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Madhya Pradesh High Court

Padam Singh vs The State Of Madhya Pradesh on 23 June, 2017

Author: S.K.Awasthi

Bench: S.K.Awasthi

                                   -( 1 )-                 Cr.R.No. 550/2016

          HIGH COURT OF MADHYA PRADESH
                         BENCH AT GWALIOR
                             SINGLE BENCH
                BEFORE JUSTICE S.K.AWASTHI
                Criminal Revision No. 550/2016
                                 Padam Singh
                                     Versus
                                 State of M.P.
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Shri Sanjay Bahirani, learned counsel for the applicant.
Shri     A.S.     Yadav,       learned        Panel        Lawyer        for    the
respondent/State.
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                                  ORDER

(23.06.2017) This revision application takes exception to the order dated 11.05.2016 passed in Sessions Trial No. 72/2016 by Second Additional Sessions Judge Morena, whereby the trial court has framed the charges against the present applicant for commission of offence punishable under Sections 420, 468 & 471 of Indian Penal Code (for short 'IPC') and Section 3/7 of the Essential Commodities Act, 1955.

2- The facts relevant for deciding the instant application are that on 11.12.2014, an inspection was conducted by the Government officials on the fair price shop allotted in the name of applicant and stock register as well as other relevant documents were seized. During the inquiry, it was revealed that the present applicant had diverted the commodities which were supposed to be supplied to the BPL card holder. In order to commit the offence, the applicant is an accused of fabricating the eligibility slip for dispensing the essential commodities to the ineligible persons whereas, -( 2 )- Cr.R.No. 550/2016 eligible persons have recorded their statements in which they have stated that they had not received any such food grains. Consequently, the respondent has registered an FIR against the applicant and filed charge sheet before the court of competent jurisdiction. 3- The trial court vide order dated 11.05.2016, framed the charges against the applicant for the offences indicated above and while doing so, the trial Court has taken note of contention canvassed by the applicant to the framing of charges against him. 4- Learned counsel for the applicant has submitted that according to the prevailing policy with respect to the food distribution system, in case any dispensation of food articles is made to an ineligible person, then responsibility of this conduct is on the concerned Janpad Panchayat. In order to fortify this submission, learned counsel for the applicant has placed reliance on clause-8 of the scheme. It is further vehemently argued that as per clause 11 (3) of the Madhya Pradesh Distribution System (Control) Order, 2009, maximum punishment which can be imposed for the allegation of diverting the food grains to an ineligible person is recovery of the value of such commodity. Therefore, learned counsel has submitted that the trial Court has erred in framing the charges against the applicant under the provision of Indian Penal Code. The next relevant contention which has been canvassed is on the basis of judgment render by Division Bench of Allahabad High Court in Pepsico India Holding Pvt. Ltd. Vs. State of U.P. 2010(2) EFR 500, to submit that perusal of Section 5 of IPC provides for that if there is special law regulating particular conduct or action, -( 3 )- Cr.R.No. 550/2016 then provision of Indian Penal Code cannot be borrowed to punish such conduct; meaning thereby that the prosecution under IPC is not maintainable if any special law controlling the facts of the case. Consequently, it is submitted that the order of framing charges against the applicant may be set-aside.

5- Per contra, learned counsel appearing on behalf of respondent has submitted that the contentions canvassed by learned counsel for the applicant are at best the defense offered by the applicant which can only before the trial Court and the same cannot be adjudicated by this court in exercising of revisional jurisdiction. Therefore, he prays that the revision being devoid of merit, is liable to be dismissed. 6- Considered rival contentions canvassed by the respective parties and perused the record. 7- The first contention which deserves consideration is with respect of clause 11 (3) of Madhya Pradesh Public Distribution System (Control) Order 2009 demonstrates that it is non-obstante clause; meaning thereby that it does not over riding effect to their applicable provision of law and therefore, the proceedings can be drawn under the IPC without there being any illegal impediment. Further, it is pertinent to observe that such provisions will have applicability to the facts wherein the transaction which is in question is a bonafide transaction which is not coupled with any ill motive. Whereas in the present case, there is clear allegation, though it deserves to be proved before the trial Court the present applicant has fabricated eligibility slips and have distributed the food-grains to ineligible persons.

8- The next contention is on the basis of judgment Pepsico India Holding Private Limited (Supra). Having perusal the ratio of the case, this Court is of the considered opinion that the facts of the said case is clearly distinguishable and the law laid down will only be attracted in scenario where there is inconsistency in two provisions of law. Only in those cases, special law will prevail over the general law and not otherwise. 9- The last contention canvassed before this Court is on the basis of clause-8 of the scheme which provides for if any eligible person does not get the benefit of the scheme and the same is given to any ineligible person then responsibility of the same will be on the concerned Janpad Panchayat. Thus, it is contended that the present applicant cannot be made liable for the act which is to be observed by the Janpad Panchayat. This contention can only be established while leading evidence because this court cannot accept the existence of fact without affording opportunity to lead evidence for establishing the involvement of applicant. Whether for the given circumstances, the liabilities lies on the concerned Janpand Panchayat or on the present applicant is a question of law which will be decided by the trial Court after affording opportunity of hearing to the respective parties.

10- Before parting, it will be appropriate to observe that the allegation made against the applicant are hinting towards its personal involvement in the fabrication of document which has been used for committing cheating. Therefore, no indulgence can be shown by this Court. At this stage, it is observed that mere dismissal of revision will not prejudice the trial -( 5 )- Cr.R.No. 550/2016 Court, and trial Court will examine the defence put- forth by the applicant without being influenced by the observation made in this order.

11- For the reasons indicated above, revision is dismissed being devoid of merits.

(S.K.Awasthi) Judge Aman