Allahabad High Court
Smt. Farmeeda Begum vs State Of U.P. And Another on 19 April, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD "A. F. R." Judgment Reserved on 30.03.2022 Judgment Delivered on 19.04.2022 Court No. - 91 Case :- APPLICATION U/S 482 No. - 14626 of 2021 Applicant :- Smt. Farmeeda Begum Opposite Party :- State of U.P. and Another Counsel for Applicant :- S.M. Iqbal Hasan Counsel for Opposite Party :- G.A.,Girish Chandra Yadav Hon'ble Syed Aftab Husain Rizvi,J.
1. Heard Sri S.M. Iqbal Hasan, learned counsel for the applicant, Sri Girish Chandra Yadav, learned counsel for the opposite party no.2, Sri Arvind Kumar, learned AGA for the State and perused the record.
2. This criminal misc. application under section 482 Cr.P.C. has been filed to quash the entire criminal proceeding of Case No.4907 of 2021 (State Vs. Farmeeda Begum and others), including Charge Sheet No.68 of 2021, dated 18.03.2021, arising out of Case Crime No.412 of 2020, under sections 420, 467, 468, 471, 120-B, 409, IPC and section 3/7 Essential Commodities Act, Police Station Munda Pandey, District Moradabad, as well as cognizance order dated 26.03.2021, passed by Additional Chief Judicial Magistrate, Court No.1, Moradabad.
3. Applicant is an accused in the aforesaid case. FIR has been lodged on 21.11.2020, on the application of complainant Mohini Mishra, Supply Inspector, Tehsil Sadar Moradabad. The application addressed to the SHO/SO, Police Station Munda Pandey, District Moradabad, and it is mentioned that kindly take reference to the letter No.3814 dated 08.09.2020 of Additional Commissioner, Food & Supply Department, Moradabad, annexing the letter No.369 dated 22.06.2020 of Mr. Ashok Kumar Mishra, Deputy Secretary, Government of U.P. and letter No.256 dated 11.02.2020 of Vishal Bharadwaja, Staff Officer, Chief Secretary & Additional Director (Administration). The inquiry report of Food Cell, forwarded for necessary action. In continuation of the aforesaid you are hereby informed that the D.O. Letter No.110 dated 22.01.2020 of Mr. Dayanand Mishra, S.P. Food Cell, annexing the photocopy of the inquiry report of Mr. Umesh Chand Pandey, Police Inspector, Food Cell, dated 08.01.2022. According to inquiry report, the allegations levelled against Smt. Farmeeda Begum, was inquired by Mr. Umesh Chand Pandey, Police Inspector, Food Cell, Kanpur and according to inquiry report, Smt. Farmeeda Begum, has not properly distributed the Essential Commodities from April-2018 to July-2018, and she committed black marketing of it. The quantity of distributed commodities was determined by her own will and she has charged more price than the fixed price and has not distributed the commodities and kerosene oil. She has also committed forgery and cheating, by preparing false distribution register, false distribution certificate and false 'Farms Ka & Kha'. It is recommended that for the aforesaid act of Smt. Farmeeda Begum, a case under sections 420, 467, 468, 471, & 409, IPC and section 3/7 Essential Commodities Act, be registered against her and her agreement be cancelled. Mr. Mitra Pal Singh, the member of the Administrative Committee of Grama Panchayat, Mudiya Malookpur Mustkam, Block Munda Pandey, Tehsil and District Moradabad, in collusion with Smt. Farmeeda Begum has given a false certificate that Essential Commodities have been properly distributed, which shows his prima-facie involvement in the matter, hence case under sections 120-B, 420, 467, 468 and 471, IPC, be also registered against him. The agreement of fair price shop of Smt. Farmeeda Begum, Mudiya Malookpur, has already been cancelled on 21.05.2019 by the Sub-Divisional Magistrate, Sadar. After investigation charge sheet has been submitted.
4. Contentions of learned counsel for the applicant are that the applicant is a fair price shop dealer. She was running her shop in strict compliance by the provision of Control Orders under the supervision of three layer system i.e. distribution through camp, monitoring and checking by village Administrative Committee and third by the officials of the department. The frivolous and false complaint dated 17.07.2018 was lodged against the applicant by the rival group alleging that she has not properly distributed the commodities. Prior to this complaint also a complaint was made against the applicant pursuant thereto the cancellation order was passed and the Hon'ble High Court was pleased to stay the cancellation order by means of order dated 21.02.2018 Consequently her agreement was restored on 12.03.2018. Within four months the second complaint dated 17.07.2018 was again filed by the rival factions. After thorough inquiry the Area Food Officer made a report dated 30.07.2018 whereby he has stated that complaint was frivolous and forged. Another complaint was made on 23.07.2018. On this complaint the Sub Divisional Officer issued a charge sheet and sought explanation from the applicant. The applicant filed reply and refuting the allegations along with evidences. Sub Divisional Officer Sadar, Moradabad considered the reply and passed order dated 10.11.2018 wherein he has mentioned that in the village day to day complaints are being made against each other, therefore, it would be proper to hold an open meeting of Villagers so that the complaint may be disposed of properly. When the repeated efforts of complainant were failed and every time after inquiry complaints were found false then Mangal Singh and Shakeel again moved a complaint in Tehsil Diwas, pursuant thereto Revenue Inspector was authorized to conduct inquiry. The complainant approached the Inspector and offered illegal gratification and prepared a forge report sitting at the house of Mangal Singh. The several photographs were available while he was hosting a break fast, the applicant made a complaint of this event to the authority and when no action was taken against the Revenue Inspector the applicant moved an application before the Head Mahila Ayog, Chief Minister of Uttar Pradesh, Commissioner Principal Secretary and District Magistrate requesting therein for proper action. Having knowledge of the complaint made by the applicant, the departmental officers become infuriated and challenged the applicant for teaching her a lesson. In compliance of the order dated 14.01.2019 applicant has filed detailed reply to the charge sheet alongwith three months distribution record on 03.01.2019. The authorities concerned instead of holding open meeting proceeded in the matter and passed the cancellation order dated 21.02.2019. Against the cancellation order the applicant has preferred a Civil Misc. Writ Petition No.8861 of 2019. The Hon'ble High Court was pleased to stay the operation of the impugned order till the next date of listing and thereafter on 25.04.2019 the writ petition was dismissed on the ground of alternative remedy. The applicant preferred an appeal before the Commissioner Moradabad Division Moradabad. During pendency of the appeal the Supply Inspector issued an order dated 06.07.2019 whereby he asked the distribution record in pursuance to some back dated order dated 29.01.2019. The applicant challenged the validity of the order by means fo writ petition No.23138 of 2019. The Hon'ble High Court was pleased to stay the order dated 06.07.2019 till the next date of listing. Meanwhile the appeal was dismissed by the Commissioner Moradabad Division Moradabad on 25.11.2019, against which the applicant has preferred a Civil Misc. Writ Petition No.21116 of 2020 before this Hon'ble Court, which is pending consideration. The respondent authorities being prejudiced and having malice against the applicant, has proceeded in the matter despite having the stay order dated 18.07.2019. Civil proceeding is pending and there is no evidence which remotely connect the applicant with black marketing. Allegations against the applicant are general. There is no specific allegations.
It is further contended that investigating officer has annexed the record distribution as part of case diary. The investigating officer also recorded the statement of Mohd. Zaki, the person, is now a subsequent dealer appointed in place of Farmeeda and he was instrumental in the cancellation of the agreement of the shop of the applicant. He is prejudiced and not independent witness. The learned counsel also contended that neither in the FIR nor in the entire case diary there is any reference of any control order violation, hence no offence under section 3/7 of Essential Commodities Act is made out.
Learned counsel for the applicant further contended that from the impugned cognizance order it transpires that no reasoning have been given instead the order is a mechanical order, therefore, the cognizance order is illegal and liable to be quashed. The allegations against the applicant is of forgery and preparing forged distribution certificate where as the distribution was made by the applicant correctly under videography and still photograph but in spite of that due to village party politics and due to annoyance of respondent authorities the present criminal proceeding has been initiated against the applicant. Annoyed with the repeated relief granted by the High Court, criminal case has been instituted maliciously, due to reason that applicant has made a complaint to higher authorities against the revenue inspector, FIR has been lodged with ulterior motive for wreaking vengeance. It is evident that the entire proceeding against the applicant, who is lady is malicious, prejudiced and due to party politics whereas the fact of the matter is that no offence is made out against the applicant. Without collecting the expert examiner report, the investigating officer filed charge sheet, which is apparently erroneous. There is no direct evidence which indicates that the applicant has committed any crime. The present criminal proceeding is nothing but manifestly attended with malafide as the applicant has made complaint of the official, who became prejudiced against her.
Learned counsel for the applicant placed reliance on the case of 'Babubhai Vs. State of Gujarat, 2010 CJ(SC) 1429 and also on the case of 'Jahoor Vs. State of U.P. and another', in Criminal Revision No.569 of 2021, decided on 25.10.2021.
5. Learned AGA for the State and learned counsel for the opposite party no.2 submitted that after inquiry by food cell it was found that applicant has committed irregularities in distribution of essential commodities and she has sold the Ration in black market. There are clear allegations against the applicant. The investigating officer has recorded the statements of the witnesses and has collected material evidence during the course of investigation and on the basis of credible evidence, has submitted the charge sheet. The learned Magistrate being satisfied with it has taken cognizance on it. There is no sufficient grounds to quash the charge sheet or summoning order. There is no illegality in the impugned summoning order.
6. Admittedly the applicant was a fare price shop dealer of Village Mudiya Malookpur, District Moradabad. The FIR has been lodged against her on 21.11.2020. In the affidavit filed in support of the application, the applicant has given details of various complaints and proceedings, which has been made against her, prior to this FIR. It is specifically stated that on 17.07.2018 a complaint was lodged against her for not property distributing the commodities. Prior to this complaint, another complaint was made against her and cancellation order was passed. The High Court was pleased to stay the cancellation order, by means of order dated 21.02.2018. Consequently, her agreement was restored on 12.03.2018. It is further stated that within four months, second complaint dated 17.04.2018 was again filed by the rival, and after thorough inquiry this complaint was found frivolous and forged. Another complaint was made on 23.07.2018 and on this complaint the Sub Divisional Officer issued a charge sheet and sought explanation from the applicant. The Sub Divisional Officer passed the order dated 10.11.2018 mentioning therein that in the village day to day complaint are being made against each other, therefore, it would be proper to hold an open meeting of villagers, but no open meeting was held. Again a complaint was made on 16.10.2018 in Tehsil Diwas, which was disposed of by order dated 23.10.2018. It is further alleged that when repeated efforts of complainant failed and every time complaints were found false, then a complaint was moved in Tehsil Diwas and revenue inspector was authorized to conduct the inquiry. Complainant approached him and offered illegal gratification and prepared a forged report, setting at the house of complainant Mangal Singh. Several photographs were available hosting a breakfast. The applicant has raised these matters to the concerned authorities and when no action was taken against the revenue inspector, she moved applications before Mahila Ayog, Chief Minister of U.P. and other authorities for proper action against the revenue inspector. Having knowledge of complaint, the departmental officers became infuriated and challenged the applicant for teaching a lesson. The FIR has been lodged maliciously. In counter affidavit filed by the opposite party, the aforesaid facts have not been specifically controverted. So from the material available on record it is established that prior to lodging of this FIR, several false and frivolous complaints were filed against the applicant and ultimately inquiry was entrusted to the revenue inspector, who was approached by complainant party and applicant made a complaint against him.
7. All the allegations of the FIR are general in nature. There is no specific allegation. The only allegations of the FIR are that the fair price shop dealer, charges more than the fixed price, and distribute commodities in less quantity and when weighed at home, it weight is found less. In the statements of witnesses recorded by the instigating officer also there are almost general allegations in the nature mentioned above. Witnesses Mohd. Zaki is the persons who has got fair price shop after cancellation of the quota of accused-applicant. There is also no specific allegations that what kind of forgery has been committed by the accused-applicant and which entry is forged. In absence of specific allegations, the ofence of cheating and forgery cannot be proved. There is no reference of any violation of any control order in the FIR, but section 3/7 of Essential Commodities Act has been imposed. So, if the evidence available on record is taken on its face value as true, even then it will not be sufficient to convict the accused-applicant.
8. In case of 'State of Haryana and others Vs. Ch. Bhajan Lal and others', in Civil Appeal No.5412 of 1990, decided on 21.11.1990, the Hon'ble Apex Court in paragraph no.108 has laid down following norms for exercising powers under section 482 Cr.P.C.":-
"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(i). 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.
(ii). Where the allegations in the First Information Report and other materials, if any, accompanying the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(iii). 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.
(iv). Where, the allegations in the F.I.R. 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 under Section 155(2) of the Code.
(v). Where the allegations made in the F.I.R. 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.
(vi). 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 specific provision in the Code or the oncerned Act, providing efficacious redress for the grievance of the aggrieved party.
(vii). Where a criminal proceeding is manifestly attended with mala fide 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."
9. The Hon'ble Supreme Court in the case of "Prakash Babu Raghubansi Vs. State of M.P., (2004) 7 SCC 482, in paragraph no.5 has made following observations:-
"Section 7 refers to contravention of any order made under Section 3. It is essential for bringing in application of Section 7 to show that some order has been made under Section 3 and the order has been contravened. Section 3 deals with powers to control production, supply, distribution etc. of essential commodities. Exercise of such powers, can be done by "order". According to Section 2(c) "notified order" means an order notified in the official Gazettee, and Section (CC) provides that "order" includes a direction issued thereunder."
So the Hon'ble Apex Court has propounded that for an offence under section 3/7 Essential Commodities Act, violation of any commody control order, should be there.
10. It is clear from the analysis of material on record that the criminal proceeding of this case is maliciously attended with malafide. It has been instituted with an ulterior motive for wreaking vengeance on the accused-applicant with a view to spite him due to private and personal grudge. It is also clear that, even if the evidence available on the record is taken on its face value as true, even then it will not be sufficient to convict the accused-applicant.
11. The preposition of law as laid down by Hon'ble Apex Court in the case of 'State of Haryana and others Vs. Ch. Bhajan Lal and others'(supra) and "Prakash Babu Raghubansi Vs. State of M.P.(supra), are fully applicable on the present case. Keeping in view the proposition of law the facts and circumstances of the case, the present application under section 482 Cr.P.C. is liable to be allowed.
12. The criminal misc. application under section 482 Cr.P.C. is allowed and the entire criminal proceedings relating to aforementioned case is hereby quashed.
Order Date :- 19.03.2022/VKG