CRIMINAL MISCELLANEOUS No.17566 OF 1999 --------- In the matter of an application under section 482 of the Code of Criminal Procedure. --------- AJAY PRATAP SINGH son of Late Sankat Haran Singh, resident of S.K.Puri, P.S.-S.K.Puri, District Patna ………..Petitioner Versus THE STATE OF BIHAR ----------- Opp.Party ----- For the petitioner : M/s Rana Pratap Singh,Sr.Advocate, Ashwani Kumar Singh, Dhananjay Kumar and Aruni Singh For the State : Mr.A.M.P.Mehta, Additional Public Prosecutor ------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ------ Rakesh Kumar, J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 09.03.1999 passed by Sri Arvind Kumar Srivastava, Judicial Magistrate, Ist Class, Patna in G.R.No. 4076 of 1984, Tr.No. 49 of 1988 arising out of Kotwali P.S.Case No. 1108 of 1984 whereby the petitioner’s petition for discharge was rejected. 2. Short fact of the case is that on the basis of written application submitted by one Jamuna Singh, the District Agriculture Officer, Patna to the Officer Incharge of Pataliputra Police Station, a first information report vide Kotwali (S.K.Puri) P.S. Case No.1108 of 1984 was registered for the offences under sections 409, 420, 468 and 471 of the Indian Penal Code against four accused persons. It was disclosed by the informant that on the order of Agriculture Production Commissioner, Joint Director of Plant Protection, Bihar, Patna, Shri C.S.Rai, the informant did 2 physical verification of Insecticides of Plant Protection Centre, Mainpura. During physical verification, besides the informant Shri C.S.Rai, D.P.Choudhary, Assistant Director, Plant Protection, Patna, Shri Ram Charitra Prasad, Assistant Director, Agriculture, Planning, Patna Division, Patna and Shri Sakaldeo Thakur, Junior Plant Protection Officer, Patna were also present. The verification report was sent to the Government on 28.7.1984. It was further alleged that during physical verification of the stock, value of pesticides were found short for an amount of Rs.11,39,435.86. The said amount was embezzled by the then Plant Protection Officer, Mainpura, namely, Muneshwar Prasad. It was further disclosed that accused- Muneshwar Prasad had also sold pesticides during the year 1983-84 and 1984-85 on 50% subsidy to the tune of Rs.18,84,173.47. This amount had been defalcated by him. This was sold because Mainpura Centre had got no sanction to sell insecticides on 50% subsidy or on special discount. The list of pesticides sold on 50% subsidy or on special discount without permission was enclosure -2 to the first information report. The allegation was that accused- Muneshwar Prasad sold the pesticides on full payment and falsely showed to be sold on 50% subsidy and on special discount and he grabbed the whole money. It was further disclosed that accused Muneshwar Prasad, had also received pesticides of Rs. 3,90,364.67 during 1983-84 and sold the same while he was posted at Mokamah Tal Plant Protection Centre. Out of this amount he deposited only Rs. 14,480.00 to the BISCOMAUN Depot, Mokamah. The rest of the money Rs. 3,75,904.67 was alleged to have been grabbed by 3 accused Muneshwar Prasad. It was said that he had been helped by Depot Manager in supply of pesticides without the order of the competent authority. The FIR also disclosed that the cash book was found written till 25.3.1984 but the total of the same had not been mentioned. A sum of Rs. 5,36,997.29 had been shown as balance in entries of 22.3.1984 only a sum of Rs. 2,01,000/- had been deposited with BISCOMAUN Depot, Maharajganj on 23.3.84. It was alleged that accused Muneshwar Prasad had grabbed Rs. 3,35,397.29. As per first information report accused Muneshwar Prasad, on the basis of letter no. 2493 dated 28.2.1984 issued to Depot Manager, Maharajganj and Danapur by Special Officer, Ajay Pratap Singh, sold damaged and sub standard Dithane M-45 on 25% subsidy to farmers but sale of damaged Dithane M-45 was contrary to the Insecticides Act. The BISCOMAUN did not inform the licencing authority and Joint Director, Plant Protection and hence violating the provisions of the Act, farmers were supplied with sub standards medicine. It was further alleged that records of accused Muneshwar Prasad had not been seized. It was also apparent from letter no. 869 dated 1.8.1984 issued from the office of Director, Agriculture and letter no. 78(c) dated 28.7.1984 and letter no. 102 (c) dated 13.8.1984 issued from the office of Joint Director, Agriculture Office, Plant Protection that the records were being updated. As per the first information report, accused Muneshwar Prasad, the then Plant Protection Supervisor, had misappropriated amount worth Rs. 31,99,918.80 by playing foul in pesticides deal besides he had not furnished account of cash book balance of Rs. 3,55,977/- and had 4 violated the provisions of Insecticides Act by selling damaged insecticides. 3. After registering first information report, the police conducted investigation and finally on 30.11.1989 submitted chargesheet under Sections 409, 468, 471 and 120B of the Indian Penal Code and Section 18 of the Insecticides Act, 1968. After submission of the chargesheet, cognizance was taken and, while the case reached to the stage of charge, the petitioner filed a petition for discharge. However, learned Judicial Magistrate, Ist Class, Patna by its order dated 9.3.1999 rejected discharge petition. 4. Aggrieved with the order of rejection of discharge, the petitioner approached this Court by filing the present petition which was admitted on 10.9.1999. While admitting the case, it was directed that during the pendency of this application, further proceeding in the court below in G.R.No. 4076 of 1984/Tr.No. 1191 of 1988 shall remain stayed so far as the petitioner is concerned. 5. Mr.Rana Pratap Singh, learned Sr.Advocate for the petitioner submits that it is true that the petitioner was named as accused along with other three persons in the first information report but no cogent material was collected by the Police during investigation and only on the strength of a letter issued under the signature of the petitioner he has been made accused in the present case. It was submitted that even the said letter was issued by the petitioner after approval of the Managing Director of the BISCOMAUN. Learned counsel for the petitioner has further argued 5 that the prosecution of the petitioner under the provision of Section 18 of the Insecticides Act (hereinafter to be referred to as `the Act’) is contrary to the provision contained in Section 31 of the Act. It was submitted by learned counsel for the petitioner that there is specific bar under Section 31 of the Act regarding prosecution for an offence under the Act without written consent of the State Government or a person authorized in his behalf by the State Government. It was submitted that the prosecution was not initiated with prior consent of the State Government or a person authorized by the State Government. It was further submitted that in the whole case diary there is no material to show that there was report that insecticides were misbranded and in absence of any such report, the petitioner cannot be prosecuted for an offence under Section 18 of the Act. In support of his submission that non-compliance of provision under Section 31 of the Act is sufficient to establish that prosecution is unauthorized and illegal, learned counsel for the petitioner has relied on a decision reported in 1987 Cr.L.J. 138 (Madan Dangi and Ors. Vs. The State of Punjab and Another) and 1999 (8) SCC 190 (State of Haryana .Vrs. Unique Framaid (P) Ltd. and others). It was submitted by Mr.Singh, learned senior counsel for the petitioner that in view of non-availability of either a report or an authorization strictly under Section 31 of the Act, the learned Magistrate was required to discharge the petitioner. He has also submitted that at the stage of hearing of discharge petition, the learned Magistrate was required to examine all materials and was also required to pass a reasoned order in case of rejection of 6 discharge petition. On this point, he has referred to a decision reported in 2005 SCC (1) page 568 ( State of Orissa .Vs. Debendra Nath Padhi). On the ground of non-availability of any material connecting the petitioner in the crime as well as in view of violation of Insecticides Act, it has been prayed to quash the impugned order. 6. Mr.A.M.P.Mehta, learned Additional Public Prosecutor appearing for the State, while opposing the prayer for quashing the impugned order, has vehemently argued that the petitioner is a named accused in the first information report and while first information report was registered, it was registered for the offences under Sections 409, 420, 478 and 471 of the Indian Penal Code and sections 412 and 120 of the Indian Penal Code and section 18 of the Insecticides Act was added subsequently and there is specific allegation in the first information report that the main accused was Muneshwar Prasad who was posted as Plant Protection Supervisor, Mainpura Centre and the petitioner being Special Officer of BISCOMAUN issued Letter No. 2493 dated 28.2.1984 to the Depot Manager, Maharajganj and Danapur for selling Diethin M-45 on 25 per cent subsidy to farmers. However, the selling of said damaged Diethin M-45 was contrary to Insecticides Act. The BISCOMAUN has never informed the licensing authority and Joint Director, Plant Protection. It was submitted that the purported letter had given unauthorized subsidy of 25 per cent on the basis of which the accused Muneshwar Prasad had sold the same. It was further submitted that it was a case of connivance of all the accused persons and as such allegation or material cannot be 7 looked into in isolation. So far as violation of provision of Insecticides Act is concerned, it was argued by Mr.Mehta, leaned Additional Public Prosecutor that cognizance was basically taken under the provisions of Indian Penal Code, of course, for violation of Insecticides Act also. It was argued that only on one ground the entire prosecution cannot be set aside, keeping in view the allegation of conspiracy. Regarding merit of the case, it was submitted that this court may not conduct roving inquiry and accordingly it has been prayed to reject the present petition. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on the record. The impugned order was passed at the stage of discharge. At the stage of passing an order on charge, as per settled law, only requirement is to see as to whether prima facie case is made out or not. The Hon’ble Supreme Court in a case reported in 1996 (3) Cr.L.J.2448 (State of Maharashtra .Vs. Some Nath Thapa) in paragraphs 30 and 32 has examined in detail regarding prima facie case for charge. It would be proper to quote the same which are as follows: Paragraph 30: In Antulay’s case (A.I.R. 1986 SC 2045), Bagwati, C.J., opined, after noting the difference in the language of the three pairs of section, that despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of “ prima facie” case has to be applied. According to Sri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless 8 rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence.” Paragraph 32: The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.” 8. Similarly the case law which has been relied upon by learned counsel for the petitioner in Debendra Nath Padhi’s case (supra) also makes it clear that roving inquiry and fishing enquiry is impermissible. 9. So far as the plea of violation of Section 31 of the Insecticides Act is concerned, the court is in agreement with the submission advanced by the learned Additional Public Prosecutor that in the present case the basic allegation is that by way of 9 hatching conspiracy with each other, the accused persons had misappropriated public money to the tune of Rs.34/- lakh and odd and the first information report was lodged for violation of the provision of the Indian Penal Code. Moreover, primarily accusation against the accused persons in the case is of misappropriation of public money and as such on the ground of technical violation of Insecticides Act, the petitioner does not deserve to be discharged from the case. So far as the case reported in 1999 (8) SCC 190 (supra) is concerned, in that case the prosecution was initiated for only violation of provisions of Insecticides Act and in that case valuable right of accused for getting the sample tested from Central Insecticides Laboratory was taken away and as such the prosecution was quashed. The petitioner cannot get any help from this judgment. So far as Madan Dangi’s case (supra) is concerned, the court is of the view that the fact of that case was not similar to the present case. In the present case, basic allegation is for misappropriation of more than Rs.34/- lakh of public money in connivance with the accused persons who were Officers/employee of the BISCOMAUN as well as Government of Bihar. Accordingly, the court is of the opinion that the petitioner has not made out an exceptional case warranting exercise of inherent jurisdiction of this Court. Time without number, it has been held that power under Section 482 of the Code of Criminal Procedure is to be exercised in exceptional and rarest of the rare cases. 10. I do not find any merit in the present petition and the petition stands rejected. 10 11. In view of rejection of this petition, the interim order of stay stands automatically vacated. 12. Let a copy of this order be sent to the court below forthwith. Patna High Court The 31st January, 2011 Md.S.(NAFR). ( Rakesh Kumar, J.)