IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12201 of 2000 RAJIV KUMAR AGARWAL, SON OF KAILASH AGARWAL, PROPRIETOR, JAGDAMBA COKE MANUFACTURING ENTERPRISES AND MIDDLETON RAW, 3rd FLOOR, BLOCK- G, KOLKATA- 700 071 ---------------------------------------------------------------------------------------------------- PETITIONER Versus 1. THE STATE OF BIHAR 2. CHANDRA SHEKHAR SINGH, INSPECTOR, R.P.F., MUGHALSARAI WORKSHOP, P.S. CHANDULI, DISTRICT CHANDAULI. 3. INSPECTOR, R.P.F., JAMALPUR RAILWAY WORKSHOP, JAMALPUR, DISTRICT MUNGER. ------------------------------------------------------------------------------------------- OPPOSITE PARTIES ********* For the petitioner :- Mr. B.P. Pandey, Sr. Advocate Mr. Jagannath Singh, Advocate Mr. P.C. Sinha, Advocate Mr. S.C. Giri, Advocate For the State :- Mr. J.K. Singh No.1, A.P.P. 9 4.1.2011 Petitioner has challenged the order dated 8.6.1999, refusing to discharge the petitioner for the offences under Sections 420 and 120B of the Indian Penal Code. A First Information Report has been instituted by the Railway Protection Force alleging therein that the petitioner and his associates were supplying sub-standard coal at Jamalpur to the railways. On suspicion the truck of the petitioner was stopped by the Railway Protection Force and they came to the conclusion that instead of providing coal, the petitioner was providing coal dust. Learned counsel for the petitioner 2 relies on an agreement between the railways and the petitioner with respect to supply of coal. Specifically he relies on Clause 3.0 (i) and Clause 5.0, Sub-Clause A (ii) which reads as follows: 3.0 Inspection : (i) The supplier at their own cost will arrange inspection and tenting of hardcoke before despatch by any one organization among the following authorities. (a) Coal Controller (b) CFRI/Dhanbad (c) Coal Inspection Services Dhansar/DHN (d) Supdt. Of companies of India (P) Ltd. Dhanbad The certificate of inspection will accompany the consignment. 5.0 Penalty Clause : Clause A (ii) As per Sr. CMT/JMP/LLH/KPA analysis if the ash is found more than 28% the supplier will be liable to pay a penalty of Rs. 40/- per tonne for every 1% increase in ash contsnt over 28% fraction prorata. In case of coke supplied is found having more than 30% ash, the hardcoke supplied will stand rejected at the cost of the supplier and only Rs. 1/- per tonne shall be payable or the supplier will have to make their own arrangement to lift the rejected hard coke from the Railway premises at their own cost. The agreement aforesaid is not part of the First Information Report. It has been submitted that proper authority to lodge a complaint is the Railway Authority with whom the petitioner had entered into an agreement. It was incumbent on the authority in the Eastern railways to get 3 inspection of the coal supplied in order to determine the quality of coal supplied which may have led to the conclusion that the petitioner was liable for committing the offence of cheating. The main argument however, is that even if it is accepted that the Railway Protection Force had the power to institute a criminal proceeding against the petitioner, it would be incumbent on the Railway Protection Force to hand over the seized truck with coal to the Eastern Railways or to any other appropriate authority for the purposes of inspection and determining as to whether the supply of coal was of good or bad quality. It is submitted that the Railway Protection Force has no authority or expertise to judge the quality of coal without expert advice. It is further submitted that there is nothing in the case diary which would substantiate the claim that the petitioner had not supplied coal rather he was carrying coal dust to be supplied to the railway authorities at Jamalpur. While parting with the order, I may 4 observe the Inspector, R.P.F., Jamalpur Railway Workshop and Mughalsarai Workshop, P.S. Chandauli were made opposite parties in this application. Despite notices, it appears that nobody has appeared to pursue the matter. A formal counter affidavit has been filed on behalf of the State which does not really answer the points raised on behalf of the petitioner. After considering the submissions, I quash the order dated 24.3.2000, passed in G.R. No. 2386 of 1996 and direct that the concerned Court may rehear the matter with respect to discharge of the petitioner in the light of the submissions noted above by this Court. The petitioner will file a fresh application with a copy of this order within a period of eight weeks on receipt of this order before the concerned Court who will dispose it of as expeditiously as possible. This application is, thus, disposed of. Sanjay ( Sheema Ali Khan, J.)