh lhek ftyk lgdkjh dsUnzh; cSad ds }kjk r; fd;k tkosA [kjhnh dsUnz esa /kku dh ek=k cQj LVkWd dh lhek ls T;knk gksus ij 72 ?kaVs ds Hkhrj mldk 'kh?kz mBko djk;k tkosAß
13. Petitioners filed copy of various letters dated 11.03.2020, 23.03.2020, 01.04.2020, 07.04.2020, 24.04.2020, 27.05.2020, 07.06.2020 and so on, and in every letter Samiti In-charge has informed the District Marketing Officer, Mahasamund (C.G.) about the condition of paddy due to the unfavorable climate and requested for transportation of the same.
14. During the hearing of Writ Petition (C) No. 1543/2020, 7 counsel for the petitioner has submitted that the damage to the paddy or the shortage of paddy, if any occurs, because of climatic reasons or any other natural reasons, the petitioner cannot be saddled with the liability of damage of the same nor can the petitioner be held responsible for any criminal offence by registering of an FIR as the respondents did not timely lift the paddy after several requests. In reply, contentions of the respondents is mentioned at para 5 of the order which reads as under:-
" Counsel appearing for the respondents submit that it is only the petitioners' apprehension that some coercive action against the petitioner including an FIR would be registered without any investigation or inquiry. It is the contention of the counsel for the respondents that due care shall be taken by the respondents firstly in determining as to who is actually responsible for the damage or shortage of paddy and only thereafter disciplinary/coercive action including an FIR would be registered, if required."
In the FIR, it is not stated anywhere as to who is responsible for transportation. The FIR was lodged on 04.11.2020 but prior to lodging the FIR, through several letters, petitioners had requested for lifting/transportation of paddy.
15. In the Writ Petition (C) No. 1543/2020, the respondents were directed to undertake preliminary inquiry/investigation in respect of alleged shortage of paddy or loss caused to the respondents in the process of purchase of paddy. The direction was issued to the respondents on 04.08.2020 and the FIR was registered on 04.11.2020 and it is not clear from the reply as well as the documents filed by the respondents that during that period as to what steps have been taken by 8 the respondents in compliance of the order of this Court. This Court had also directed that if any further dispute regarding the quantity or quality of the paddy etc. would arise, all those issued would be resolved in terms of the agreement entered into between the parties and the standards and specifications provided for the same in the agreement.
16. Respondents have filed Annexure P/9 which shows that in compliance of the order dated 14.08.2020 of this Court, preliminary inquiry has been conducted but it is not reflected from this inquiry that what efforts have been taken by the respondents against the previous letters of the petitioners for resolving the issues. It is clear from the material available on record that respondents have not followed the order of this Court and registered the impugned FIR against the petitioners. Hence, petitioners have prima-facie case in their favour.
17. Accordingly, I.A. No. 01/2021 in WPCR No. 414/2021 and I.A. No. 01/2021 in CRMP No. 568/20201 are allowed. Further proceedings of the FIR No.508/2020 registered at P.S. Basna, District Mahasamund against the petitioners shall remain stayed. It is ordered that investigation in the impugned FIR and further enquiry, if any, may go on but no coercive steps shall be taken against the petitioners till the disposal of these petitions.
List this case for final hearing in due course.
Sd/-
(Rajani Dubey) Judge V/-