Madhya Pradesh High Court
Laduram vs The State Of Madhya Pradesh on 16 January, 2020
Author: Sunil Kumar Awasthi
Bench: Sunil Kumar Awasthi
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THE HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE
M.Cr.C.No.46425/2019
(Laduram Vs. State of M.P. & Ors.)
Shri Jagdish Baheti, learned counsel for the applicant.
Shri Yogesh Kumar Gupta, learned Public Prosecutor for
the respondents/State.
ORDER
(Passed on 16 /01/2020) The applicant has preferred the present petition under Section 482 of the Cr.P.C. for quashment of FIR bearing Crime No. 225/2019 registered against the applicant at Police-Station- Rampura, District- Neemuch for commission of offence punishable under Sections 272, 273 and 420 of the IPC.
2. Brief facts of the case are that complainant-Sanjeev Kumar Mishra, Food Safety Officer, Neemuch submitted a written complaint at Police-Station-Rampura, District-Neemuch on 01/11/2019 stating that on 23/10/2019, he collected samples of mixed milk of cow and buffalo, mawa, paneer, cream, curd and ghee from the dairy of the applicant situated at Rampura. He sent all the samples to State Food Laboratory, Bhopal for analysis on 24/10/2019 and also destroyed stock of above milk products after seizure. It is further submitted that on 25/10/2019, five samples of mixed milk alongwith other material i.e. Skimmed milk powder, detergent powder, maltose and refind oil etc. were collected from the dairy plant of the applicant situated at village Dudhlai and sent for analysis to State Food Laboratory, Bhopal. It is also submitted that other material available at the dairy plant worth of Rs.3,36,600/-were also seized and destroyed.
3. It was also averred in the said report that it is apprehended 2 on the basis of the adulterants and other material available at the diary plant that the concerned milk and milk products were adulterated/synthetic. It has also been alleged that in the report that the accused used the tanker with a written board on it regarding on government duty and Saras Dairy for transportation of milk and thereby cheated the general public and accordingly, it was requested to the police authorities that considering the material seized from the applicant, it appears that he was involved in the business of adulterated milk and milk products, thus, it will be appropriate to registerer FIR against the applicant. On the basis of said written complaint, FIR bearing Crime No. 225/2019 has been registered against the applicant at Police-Station-Rampura, District-Neemuch for commission of offence punishable under Sections 272, 273 and 420 of the IPC. Being aggrieved by registration of avove FIR , the applicant has preferred the present petition for its quashment.
4. Learned counsel for the applicant has submitted that Section 38 of the Food Safety and Standards Act, empower the Food Safety Officer (FSO) to take samples of the food articles in the manner as procedure prescribed under Rules 2.4.1 of the Rules for analysis and to inspect places, where food articles are manufactured, stored or sale and even for seizure of food articles but does not authorize or empower the FSO to perform test or analysis of any food article himself and the authority of analysis is vested with public analyst only and untill a report of the public analyst is received the Food Safety Officer is not authorized and not supposed to presume in advance that the samples collected 3 are adulterated or injurious to health. It is also submitted by the learned counsel for the applicant that the samples collected by FSO has already been sent to State Food Laboratory, Bhopal for analysis but till date no report of public analyst has been received. It is further submitted that the FIR has been registered by the Police against the applicant under Sections 420, 272 and 273 of the IPC on the allegations that the applicant has committed fraud to the general public by selling adulterated milk and milk products and on the basis of the possession of certain other material, which is used for cleaning of the containers and also used for sampling of milk, while collected from small vendors. In these circumstances, it is not legal to raise any baseless presumption against the applicant regarding possession/sale of adulterated/ noxious food/ milk products, therefore, no offence under Section 420 of the IPC will be made out against the applicant. Under these circumstances, learned counsel for the applicant submitted that the aforesaid FIR is premature and liable to be quashed.
5. On the other hand, learned Public Prosecutor for the respondent/State supported the registration of the FIR against the applicant and prayed for rejection of the petition.
6. Having heard, learned counsel for the parties and perused the record.
7. From the perusal of the record, it appears that on the basis of written complaint made by complainant, the police has registered FIR bearing Crime No. 225/2019 against the applicant at Police-Station-Rampura, District- Neemuch for 4 commission of offence punishable under Sections 272, 273 and 420 of the IPC. Though, the learned counsel for the applicant has submitted that there is no public analyst report is available on record to established that the samples collected by the Food Safety Officer, Neemuch are adulterated, therefore, the said FIR is premature and liable to be quashed. However, from the averments made in the FIR, it appears that the samples collected by the FSO from the premises of the applicant has already been sent to State Food Laboratory, Bhopal for analysis and public analyst report is awaited, therefore, the investigation is pending before the police.
8. In the leading case of Bennett v Horseferry Road Magistrate's Court [1993] 3 All ER 138, it is held that on the application of abuse of process, the court confirms that an abuse of process justifying the stay of prosecution could arise in the following circumstances: (i) where it would be impossible to give the accused a fair trial; or (ii) where it would amount to misuse/manipulation of process because it offends the court sense of justice and propriety to be asked to try the accused in the circumstances of the particular case.
9. In the present case, it cannot be determined from the material available on record that the petitioner cannot receive a fair trial because investigation is still in continuation. It is settled law that if allegations made in the FIR prima facie disclose cognizable offence, interference in investigation is not proper and it can be done only in the rarest of rare cases where the Court is satisfied that the prosecution is malicious and vexatious.
5Without a thorough investigation, it is not possible or proper to hold whether the allegations made by the complainant are true or not. Hence, the investigation should have been allowed to continue so that on filing of the report under Section 173 of the Code of Criminal Procedure affected party could pursue its remedy against the report in accordance with law.
10. In the case of Pastor P. Raju (supra) in paragraph 15 it has been observed as follows:-
"There is another aspect of the matter which deserves notice. The FIR in the case was lodged on 15.1.2005 and the petition under Section 482 Cr.P.C. was filed within 12 days on 27.1.2005 when the investigation had just commenced. The petition was allowed by the High Court on 23.2.2005 when the investigation was still under progress. No report as contemplated by Section 173 Cr.P.C. had been submitted by the incharge of the police station concerned to the Magistrate empowered to take cognizance of the offence. Section 482 Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash the criminal proceedings pending in any Court but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence. This question has been examined in detail in Union of India v. Prakash P. Hinduja & Anr. (2003) 6 SCC 195, where after referring to King Emperor v.
Khwaja Nazir Ahmad AIR 1945 PC 18, H.N. Rishbud & Inder Singh v. The State of Delhi AIR 1955 SC 196, State of West Bengal v. SN Basak AIR 1963 SC 447, Abhinandan Jha & 5 MCRC- 27246-2017 Ors. v. Dinesh Mishra AIR 1968 SC 117 and State of Bihar & Anr. v. JAC Saldanha & Ors. (1980) 1 SCC 554, it was observed as under in para 20 of the reports :-
"20. Thus the legal position is absolutely clear and also settled by 6 judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of police station in court under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating agency." This being the settled legal position, the High Court ought not to have interfered with and quashed the entire proceedings in exercise of power conferred by Section 482 Cr.P.C. when the matter was still at the investigation stage"
11. Similarly in the case of D.V. Subramaniam (supra), the Hon'ble apex Court has held that it has been statutory duty of the police to investigate into the crime and the courts normally ought not to be interefered and guide the investigation agency as to and in what manner the investigation is to be proceeded.
12. Apex Court in State of West Bengal & Ors. vs. Swapan Kumar Guha & Ors. (AIR 1982 SC 949) had the occasion to deal with this issue. Three Judge Bench laid down the following principle:
"........The condition precedent to the commencement of investigation under S.157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under S.157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence."
13. The Hon'ble Apex Court in paragraphs 29 and 30 of the 7 said decision has held as under:
"29. The High Court, in our view, failed to see the extent of its jurisdiction, which it possess to exercise while examining the legality of any FIR complaining commission of several cognizable offences by accused persons. In order to examine as to whether the factual contents of the FIR disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency and nor can exercise the powers like an appellate Court. The question, in our opinion, was required to be examined keeping in view the contents of the FIR and prima facie material, if any, requiring no proof.
30. At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. It was more so when the material relied on was disputed by the Complainants and visa-se-versa. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the Court to examine the questions once the charge sheet is filed along with such material as to how far and to what extent reliance can be placed on such material."
14. From the perusal of the FIR, it reflects that the FIR has been registered against the applicant for commission of cognizable offence and the investigation is going on, therefore, in the context of law laiddown by the apex court in the above mentioned cases, it will not be appropriate to quash the FIR at this stage and the investigtion cannot be interfered with by invoking the extra ordinary jurisdiction under Section 482 of the Cr.P.C. Hence, the present application is dismissed granting liberty to the applicant to raise all the objections before the trial Court at an appropriate stage, if the charge-sheet is filed against him.
15. Let a copy of the order be sent to the trial Court for information.
Certified copy as per rules.
(S. K. Awasthi)
skt Judge
Santosh Kumar Tiwari
2020.01.16 16:06:56 +05'30'
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