Criminal Miscellaneous No.31902 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ---- BIPIN BIHARI SAH SON OF SHYAM NARAYAN SAH, RESIDENT OF VILLAGE GHUSUKPUR, P.S. TARIYANI, DISTRICT SHEOHAR. ... ... PETITIONER. Versus STATE OF BIHAR ... ... OPPOSITE PARTY. ---- For the Petitioner : M/S Vindhya Keshari Kumar,Sr.Adv. Neeraj Kumar, Adv. Radhe Shyam Kumar, Adv. For the State : Mr. Murlidhar, A.P.P. ---- 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 the order dated 30.11.1999 passed by Special Judge (E.C.Act), Sitamarhi in Tariyani P.S. Case No.45 fof 1999/G.R. No.150 of 1999. By the said order, the learned Special Judge has taken cognizance of offence under Section 7 of the Essential Commodities Act. 2. Short fact of the case is that on 18.5.1999, the Assistant Supply Officer, Sheohar along with Block Development Officer went to the shop of the petitioner, who was P.D.S. dealer. However, the shop in question was found closed. It was found at the time of inspection that kerosene oil container of the petitioner’s shop was lying - 2 - near the shop of one Sri Alakh Sah and also Sign Board of a shop was hanging over the wall of the house of one Bhola Sah. It was disclosed in the report of Assistant Supply Officer that the Sign Board was found painted. It was further disclosed in the said report that 20 members of Harijan community, who were not having Red Card had complained that they were never supplied/provided food grains by the petitioner. It was indicated in the report that since the shop in question was found closed and no one was there, no register of the shop in question could be verified. The reports of Assistant Supply Inspector was addressed to Block Development Officer,Sheohar and thereafter, the Block Development Officer with his written report enclosed the report of Assistant Supply Officer and requested the Officer-in-charge of Tariyani Police Station to register an F.I.R. Accordingly, an F.I.R. vide Tariyani P.S. Case No.45 of 1999 was registered on 15.5.1999. After investigation, police submitted charge sheet and thereafter, by the impugned order i.e. order dated 30.11.1999, the learned Special Judge,Sitamarhi took cognizance of the offence under Section 7 of the Essential Commodities Act. 3. Shri Vindhya Keshari Kumar, learned Senior Counsel appearing on behalf of the - 3 - petitioner, while challenging the order of cognizance, submits that there were no material available on record even to suggest commission of any offence by the petitioner and police, without collecting any evidence, submitted charge sheet and in similar manner, the learned Magistrate, without application of mind, has passed the impugned order. Shri Kumar, while relying on a case law reported in 1989 BBCJ(1)678 (Avtar Singh Vs. State of Bihar & others), submits that in absence of inspection of the record of the shop due to the reason of its closure, the petitioner was not liable to be held responsible for violation of provisions contained in Clause-3 of the Bihar Essential Articles (Display of Prices and Stocks) Order, 1977 and in absence of allegation of violation of the said provision, the petitioner is not liable to be prosecuted for the offence under Section 7 of the Essential Commodities Act. He has emphatically argued that in absence of examination of either stock or stock register, it cannot be said that any offence was committed by the petitioner. So far as allegation in respect of non-distribution of food grains to 20 members of Scheduled Caste and Scheduled Tribes is concerned, he submits that in the report of Assistant Supply Officer, which is the part of the - 4 - F.I.R., it is itself mentioned that the said 20 persons were not granted Red Card. Meaning thereby, they were not Red Card holder. It was argued that since those persons were not Red Card holder, they were not entitled to get food grains from the shop of the petitioner and as such the allegation levelled in the complaint petition to this extent is not sustainable in the eye of law and as such it cannot be considered as an offence. On the aforesaid grounds, Shri Kumar has submitted that order of cognizance is liable to be set aside. 4. Smt. Indu Bala Pandey, learned Additional Public Prosecutor has appeared on behalf of the State, who opposed the prayer of the petitioner. It was argued that whatever defence has been taken by the petitioner it can be taken at the appropriate stage and this is not a forum to raise all these points and, accordingly, she has prayed for rejection of the present petition. 5. Besides hearing, learned counsel for the parties, I have also examined the F.I.R. and the impugned order of cognizance. On perusal of the F.I.R., I am of the opinion that the informant has not disclosed specific case of commission of offence relating to violation of provisions contained in the Display Order or any notification - 5 - and as such in absence of such allegation, the petitioner cannot be prosecuted for being punished under Section 7 of the Essential Commodities Act. In the F.I.R. itself, the informant has disclosed that they had visited the shop of the petitioner to conduct an inspection. It was further admitted that shop in question was closed and due to that reason, no verification or inspection could be conducted either in the shop premises or the stock register. In absence of examination of stock register or verification of the stock, it cannot be said that the petitioner had violated any provisions warranting his prosecution. Similarly, second part of the allegation, which has been mentioned in the F.I.R. regarding none supply of food grains to particular person, it has been admitted in the F.I.R. that those 20 persons were not Red Card holder and as such none supply of food grains to those persons cannot attract penal provision against the petitioner. Moreover, only on an oral allegation made by 20 persons for none supply one cannot be prosecuted.For the purpose of prosecuting a person, it is necessary that F.I.R. must disclose commission of an offence and only on presumption prosecution is not permissible. 6. In the facts and circumstances of the present case, I find that in mechanical manner, - 6 - the learned Magistrate only by reiterated some of the contents of the F.I.R. has taken cognizance of the offence. Accordingly, I am of the opinion that allowing prosecution on such an F.I.R., which does not disclose commission of the offence, will amount to abuse of the process of the court and with a view to prevent the abuse of the process of the court, it is necessary to interfere even at initial stage of cognizance in the present case. As such with a view to prevent the abuse of the process of the court, it is desirable to set aside the order dated 30.11.1999. 7. Accordingly, order of cognizance dated 30.11.1999 passed in Tariyani P.S. Case No.45 of 1999/G.R. No.150 of 1999 is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 14.5.2010 N.A.F.R./N.H.