Jharkhand High Court
Ramesh Gandhi vs State Of Bihar And Anr. on 24 November, 2004
Equivalent citations: 2005(1)BLJR511, 2005CRILJ2818, [2005(1)JCR286(JHR)], 2005 CRI. L. J. 2818, 2005 AIR - JHAR. H. C. R. 1018, (2005) 1 JCR 286 (JHA), 2005 (1) BLJR 511, (2005) 2 JLJR 595, (2005) 1 EASTCRIC 538
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
ORDER Amareshwar Sahay, J.
1. By filing this application, the petitioner has prayed for quashing of the order dated 18.1.1999, taking cognizance of the offences under Sections 420/468/379/120B of the Indian Penal Code and Section 7 of the Essential Commodities Act and the entire criminal proceeding against him.
2. The facts in brief are that a First Information Report being Govindpur P.S. Case No. 305 of 1993 was registered under Sections 420/468/471/379/120B of the Indian Penal Code on the basis of written report submitted by the Inspector (Food), C.I.D. Dhanbad, against the accused persons named in the FIR including the petitioner. The gist of the allegations made in the FIR is that on the basis of a complaint by one Mr. M.P. Narang of M/s. Narang Hard Coke Manufacturing, Barwa Adda, his Hard Coke Factory premises was inspected on 13.6.1993; 14.6.1993; 16.6.1993 and 16.8.1993. During inquiry, it was found that the accused, R.K. Jain was illegally using the factory premises for the purpose of smuggling and black marketing of coal in connivance and in conspiracy with other accused named in the FIR including the petitioner, Ramesh Gandhi. So far as allegation against the petitioner is concerned, in the FIR, it is alleged that Ramesh Gandhi (petitioner) of M/s. Shiva Coal Traders sold about 260 M.T. of Coal to the accused, R.K. Jain in the year 199293. The petitioner is said to have lifted the coal from V.I.P. quota and thereafter instead of transporting the said coal to its destination, he used to smuggle the said coal in conspiracy with accused, R.K. Jain and thereby helped the accused, R.K.Jain in smuggling and black marketing of the coal.
3. The police after completion of investigation submitted charge-sheet against the petitioner and other accused persons. The learned Spl. Judge (E.C. Act), Dhanbad after perusing the case diary, as well as charge-sheet submitted by the police, took cognizance of the offences under Sections 420/468/379 and 120B of the Indian Penal Code as well as under Section 7 of the Essential Commodities Act and issued summons for their appearance by the impugned order.
4. Learned counsel for the petitioner has submitted that the cognizance and the criminal prosecution, so far as against the petitioner is concerned, was wholly illegal, as no case at all of any criminal nature or for the offences alleged is made out. Elaborating his argument, learned counsel for the petitioner submitted that the coal, which was included in Schedule I, Part-E of the Bihar Trade Articles (Licensing Unification) Order, 1984, was deleted on and from 21.4.1992 by issue of a notification in the Official Gazette dated 21.4.1992 by the Government of Bihar and therefore, for any transaction in coal, after the said notification published in gazette dated 21.4.1992, no offence can be said to have been committed by the petitioner. It is further submitted that there was no transaction of coal by the petitioner with the co-accused, R.K. Jain after 21.4.1992.
5. It was next submitted that the allegation of sale of coal by the petitioner to R.K. Jain can not be said to be a part of conspiracy for commission of the offence alleged. There is no mention in the FIR regarding the fact as to how the petitioner has committed the offence of conspiracy and, therefore, with the aid of Section 120B of the Indian Penal Code, the petitioner cannot be prosecuted with the other accused persons named therein.
According to the petitioner there must be solid facts for commission of the offence of conspiracy, which was absent in the present case and therefore the entire criminal prosecution against the petitioner was bad in law. In support of his submission, learned counsel for the petitioner has relied on a decision in the case of State (Delhi Admn.) v. V.C. Shukla, reported in AIR 1980 SC 1382.
6. It was next contended that from perusal of the order taking cognizance, it would appear that the learned Spl. Judge has not applied his judicial mind, before taking cognizance, rather it appears that the cognizance has been taken in a mechanical manner and, therefore, the order taking cognizance is bad in law. In support of such submission learned counsel for the petitioner has relied on the decisions in the case of Union of India v. Prakash P. Hinduja and another, reported in (2003) 6 SCC 195; and the case of B.S. Joshi and Ors. v. State of Haryana and another, reported in (2003) 4 SCC 675 and Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and others, reported in (1998) 5 SCC 749.
7. On the other hand, learned counsel for the State has argued that no interference is required by this Court at this stage, as the Spl. Judge has fully applied his mind before taking cognizance and he after perusal of the materials collected during investigation appearing in the case diary, as well as charge-sheet, has taken cognizance, which is apparent from the impugned order and, therefore, it is wrong to say that the learned Spl. Judge has not applied his judicial mind.
8. From perusal of the decision of the S.C. in the case of State (Delhi Administration) v. V.C., (supra), it appears that Supreme Court has held that in order to prove a criminal conspiracy which is punishable under Section 120B, there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence. This clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. It is true that in most cases it will be difficult to get direct evidence of an agreement to conspire but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence.
9. There is no dispute with regard to settle law on this point by the Supreme Court but the said decision is of no help to the petitioner in the present case because the present case is at the stage of taking cognizance i.e. initiation of a criminal proceeding whereas the case before Supreme Court was after conclusion of the trial i.e. after the evidence was led by the prosecution. Since the stage of proof of the allegation has not yet come in the present case and, therefore, in my view, the decision aforesaid of the Supreme Court is not applicable in the facts and circumstances of the present case at this stage.
10. The decision of the Supreme Court Union of India v. Prakash P. Hinduja and another, reported in 2003 (6) SCC 195 also does not appear to be helpful to the petitioner on the point raised by him. Rather in the said decision, the Supreme Court has held that Section 482, Cr PC 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. The power can therefore be exercised to quash the criminal proceedings. The grounds on which power under Section 482, Cr PC can be exercised are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused; (2) 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 (3) where there is an express legal bar engrafted in any of the provisions of the Code of Criminal Procedure or the act concerned to the institution and continuance of the proceedings. But this power has to be exercised in a rare case with great circumspection.
11. The decision of the 2003 (4) SCC 675 cited on behalf of the petitioner is also not applicable in the facts and circumstances of the present case as in the said case. It appears that Supreme Court was deciding the scope and ambit of power under Section 482 in matrimonial dispute when such matters are resolved either by the wife agreeing to rejoin the matrimonial home or mutual separation of husband and wife and also mutual settlement of other pending disputes.
12. From the decision in the case of Pepsi Food Ltd., 1998 (5) SCC 749, it appears that after dealing with Section 204, Cr PC the Supreme Court held as follows :-
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations of otherwise and then examine if any offence is prima facie committed by all or any of the accused".
13. From the aforesaid decision of the Supreme Court in the case of Pepsi Food, (supra), it appears that the Supreme Court has given the aforesaid guideline relating to a case arising put of private complaint. In a case of private complaint the Magistrate, after filing of private complaint, examinees the complaint on solemn affirmation, then records the statements of the witnesses produced on behalf of the complainant in course of inquiry under Section 202, Cr PC and then after scrutinizing the materials so produced on behalf of the complainant, he decides as to whether the prima facie case for proceeding against the accused and for summoning is made out or not? Whereas in a case arising out of the first information report the Magistrate is not required to examine the informant on solemn affirmation nor he records the statement of any witness but in fact he only applies his mind to the allegations made in the FIR and the materials collected during investigation by the police and the report submitted under Section 173, Cr PC and then comes to the conclusion, as to whether from the materials collected during investigation by the police the accused persons can be proceeded with or not?
14. It is well-settled that at the stage of taking cognizance arising out of a police case i.e. where a report under Section 173, Cr PC is submitted by the police, the Magistrate taking cognizance, is not required to discuss the evidence so collected by the police during investigation in his order taking cognizance of the offence to show that he has applied his mind before taking cognizance but in a case arising out of a private complaint, it is necessary for the Magistrate to do so as has been held by the Supreme Court in the case of Pepsi Food Ltd. 1998 (5) SCC 749.
15. The points raised on behalf of the petitioner that there was no transaction between the petitioner and the accused. R.K. Jain after the notification dated 21.4.1992 is a matter of evidence that stage has not come has yet and it can be gone into during the trial. It is for the prosecution to lead evidence on the said point at an appropriate stage as to whether there was any transaction between the petitioner and the accused, R.K. Jain prior to the date of notification i.e. 21.4.1992 or not. Therefore, the plea of the petitioner that there was no transaction between him and the accused, R.K. Jain at the relevant time at best can be said to be his evidence, which cannot be look into at this stage.
16. From the impugned order taking cognizance, it appears that learned Magistrate after application of his judicial mind i.e. after considering the materials in the case diary and the charge-sheet, has taken cognizance of the offences alleged and, therefore, I find no illegality in the said order. In view of my discussion and findings above, I find no merit in this application, accordingly, it is dismissed.
17. Since the case is of 1993, and therefore, the learned trial Court is directed to proceed with the trial and conclude the same as expeditiously as possible.