Madhya Pradesh High Court
Shivam Vaisnav vs The State Of Madhya Pradesh on 2 September, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC--JBP:44533
1 W.P.20914/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 2nd OF SEPTEMBER, 2024
WRIT PETITION No. 20914 of 2022
SHIVAM VAISNAV AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Anil Lala- Advocate for petitioners.
Shri Gajendra Parashar-
Parashar Panel Lawyer for the respondents/State.
ORDER
This petition under Article 226 22 of Constitution of India has been filed seeking the following reliefs:-
reliefs:
"(i) This Hon'ble Court may be pleased to issue a suitable writ/direction for setting aside the impugned orders dated 18.08.2022 passed in Ra.Pr.Kis.
MPB/121/2022 MPB/121/2022-23 passed by respondent No. 2 (Annexure P1) and the order dated 26.08.2022 (Annexure-P1) passed in Ra.Pr.Kr. 148B/121/2022-23 148B/121/2022 23 passed by respondent No. 5 (Annexure-P/6), (Annexure P/6), in the interest of justice.
(ii) Any other suitable relief deemed fit in the facts and circumstances of the case and cost of the petition may also be given by this Hon'ble Court.
Court."
2. It is submitted by counsel for petitioners that the Government Fair Price Shop,, Lidhorahat Lidhoraha Code No. 1001194 was physically inspected by Junior Supply Officer, Sagar Rural on 10.08.2022. The salesman Shivam Vaishnav/Petitioner No. 1 and FPS 2 Amarjeet Singh/Petitioner NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 2 W.P.20914/2022 No. 2 were present and it was found that the shop was being operated from one room situated in the house of Devisingh. The price list was found to be empty. The foodgrains food were ere verified as per the record record. 80 kg of Bajra and 1.35 kg of Rice was found; whereas, no sugar, salt, wheat, Moong Dal, Jawar, Kerosen was found. The statement of Sachin, Kailash, Kalyan, Rameshwar, Smt. Sitarani, Smt. Janakrani, Smt. Santoshrani, ntoshrani, Bhoopendra, Bhoopen Bahadur and Bharat who are the beneficiaries were recorded. It was informed that after introduction of free Rashan Yojna,, free Rashan was distributed only once. Thereafter, free Rashan was never distributed and Rashan was sold. The salesman also obtai obtained their thump impression in POS machine but full quantity of Rashan is ven the slip is also not given. The Moong Dal which was never given. Even meant for the students of Government School was also never distributed. The statements statement of petitioners were recorded and foodgrains were compared with the stock mentioned in the stock register and it was found that 287.12 quintal of wheat, 82.79 quintal of rice, 2.79 quintal of sugar and 12.40 of salt, 5.8 quintal of Moong Dal and 2.40 quint quintal of Bajra was less and it was found that the total market value of sshort foodgrain grain is Rs. 12,18,870/-.
12,18,870/ . Thus, it was held in the inquiry report that the petitioners have embezzled an amount of Rs.12,18,870/ Rs.12,18,870/-.
Accordingly,, SDO (Revenue), Sagar directed for issuance of notice to the petitioners.
3. An FIR was also lodged on 18.08.2022 in Crime No. 312/2022, registered at Police Station Baheriya, District Sagar for offence under Sections 420, 409, 34 of IPC and under Section 3 and 7 of Essential Commodities Act.
ct. It is submitted that by order dated 26.08.2022, the NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 3 W.P.20914/2022 shop of the petitioners was attached with Government Fair Price Shop, Girwar, Shop Code No. 1001153, 1001153 after fter suspending the licence of the petitioners to run the Government Fair Price Shop, Lidhorahat.
4. Challenging the order dated 26.08.2022 passed by SDO (Revenue), Sagar, it is submitted by counsel for petitioners that as per Clause 16 of PDS Control Order, 2015, 2015 a show cause notice has to be given within a period of 10 days from the date of suspensio suspension of shop and the final order on the question of suspension has to be passed within a period of three months from thereafter.
5. It is fairly conceded that since the effect and operation of the order dated 26.08.2022 was stayed by Co-ordinate Co ordinate Bench of thi this Court by interim order dated 16.09.2022, therefore, no further proceedings have taken place. It is further submitted that before registering the FIR, respondents should have given an opportunity of hearing to the petitioners.
6. Per contra,, the petition is vehemently opposed by counsel for State. It is submitted that no suspect/accused suspect/accused has a right of pre pre-audience before registration of FIR. The physical verification of the shop was conducted inn presence presence of petitioners and the food foodgrains worth s ort. Thus, it is clear that prima facie the Rs.12,18,870/- were found short. petitioners tioners have embezzled the foodgrains food worth Rs. 12,18,870/ 12,18,870/-. There is no provision under PDS Control Order, 2015 thereby excluding the applicability of provisions of IPC. Embezzlement Embezzlement of food foodgrains is a criminal offence.
7. It is further submitted that so far as the the action under Clause 16 of PDS Control Order, 2015 is concerned, since the effect and operation of NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 4 W.P.20914/2022 order dated 26.08.2022 was stayed by Co-ordinate ordinate Bench of this Court, therefore, noo further action could be taken. Accordingly, it is submitted that respondents may be permitted to issue a notice under Clause 16(3) of PDS Control Order, 2015 which shall be decided within a period of three months from today.
8. Heard learned counsel for parties.
9. Undisputedly, the physical verification of the shop was conducted in the presence ce of the petitioners. The foodgrains foodgrains worth Rs.12,18,870 Rs.12,18,870/-
were found short.
ort. The counsel for petitioners petitioner could uld not point out any provision from the PDS Control Order, Order, 2015 to show that the provision provisions of IPC would not apply. Embezzlement of foodgrains food which is meant to be distributed to the poor personss or to the beneficiaries is certainly an offence.
10. Furthermore, Clause 16(8) of PDS Control Order, 2015 clearly provides that on finding an irregularity in operation of a fair price shop, if it is expedient in the opinion of the Collector, prosecution against chairman or head of the society/salesperson/employee of institution may be initiated. Thus, it is clear that the t provisions of IPC have been made applicable.
11. The Supreme Court in the case of State of M.P. v. Rameshwar, (2009) 11 SCC 424 has held as under:-
"48. Mr Tankha's submissions, which were echoed by Mr Jain, that the M.P. Cooperative Societies Act, 1960 was a complete code in itself and the remedy of the prosecuting agency lay not under the criminal process but within the ambit of Sections 74 to 76 thereo thereof, cannot also be accepted in view of the fact that there is no bar under the M.P. Cooperative Societies Act, 1960, to take NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 5 W.P.20914/2022 resort to the provisions of the general criminal law, particularly when charges under the Prevention of Corruption Act, 1988, are involved."
in
12. The Supreme Court in the case of Dhanraj N Asawani Vs. Amarjeetsingh Mohindersingh Basi and Others decided on 25/07/2023 in Criminal Appeal No.2093/2023 has held as under: -
" 27. From the narration of submissions before this Court, it appears appears that on 31 May 2021, the Minister in - charge of the Co - operative depar tment has set aside the audit report while directing a fresh audit report for 2016
- 2017 and 2017 - 2018. The order of the Minister has been called into question in independent proceedings before the High Court. This Court has been apprised of the fact that t he proceedings are being heard before a Single Judge of the High Court. The proceedings which have been instituted to challenge the order of the Minister will have no bearing bearing on whether the investigation by the police on the FIR which has been filed by the appellant should be allowed to proceed. The police have an independent power and even duty under the CrPC to investigate into an offence once information has been drawn to their attention indicating the commission of an offence. This power is not curtaile d by the provisions of 1960 Act. There is no express bar and the provisions of Section 81(5B) do not by necessary implication exclude the investigative role of the police under nder the CrPC."
13. Furthermore, no suspect has a right of pre-audience audience before registration of FIR.
14. The Supreme Court in the case of Romila Thapar and Others Others by judgment dated 28th September, Vs. Union of India and Others, NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 6 W.P.20914/2022 2018 passed in Writ Petition (Criminal) No.260 of 2018 has held as under:
"20. After having given our anxious consideration to the rival submissions and upon perusing the pleadings and documents produced by both the sides, coupled with the fact that now four named accused have approached this Court and have asked for being transposed as writ petitioners, the following broad points may arise for our consideration:
(i)) Should the investigating agency be changed at the behest of the named five accused?
(ii) If the answer to Point (i)) is in the negative, can a prayer of the same nature be entertained at the behest of the next friend of the accused or in the garb of PIL?
(iii)) If the answer to Questions
(i) and/or (ii)) above, is in the affirmative, have the petitioners made outt a case for the relief of appointing Special Investigating Team or directing the court court-
monitored investigation by an independent investigating agency?
(iv)) Can the accused person be released merely on the basis of the perception of his next friend (writ petitioners) etitioners) that he is an innocent and law abiding person?
21. Turning to the first point, we are of the considered opinion that the issue is no more res integra. In Narmada Bai v. State of Gujarat [Narmada Bai v. State of Gujarat Gujarat, (2011) 5 SCC 79 : (2011) 2 SCC (Cri) 526] , in para 64, this Court restated that it is trite law NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 7 W.P.20914/2022 that the accused persons do not have a say in the matter of appointment of investigating agency. Further, the accused persons cannot choose as to which investigating agency must investigate investigate the offence committed by them. Para 64 of this decision reads thus : (SCC p. 100)
64. ... It is trite law that the "64.
accused persons do not have a say in the matter of appointment of an investigating agency. The accused persons cannot choose as to whicwhich investigating agency must investigate the alleged offence committed by them."
(emphasis supplied)
22. Again in Sanjiv Rajendra Bhatt v. Union of India [Sanjiv Rajendra Bhatt v. Union of India India, (2016) 1 SCC 1 : (2016) 1 SCC (Cri) 193 :
(2016) 1 SCC (L&S) 1] , the Court restated that the accused had no right with reference to the manner of investigation or mode of prosecution. Para 68 of this judgment reads thus : (SCC p.
40) "68. The accused has no right with reference to the manner of investigation or modee of prosecution.. Similar is the law laid down by this Court in Union of India v. W.N. Chadha [Union Union of India v. W.N. Chadha,, 1993 Supp (4) SCC 260 : 1993 SCC (Cri) 1171] , Mayawati v. Union of India [Mayawati v. Union of India India, (2012) 8 SCC 106 : (2012) 3 SCC (Cri) 801] , Dinubhai Boghabhai Solanki v. State of Gujarat [Dinubhai Dinubhai Boghabhai Solanki v. State of Gujarat,, (2014) 4 NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 8 W.P.20914/2022 SCC 626 : (2014) 2 SCC (Cri) 384] , CBI v. Rajesh Gandhi [CBI v. Rajesh Gandhi Gandhi, (1996) 11 SCC 253 : 1997 SCC (Cri) 88] , CCI v. SAIL [CCI v. SAIL,, (2010) 10 SCC 744] and Janata Dal v. H.S. Chowdhary [Janata Dal v. H.S. Chowdhary,, (1991) 3 SCC 756 :
1991 SCC (Cri) 933] ."
(emphasis supplied)
23. Recently, a three-Judge three Judge Bench of this Court in E. Sivakumar v. Union of India [E. Sivakumar v. Union of India,, (2018) 7 SCC 365 : (2018) 3 SCC (Cri) 49] , while dealing with the appeal preferred by the "accused" challenging [ Anbazhagan v. Union of India the order [J. India, 2018 SCC OnLine Mad 1231 : (2018) 3 CTC 449] of the High Court directing invest investigation by CBI, in para 10 observed : (SCC pp. 370 370-71) "10.. As regards the second ground urged by the petitioner, we find that even this aspect has been duly considered in the impugned judgment [J. Anbazhagan v. Union of India,, 2018 SCC OnLine Mad 1231 : (2018) 2018) 3 CTC 449] . In para 129 of the impugned judgment, reliance has been placed on Dinubhai Boghabhai Solanki v. State of Gujarat [Dinubhai Dinubhai Boghabhai Solanki v. State of Gujarat,, (2014) 4 SCC 626 : (2014) 2 SCC (Cri) 384] , wherein it has been held that in a writ petition seeking impartial investigation, the accused was not entitled to opportunity of hearing as a matter of course. Reliance has also NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 9 W.P.20914/2022 been placed on Narender G. Goel v. State of Maharashtra [Narender Narender G. Goel v. State of Maharashtra Maharashtra, (2009) 6 SCC 65 : (2009) 2 SCC (Cri) 933] , in particular, para 11 of the reported decision wherein the Court observed that it is well settled that the accused has no right to be heard at the stage of investigation. By entrusting the investigation to CBI which, as aforesaid, was imperative in the peculiar facts of the present case, the fact that the petitioner was not impleaded as a party in the writ petition or for that matter, was not heard, in our opinion, will be of no avail. That per se cannot be the basis to labelabel the impugned judgment as a nullity."
24. This Court in Divine Retreat Centre v. State of Kerala [Divine Retreat Centre v. State of Kerala, (2008) 3 SCC 542 : (2008) 2 SCC (Cri) Kerala, 9] , has enunciated that the High Court in exercise of its inherent jurisdiction jurisdiction cannot change the investigating officer in the midstream and appoint an investigating officer of its own choice to investigate into a crime on whatsoever basis. The Court made it amply clear that neither the accused nor the complainant or informant are entitled to choose their own investigating agency, to investigate the crime, in which they are interested. The Court then went on to clarify that the High Court in exercise of its power under Article 226 of the Constitution can always issue appropriate directions at the instance of the aggrieved person if the High Court is convinced that the power of NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 10 W.P.20914/2022 investigation has been exercised by the investigating officer mala fide.
25. Be that as it may, it will be useful to advert to the exposition in State of W.B. .B. v. Committee for Protection of Democratic Rights [State of W.B. v. Committee for Protection of Democratic Rights, Rights, (2010) 3 SCC 571 : (2010) 2 SCC (Cri) 401] . In para 70 of the said decision, the Constitution Bench observed thus : (SCC p. 602) "70. Beforeore parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the courts must bear in mind certain self-imposed imposed limitations on the exercise of these constitutional titutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. T This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 11 W.P.20914/2022 may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious casess and in the process lose its credibility and purpose with unsatisfactory investigations."
26. In the present case, except pointing out some circumstances to question the manner of arrest of the five named accused sans any legal evidence to link them with the crime under investigation, no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer. A vague and unsubstantiated assertion in that regard is not enough. Rather, averment in the petition as filed was to buttress the reliefs initially prayed for (mentioned in para 8 above)
-- regarding the manner in which arrest was made. Further, the plea of the petitioners of lack of evidence against the named accused (A (A-16 to A-20)
20) has been seriously seriously disputed by the investigating agency and have commended us to the material already gathered during the ongoing investigation which according to them indicates complicity of the said accused in the commission of crime. Upon perusal of the said material, we are of the considered opinion that it material, is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named accused, but concerning their link with the members of the banned organisation and its activities.
activities. This is not the stage where the efficacy of the material or NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 12 W.P.20914/2022 sufficiency thereof can be evaluated nor is it possible to enquire into whether the same is genuine or fabricated. We do not wish to dilate on this matter any further lest it would cause prejudice judice to the named accused and including the co-accused co accused who are not before the Court. Admittedly, the named accused have already resorted to legal remedies before the jurisdictional court and the same are pending. If so, they can avail of such remedies as as may be permissible in law before the jurisdictional courts at different stages during the investigation as well as the trial of the offence under investigation. During the investigation, when they would be produced before the court for obtaining remand by by the police or by way of application for grant of bail, and if they are so advised, they can also opt for remedy of discharge at the appropriate stage or quashing of criminal case if there is no legal evidence, whatsoever, to indicate their complicity in the subject crime.
27. In view of the above, it is clear that the consistent view of this Court is that the accused cannot ask for changing the investigating agency or to do investigation in a particular manner including for court-monitored court monitored investigation. The first two modified reliefs claimed in the writ petition, if they were to be made by the accused themselves, the same would end up in being rejected. In the present case, the original writ petition was filed by the persons claiming to be the next friends friends of the accused concerned (A (A-16 to A-20).
A 20). Amongst them, Sudha Bhardwaj (A (A-
19), Varvara Rao (A-16), (A 16), Arun Ferreira (A (A-18) and Vernon Gonsalves (A-17) (A 17) have filed signed statements praying that the reliefs claimed in the subject writ petition be treated as their their writ petition.
NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 13 W.P.20914/2022 That application deserves to be allowed as the accused themselves have chosen to approach this Court and also in the backdrop of the preliminary objection raised by the State that the writ petitioners were completely strangers to the offence fence under investigation and the writ petition at their instance was not maintainable. We would, therefore, assume that the writ petition is now pursued by the accused themselves and once they have become petitioners themselves, the question of next friend friend pursuing the remedy to espouse their cause cannot be countenanced. The next friend can continue to espouse the cause of the affected accused as long as the accused concerned is not in a position or incapacitated to take recourse to legal remedy and not otherwise."
o
15. The Supreme Court in the case of Dinubhai Boghabhai Solanki Vs. State of Gujarat and Others reported in (2014) 4 SCC 626 has held as under:
"50. In W.N. Chadha [Union of India v. W.N. Chadha, 1993 Supp (4) SCC 260 : 1993 SCC Chadha, (Cri) 1171] , the High Court had quashed and set aside the order passed by the Special Judge in charge of CBI matters issuing the order rogatory, on the application of a named accused in the FIR, Mr W.N. Chadha. The High Court held that the order issuing letter rogatory was passed in breach of principles of natural justice.
In appeal, this Court held as follows: (SCC pp. 290--91 & 293, paras 89, 92 & 98) "89.. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 14 W.P.20914/2022 not and a full enquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be ssaid that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but whether the occasion for its attraction exists at all.
* * *
92.. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusivelyly by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate.
ipate. There are various judicial pronouncements to this effect but we feel that it is not necessary NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 15 W.P.20914/2022 to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.
* * *
98.. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would ould frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self self- defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary." These observations make it abundantly clear that it would not be necessary to give an opportunity of hearing toto the proposed accused as a matter of course. The Court cautioned that if prior notice and an opportunity of hearing have to be given in every criminal case before taking any action against the accused person, it would frustrate the entire objective of an effective investigation. In the present case, the appellant was not even an accused at the time when the impugned order was passed by the High Court. Finger of suspicion had been pointed at the appellant by independent witnesses as well as by the grieved father f of the victim.
51. In Rajesh Gandhi case [CBI v. Rajesh Gandhi, (1996) 11 SCC 253 : 1997 SCC (Cri) Gandhi, NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 16 W.P.20914/2022 88] , this Court again reiterated the law as follows: (SCC pp. 256-57, 256 para 8) "8.. There is no merit in the pleas raised by the first respondent either. The decision to investigate or the decision on the agency which should investigate, does not attract principles of natural justice. The accused cannot have a say in who should investigateate the offences he is charged with. We also fail to see any provision of law for recording reasons for such a decision. ... There is no provision in law under which, while granting consent or extending the powers and jurisdiction of the Delhi Special Police Establishment to the specified State and to any specified case any reasons are required to be recorded on the face of the notification. The learned Single Judge of the Patna High Court was clearly in error in holding so. If investigation by the local police ce is not satisfactory, a further investigation is not precluded. In the present case the material on record shows that the investigation by the local police was not satisfactory. In fact the local police had filed a final report before the Chief Judicial Magistrate, Dhanbad. The report, however, was pending and had not been accepted when the Central Government with the consent of the State Government issued the impugned notification. As a result, CBI has been directed to further investigate the offences registered gistered under the said FIR with the consent of the State Government and in accordance with law. Under Section 173(8) CrPC, 1973 also, there is an analogous provision for further NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 17 W.P.20914/2022 investigation in respect of an offence after a report under sub-section (2) has as been forwarded to the Magistrate." The aforesaid observations would clearly support the course adopted by the High Court in this matter. We have earlier noticed that the High Court had initially directed that the investigation be carried under the supervision supervision of the Special Commissioner of Police, Crime Branch, of the rank of the Additional Director General of Police. It was only when the High Court was of the opinion that even further investigation was not impartial, it was transferred to CBI.
52. Again in Sri Bhagwan Samardha [Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P., (1999) 5 SCC 740 : 1999 SCC (Cri) 1047] A.P., , this Court observed as follows: (SCC pp. 742 742- 43, paras 10-11) 10 "10.. Power of the police to conduct further her investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the court took cognizance of any offence on the strength of the police report first submitted, it is open to the police to conductt further investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 : 1979 SCC (Cri) 479] . The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation.
11.. In such a situation the power of the court to direct the police to conduct NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 18 W.P.20914/2022 further investigation cannot have any inhibition. There is nothing in Section 173(8) to suggest that the courtt is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being ng heard. As the law does not require it, we would not burden the Magistrate with such an obligation."
These observations also make it clear that there was no obligation for the High Court to either hear or to make the appellant a party to the proceedings before directing that the investigation be conducted by CBI.
53. We had earlier noticed that the High Court had come to the prima facie conclusion that the investigation conducted by the police was with the motive to give a clean chit to the appellant, in spite of the statements made by the independent witnesses as well as the allegations made by the father of the deceased. The legal position has been reiterated by this Court in Narender G. Goel [Narender G. Goel v. State of Maharashtra, Maharashtra (2009) 6 SCC 65 : (2009) 2009) 2 SCC (Cri) 933] : (SCC pp. 68-69, 68 69, paras 11 11-13) "11.. It is well settled that the accused has no right to be heard at the stage of investigation. The prosecution will however have to prove its case at the trial when the accused will have full opportunityity to rebut/question the validity and authenticity of the prosecution case. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. [Sri Sri Bhagwan Samardha Sreepada Vallabha Venkata NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 19 W.P.20914/2022 Vishwanandha Maharaj v. State of A.P. A.P., (1999)9) 5 SCC 740 : 1999 SCC (Cri) 1047] this Court observed: (SCC p. 743, para
11) '11.. ... There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard.'
12.. The accused can certainly avail himself of an opportunity to cross cross- examine and/or otherwise controvert rovert the authenticity, admissibility or legal significance of material evidence gathered in the course of further investigations. Further in light of the views expressed by the investigating officer in his affidavit before the High Court, it is apparent that the investigating authorities would inevitably have conducted further investigation with the aid of CFS under Section 173(8) of the Code.
13.. We are of the view that what is the evidentiary value can be tested during the trial. At this juncture it would ld not be proper to interfere in the matter."
16. The Supreme Court in the case of Narender G. Goel Vs. State of Maharashtra and Another reported in (2009) 6 SCC 65 has held as under:
NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 20 W.P.20914/2022 "11. It is well settled that the accused has no right to be heard at the stage of investigation.
The prosecution will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case. In Sri Bhagwan Samardha Sreepada Vallabha Venk Venkata Vishwanandha Maharaj v. State of A.P. [(1999) 5 SCC 740 : 1999 SCC (Cri) 1047] this Court observed : (SCC p. 743, para 11) "11.. ... There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made.
ade. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard."
12. The accused can certainly avail himself of an opportunity op to cross-examine examine and/or otherwise controvert the authenticity, admissibility or legal significance of material evidence gathered in the course of further investigations. Further in light of the views expressed by the investigating officer in his affidavit before the High Court, it is apparent that the investigating authorities would inevitably have conducted further investigation with the aid of CFS under Section 173(8) of the Code."
17. Under these circumstances, this Court is of considered opin opinion that the FIR which has been lodged against the petitioner petitioners cannot be quashed.
NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 21 W.P.20914/2022
18. So far as the suspension of licence to run the Fair Price Shop, Lidhorahat, Shop Code No. 1001194 is concerned,, Clause 116(1) of PDS Control Order, 2015 201 empowers the authority to place the shop under suspension. The only requirement is that in case if the suspension order is issued, then the authority must issue a show cause notice within a period of 10 days from thereafter and then to decide the question of suspension within a period of three months from thereafter.
19. In the present case since the effect and operation of order dated 26.08.2022 .2022 passed by SDO(Revenue), District Sagar in case No. 148B/121/2022-23 23 was stayed, therefore, it is clear that the respo respondents were not in a position to proceed further.
20. Since counsel for petitioners petitioner could not point out any illegality in the suspension order dated 26.08.2022 passed by SDO (Revenue), Sagar in Case No. 148B/121/2022-23, 148B/121/2022 23, therefore, no case is made out warranting ranting interference. The licence to run Fair Price Shop, Lidhorahat Shop No. 1001194 shall remain suspended.
21. The petitioners petitioner shall appear before SDO (Revenue), Sagar on 13.09.2024 and shall submit a certified copy of this order to the SDO (Revenue), Sagar.
22. The SDO (Revenue), Sagar shall positively issue a show cause notice under Clause 16(3) of PDS Control Order, 2015 on or before 23.09.2024 and shall decide the matter positively within a period of three months without getting influenced or prejudiced by dismissal of this petition.
NEUTRAL CITATION NO. 2024:MPHC--JBP:44533 22 W.P.20914/2022
23. So far as the status of FIR is concerned, the counsel for petitioner petitioners was not in a position to narrate as to whether the charge charge-sheet has been filed or not.
24. Accordingly, the SHO, Police Station Baheriya,, District Sagar is directed that in case if the investigation is not completed, then it shall be completed as required under Section 173(1) of Cr.P.C. without any unnecessary delay and if final report has already been filed, then no further action would bee required on the part of SHO, Police Station Baheriya,, District Sagar.
25. With aforesaid observation, the petition is dismissed dismissed.
26. Registry is directed to send sen a copy of this order to Collector, Sagar as well as to SDO (Revenue), Sagar for necessary information and compliance.
(G.S. AHLUWALIA) JUDGE AL Digitally signed by ASHISH KUMAR LILHARE Date: 2024.09.06 11:08:28 +05'30'