IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY NINETH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 7434 of 2005 Between: Ragam Hanmandlu, S/o. Venkatarajaiah, of M/s. Sri Vijayalakshmi Traders, (Sri Siddeshwara Industries), Regode Vilage and Mandal, Medak District. ..... PETITIONER AND 1 The Inspector of Police, VCCSD, Medak District, at Sangareddy. 2 Joint Collector, Medak District, at Sangareddy. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue a writ, order or direction more in the nature of Writ of Mandamus declaring the Crime No. 33/VC MDK/99 dated 24-3-1999 as null and void and pass such other order or orders as this Hon'ble Court may deem ﬁt and proper in the circumstances of the case Counsel for the Petitioner: MR.V.H.V.R.R.SWAMY Counsel for the Respondents: GP FOR CIVIL SUPPLIES The Court made the following Order: THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.7434 of 2005 ORDER: The petitioner ﬁled the writ petition seeking a writ of Mandamus declaring Crime No.33/VC MDK/99 dated 24.03.1999 as null and void. Though the writ petition is for Mandamus declaring ﬁrst information report (F.I.R.) with regard to cognizable oﬀence as void and null, in eﬀect virtually the writ petition under Article 226 of the Constitution of India is for quashing said F.I.R. The learned counsel for the petitioner indeed does not dispute that the writ petition is ﬁled for quashing F.I.R. The petitioner is a partner of M/s Sri Vijayalakshmi Traders, which is a licensee under the Andhra Pradesh Scheduled Commodities Dealers (Licensing and Distribution) Order, 1982 (hereafter called, Dealership Order). The petitioner and his partner are also having M/s Sri Siddeshwara Industries, which is a trading rice mill. At the relevant time it obtained necessary permissions and licences under the Rice Milling Industries (Regulation) Act, 1958 (hereafter called, Rice Milling Act). On 24.03.1999 ﬁrst respondent conducted a check on M/s Vijayalakshmi Traders as well as M/s Siddeshwara Industries (rice mill). First respondent found irregularities. He veriﬁed licence under Dealership Order, A.P.G.S.T. licence, C.S.T. licence, Form B Register, Sales Bill Books, Way Bill Register, Way Bill Books, Form C returns, electrical bills and other documents, and also physically veriﬁed the stocks. It was found that there were variations in the stocks. Accordingly ﬁrst respondent after conducting Panchanama registered F.I.R., being F.I.R.No.33/VC MDK/99 dated 24.03.1999 alleging the following - (i) that the petitioner/dealer contravened conditions of licence under Dealership Order and thereby violated Clauses 8 and 9 of Dealership Order, (ii) that the dealer failed to adhere to the instructions issued by the Government and thereby violated Clauses 12 and 13 of Dealership Order, (iii) that the dealer improperly maintained records and daily accounts and thereby violated Condition 3 of dealership conditions, (iv) that the dealer did not issue Form C returns to the licensing authority and thereby violated Condition No.4 of dealership conditions, (v) that the dealer resorted to speculative trade in contravention of Condition No. 7(i) of dealership conditions, (vi) that the dealer did not issue sales and purchase bills which is in violation of Condition No.10 of dealership conditions, (vii) that the dealer moved stocks of rice from the mill premises without release certiﬁcate and thereby contravened Clause 7(a) of the Andhra Pradesh Rice Procurement (Levy) Order, 1984, and (viii) that the dealer was found carrying on custom milling operations in his rice mill without speciﬁc prior permission of the Collector and thereby contravened Clause 3 of the Andhra Pradesh Trading Rice Mills (Restriction on Custom Milling) Order, 1978. On all these allegations, F.I.R. was registered under Section 7 of the Essential Commodities Act, 1955, (EC Act, for brevity). This F.I.R. is challenged as abuse of process of law on the ground that it does not disclose any oﬀence and that when once Rice Milling Act was repealed with eﬀect from 28.05.1997, for the alleged violations committed by the rice mill, the trading concern of the petitioner cannot be prosecuted. It is also necessary to notice that based on Panchanama conducted by ﬁrst respondent, the Joint Collector, Medak, second respondent herein, initiated conﬁscation proceedings under Section 6-A of EC Act after issuing show cause notice under Section 6-B of EC Act, and considering the explanation submitted thereto, ordered conﬁscation of 80% of the seized stocks. Aggrieved by the same, the petitioner ﬁled an appeal, being Crl.A.No.126 of 2000 on the ﬁle of the Court of the Principal Sessions Judge, Medak. The same was partly allowed on 11.11.2003 reducing conﬁscation of seized stocks to 40%. Yet again the petitioner approached this Court in Criminal Revision Case No.1771 of 2003. By order dated 09.07.2004, this Court partly allowed the revision reducing conﬁscation to 25% of the stocks seized. It is necessary to extract the following observations made by this Court in said criminal case. It is no more in dispute that the petitioners did not submit C-returns. Under condition No.4 of the license, the licensee is required to submit C- returns. It is the explanation of the petitioners that the practice of submitting form C return is dispensed with the licensing authority. There is no proof to show that the licensing authority has dispensed with the practice of ﬁling Form C returns by the licensee. Therefore, the explanation of the petitioners for their failure to submit Form C returns does not stand to reason. Coming to the variations between the book balance and the physical stock, it is the contention of the petitioners that the inspecting authority has mixed up the stocks of trading company and the mill and therefore it cannot be said that the petitioners contravened the conditions of the license. I do not see any merit in his contention since it is for the petitioners to maintain separate registers for their milling activity and trading activity. Having failed to maintain separate registers, they cannot be permitted to contend that the inspecting authority did not verify the stock register of the trading company. The learned counsel for the petitioner vehemently contends that the petitioner’s trading business was not inspected and the entire case was based on Panchanama conducted after inspecting the rice mill and therefore, the criminal case is abuse of process of Court. Secondly he submits that when once Rice Milling Act was repealed, it is not competent for the respondents to make an allegation with regard to violation of Rice Milling Act. The variations pointed out are negligible and therefore, in the absence of allegations in Panchanama, criminal case cannot be launched. Per contra, the learned Assistant Government Pleader for Civil Supplies refutes these contentions. He submits that when once in respect of related proceedings under Section 6-A of EC Act, the Court of Sessions and the High Court found that the petitioner violated Control Orders, prosecution can be launched under Section 7 of EC Act notwithstanding the confiscation order. The question whether a First Information Report (F.I.R.) can be quashed in exercise of powers under Article 226 of the Constitution of India is no more res integra. It is the duty of the executive to investigate a crime through Police Department and bring the oﬀenders to book. The power of the State to carry on the task to prosecute oﬀenders can neither be interdicted nor the Court can assume the role of investigator. Repeatedly, the apex Court has held that at the stage of investigation, this Court cannot interfere in criminal cases. One should look to the allegations in the F.I.R. and if prima facie an oﬀence is made out, all matters should await the criminal trial. This Court cannot shift the material and appreciate the evidence at the stage of investigation. A person has suﬃcient safeguards in Cr.P.C. to move the High Court if there is abuse of process of law either at the stage of investigation during the trial or after the trial. A person has also an efficacious alternative remedy under Section 482 Cr.P.C. In view of this, the extraordinary remedy of judicial review under Article 226 is not proper remedy. The party must approach the Court under Section 482 Cr.P.C., which is an eﬀective and eﬃcacious statutory alternative remedy. The decisions of the apex Court on this are galore. I n State of Haryana v Bhajan Lal[1], the apex Court referred to the entire case law and laid down the principles to be followed in exercise of powers under Article 226 of the Constitution of India or Section 482 Cr.P.C. for interfering with investigation of oﬀence. It was also reiterated that, judiciary should not interfere with police matters which are within their province; but if no cognizable oﬀence is disclosed or no oﬀence of any kind is disclosed, the police would not have any authority for undertaking investigation. Referring to State of West Bengal v Swapan Kumar Guha[2], the apex Court held that, “if the F.I.R. does not disclose the commission of a cognizable oﬀence, the Court would be justified in quashing the investigation on the basis of the information as laid or received.” I n State of Tamil Nadu v Thirukkural Perumal[3], the apex Court held that though the High Court has extraordinary or inherent power to reach out injustice, the power of quashing a F.I.R. and criminal proceedings should be exercised sparingly by the Court. It is apt to quote the following. ………..…The power of quashing an FIR and criminal proceeding should be exercised sparingly by the courts. Indeed, the High court has the extraordinary or inherent power to reach out injustice and quash the first information report and criminal proceedings, keeping in view the guidelines laid down by this court in various judgments (reference in this connection may be made with advantage to State of Haryana v Bhajan Lal (supra) but the same has to be done with circumspection. The normal process of the criminal trial cannot be cut short in a rather casual manner. The court, is not justiﬁed in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition under Section 482 Criminal Procedure Code seeking the quashing of the FIR and the criminal proceedings. The learned Single Judge apparently fell into an error in evaluating the genuineness and reliability of the allegations made in the FIR on the basis of the evidence collected during the investigation. The order of the learned Single Judge cannot, therefore, be sustained. This appeal succeeds and is allowed. The impugned order of the High court is hereby set aside. I n State of H.P. v Pirthi Chand[4], the apex Court considered the extent and scope of power of High Court under Article 226 of the Constitution of India as well as Section 482 Cr.P.C. to quash F.I.R./charge sheet/complaint. While holding that at the stage of investigation it is not the function of the Court to weigh the merits of the prosecution case and that if the record prima facie supports the commission of an oﬀence, the power to quash F.I.R. cannot be exercised, it was observed: It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR / charge- sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it ﬁrst has to get into the grip of the matter whether the allegations constitute the oﬀence. It must be remembered that FIR is only an initiation move to the machinery and to investigate into cognizable oﬀence. After the Investigation is conducted and the charge-sheet is laid the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its eﬀect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the oﬀence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable oﬀence is made out no further act could be done except to quash the charge-sheet. But only in exceptional cases, i.e. in rarest of rare cases of mala ﬁde initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable oﬀence- the Court may embark upon the consideration there of and exercise the power. (emphasis supplied) Yet again, in paragraph 13, it was laid down as under. When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482, the prima facie consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the Court. When investigating oﬃcer spends considerable time to collect the evidence and places the charge-sheet before the court, further action should not be short-circuited by resorting to exercise inherent power to quash the charge sheet. The social stability and order requires to be regulated by proceeding against the oﬀender as it is an oﬀence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power……….. (emphasis supplied) I n State of U.P. v O.P. Sharma [5], Rashmi Kumar v Mahesh Kumar Bhada[6], Rajesh Bajaj v State (NCT of Delhi)[7] and Satvinder Kaur v State (Govt. of NCT of Delhi)[8], while reiterating that for the purpose of exercising its power under Section 482 Cr.P.C. to quash a F.I.R. or a complaint, the High Court has to proceed entirely on the basis of the allegations made in the complaint, that the Court has no jurisdiction nor justiﬁcation to examine the correctness or otherwise of the allegations and that the power to quash either under Section 482 Cr.P.C. or under Article 226 of the Constitution of India must be used very sparingly and ordinarily the police investigation cannot be thwarted at the threshold. The contravention of criminal law is an oﬀence against the whole society and the Court should be cautious not to interfere at the stage of investigation of crime. I n Mahavir Prashad Gupta v State of National Capital Territory of Delhi[9], the apex Court held that when there are suﬃcient provisions in the Cr.P.C., there is no necessity to invoke jurisdiction under Article 226 of the Constitution of India. The relevant observations are as under. To be remembered that in the Criminal Procedure Code there are suﬃcient provisions which enable a party to move the High Court if there is abuse of the process of law. The Petitioners could have utilised those provisions. Also anticipatory bail had been refused to the Petitioners. The Order refusing grant of anticipatory bail was accepted by the Petitioners as they ﬁled no Appeal or Revision. There was thus no justiﬁcation for invoking Article 226 of the Constitution of India……………… The law on the subject is very clear. In the case of State of Bihar v. Murad Ali Khan {(1988) 4 SCC 655 : 1989 SCC (Cri) 27} it has been held that jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised sparingly and with circumspection. It has been held that at an initial stage a court should not embark upon an inquiry as to whether the allegations in the complaint are likely to be established by evidence or not. Again in the case of State of Haryana v. Bhajan Lal {(1992) Supp (1) SCC 335 : 1992 SCC (Cri) 426} this Court has held that the power of quashing criminal proceedings must be exercised very sparingly and with circumspection and that too in the rarest of rare cases. It has been held that the court would not be justiﬁed in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. It has been held that the extraordinary or inherent powers did not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. (emphasis supplied) I n Zandu Pharmaceutical Works Ltd., v Mohd.Sharaful Haque[10], the apex Court again considered the scope of power of this Court under Section 482 of Cr.P.C., to quash criminal prosecution. After referring to R.P.Kapur v State of Punjab (supra), Janata Dal v H.S.Chowdhary[11] and State of Karnataka v M.Devendrappa[12], the apex Court laid down as under. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power, which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give eﬀect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inﬂexible rule, which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law, which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine, which ﬁnds expression in the section, which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle “quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest” (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justiﬁed by the tests speciﬁcally laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action, which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justiﬁed to quash any proceeding if it ﬁnds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no oﬀence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. On a perusal of Panchanama, this Court is convinced that F.I.R. does contain serious allegations with regard to violations and contraventions of Control Orders as well as Conditions of licence issued to the petitioner. When prima facie cognizable case is made out, while dealing with a petition for quashing under Article 226 of the Constitution of India, it is not proper for this Court to express opinion on merits of the case nor it is proper to consider whether the criminal case is made out under Section 7 of EC Act. It is well settled that while dealing with the proceedings to quash, the Court cannot appreciate or shift the evidence. In the result, for the above reasons, the writ petition is devoid of merits and the same is accordingly dismissed with costs. _____________ (V.V.S.RAO, J) 29th October, 2008 Note: Issue CC in one week. (B/o) GHN To 1 The Inspector of Police, VCCSD, Medak District, at Sangareddy. 2 Joint Collector, Medak District, at Sangareddy. 3 2CCs to GP for Civil Supplies 4 2CD copies Form-NIC-OGS/WP{RLD} [1] AIR 1982 SC 604 [2] AIR 1982 SC 949 [3] (1995) 2 SCC 449 [4] (1996) 2 SCC 37 = 1996 SCC (Crl.) 210 [5] AIR 1996 SC 2983 =(1996) 7 SCC 705 = 1996 SCC (Crl.) 497 [6] (1997) 2 SCC 397 [7] AIR 1999 SC 1216 [8] (1999) 8 SCC 728 [9] (2000) 8 SCC 115 [10] 2004 AIR SCW 6185 = (2005) 1 SCC 122 [11] (1992) 4 SCC 305 [12] (2002) 3 SCC 89