Madhya Pradesh High Court
Shri Kishan Patel vs The State Of Madhya Pradesh on 15 February, 2017
1
M.Cr.C.No.1755/2015
(Shri Kishan Patel v. State of M.P.)
15/02/2017
Shri Sanjay Kumar Bahirani, counsel for the
applicant.
Shri Girdhari Singh Chauhan, Public Prosecutor
for the respondent/State.
This petition under Section 482 of CrPC has been filed against the order dated 27.01.2015 passed by JMFC, Gwalior in Criminal Case No.9258/2012 by which an application filed by the applicant for discharge has been rejected.
The necessary facts for the disposal of the present application in short are that a surprise check was carried out in a petrol pump run by the applicant in the name and style of "M/s. Maa Petroleum & Sons"
situated at Singhpur Road, Morar, Gwalior. It was found that 335 liters of diesel was in excess of the stock record. Thus, it was found that the applicant is not maintaining the stock register properly as well as the measuring equipments were found to be defective. The provisions of Clause 4, 5, 10 of M.P. Motor Spirit & High Speed Diesel Oil (Licensing and Control) Order, 1980 and conditions No.3, 4 & 10 of the licence, were found to be violated and, which is punishable under Section 3/7 of Essential Commodities Act.
A show cause notice was issued to the applicant as to why the excessive diesel be not confiscated and why the prosecution against the applicant be not initiated.
After considering the allegation made against 2 M.Cr.C.No.1755/2015 (Shri Kishan Patel v. State of M.P.) the applicant as well as the reply filed to the show cause notice, the Collector by order dated 12.06.2012 passed an order of confiscation of the excessive 335 liters of High Speed diesel and therefore, it was ordered that the applicant shall deposit Rs.15102/- towards price of the excessive diesel and it was also directed that the matter be handed over to the police for criminal prosecution.
Being aggrieved by the order of the Collector, the applicant filed an appeal under Section 6 (c) of Essential Commodities Act before Xth Additional Sessions Judge, Gwalior. The Criminal Appeal No.314/2012 was allowed by order dated 14.08.2013 passed by Xth Additional Sessions Judge, Gwalior and the order dated 28.05.2012 was set-aside and case was remanded back with a direction to pass a fresh order. It was observed that during the confiscation proceedings, the applicant was not given an opportunity of hearing and, therefore, the matter was remanded back.
The order dated 14.08.2013 was further challenged by the applicant by filing Criminal Revision No.899/2013 before the High Court which was allowed by order dated 01.11.2013 and the order of remand passed by Xth Additional Sessions Judge, Gwalior and the order of confiscation passed by the Collector on 12.06.2012 were set-aside. The operative part of the order dated 01.12.2013 passed in Criminal Revision No.899/2013 reads as under:-
"Thus in view of the aforesaid discussion, 3 M.Cr.C.No.1755/2015 (Shri Kishan Patel v. State of M.P.) this petition is allowed. The order of remand passed by X ASJ, Gwalior in Criminal Appeal No.314/2012 dated 14.08.2013, and order of confiscation passed by the Collector on 12.06.2012 in case No. Q/Khadiy/Vidhi/7-6/65/12, both are hereby set aside and entire seized quantity of petrol is hereby released."
By referring to the abovementioned order, it is submitted by the applicant that as the order dated 12.06.2012 passed by the Collector was set-aside, therefore, by implication, the direction given by the Collector to initiate criminal prosecution of the applicant also stood quashed and, therefore, the FIR as well as the subsequent criminal proceedings should be quashed.
Per contra, it is submitted by the counsel for the respondent that the direction for criminal prosecution is not based on outcome of the confiscation proceedings. Criminal prosecution is independent to confiscation proceedings and, therefore, if the order of confiscation was set-aside then it would not mean that the order directing for criminal prosecution also stood quashed.
Heard the learned counsel for the parties. The undisputed fact as emerges from the record are that a surprise check was carried out and 335 liters of diesel was found in excess of the stock register and the measurement apparatus were found to be defective and accordingly notice was issued calling upon the applicant to show cause as to why the excessive diesel may not be confiscated and he may 4 M.Cr.C.No.1755/2015 (Shri Kishan Patel v. State of M.P.) not be criminally prosecuted. The Collector after issuing the show cause notice to the applicant directed for confiscation of 335 liters of diesel and at the same time directed for initiation of criminal proceedings and accordingly the FIR was lodged against the applicant. In appeal, the Appellate Court quashed the order of the Collector on the ground of violation of principle of natural justice and remanded the case back. However, on criminal revision being filed by the applicant against the order of the Appellate Court, the order dated 12.06.2012 passed by the Collector directing for confiscation of the excessive diesel was quashed in toto. However, there is nothing in the order dated 01.11.2013 passed in Criminal Revision No.899/2013 to indicate that the order directing the initiation of criminal proceedings was also quashed.
Undisputedly, the initiation of criminal proceedings is not dependent upon the outcome of the confiscation proceedings, therefore, by necessary implication, it cannot be said that as the order of confiscation was quashed, therefore, the order directing the initiation of criminal proceedings also stood quashed automatically. On surprise inspection, 335 liters of diesel was found in excess of the stock as mentioned in the stock register. This clearly shows that the diesel dispensing machine was defective and less diesel was being supplied to the consumers, otherwise, 335 liters of diesel should not have been found in the underground tank in excess of the stock as mentioned in the stock register. These allegations 5 M.Cr.C.No.1755/2015 (Shri Kishan Patel v. State of M.P.) prima facie by in itself shows the violation of the M.P. Motor Spirit & High Speed Diesel Oil (Licensing and Control) Order, 1980 as well as the violation of the licence and, hence, it is punishable under Section 3/7 of Essential Commodities Act.
It is well settled principle of law that where an information with regard to commission of cognizable offence is given then the police authorities are under obligation to lodge a FIR.
The Supreme Court in the case of Lalita Kumari Vs. State of U.P. reported in (2014) 2 SCC 1 has held as under:-
"120. In view of the aforesaid discussion, we hold:
120.1 The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2 If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3 If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4 The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken 6 M.Cr.C.No.1755/2015 (Shri Kishan Patel v. State of M.P.) against erring officers who do not register the FIR if information received by him discloses a cognizable offence. 120.5 The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7 While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
120.8 Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above."
If the allegations are considered in the light of 7 M.Cr.C.No.1755/2015 (Shri Kishan Patel v. State of M.P.) the judgment passed by the Supreme Court in the case of Lalita Kumari (supra), it is clear that the accusation as made in the complaint do prima facie make out an offence punishable under Section 3/7 of Essential Commodities Act for having violated the provisions of M.P. Motor Spirit & High Speed Diesel Oil (Licensing and Control) Order, 1980.
Accordingly, this Court is of the considered opinion that the FIR lodged against the applicant cannot be quashed. Accordingly, this petition fails and is hereby dismissed.
(G.S.Ahluwalia)
(ra) Judge