OM PARKASH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS petition has been filed by the accused against whom challan has been presented under Section 420 of the I.P.C. The F.I.R. was registered against the petitioner under Section 7 of the Essential Commodities Act and Section 420 of the I.P.C. and it is alleged that challan has been presented under routine manner. The prayer of the petitioner is that challan and the subsequent proceedings be quashed. The grounds for prayer for quashing are as under : "(a)That the complainant Ram Pal Singh Chauban, Sub Divisional Agricultural Officer, Karnal having withdrawn from the complaint, No F.I.R. can be stated to be existing against the petitioner under Section 154/155 of the Code of Criminal Procedure. Once the complainant has withdrawn from the complaint on which the F.I.R. No. 280 of 16.2.1993 came into existence, the important question would be whether the F.I.R. itself can be said to be in existence. Moreso, the investigating officer or the In -charge of the Police Station concerned is not resorted to invocation of the powers for investigating the offence suo moto as provided in the Code of Criminal Procedure. (b) That the complainant having admitted the non -commission of the offence under Section 7 of the Essential Commodities Act, which is committed only on account of violation of Clauses 4 and 35 of the Fertilizer (Control) Order, 1985, to say that the petitioner has charged in excess of the price list as provided under Clause 4 of the Fertilizer (Control) Order, 1985, the inference would be that the petitioner has not charged in excess of the price list. Similarly, no violation of maintenance of record and submission of returns can be said to be made out under Clause 35 of the Fertilizers (Control) Order, 1985 in such circumstances. (c) That the complainant having withdrawn from his complaint on the basis of which the present F.I.R. came into existence it is patently clear that no offence under Sections 415 to 420 particularly under Section 420 I.P.C. can be said to be made out. Only on oral testimony the petitioner cannot be put to trial particularly in the situation when the complainant has withdrawn and no F.I.R. can be said to be existing under Sections 154 and 155 of the Code of Criminal Procedure. (d) That in the present case no recovery having been effected, no case property having been mentioned, there remains no offence under Section 420 I.P.C., having been made out by the investigating officer. Particularly, when the very ingredients of the offence of cheating, which were tried to be made on the alleged statement of the Sub -Divisional Agricultural Officer, for violation of Clause 4 of the Fertilizer (Control) Order, 1985 have been withdrawn. (e) That the petitioner is not the proprietor of Laxmi Khad Bhandar and is, therefore, not liable to be prosecuted for the commission and ojnission of any alleged acts by that firm. (f) That the statement of challan presented under Section 173 Cr.P.C. on 9.11.1993 is contrary to the provisions of Section 154 and 155 Cr.P.C."

(2.) THE learned Advocate for the petitioner has relied on the judgement case of Darshan Singh v. State of Punjab, 1984 (2) Recent C.R. 558 in which in the learned Single Judge of this Court has observed that when the allegations in the F.I.R. did not disclose prima facie commission of an offence, the police has no power to investigate into the case and when the allegations did not disclose the essential ingredients of offence, the High Court found it proper to quash the proceedings. However, the question of facts cannot be gone into at this stage because without appreciating the evidence, it.will not be proper to quash the F.I.R. The principles laid down in the case of State of Bihar v. Sri Rajendra Agrawalla, J.T. 1996(1) SC 601: [1996(l) All India Criminal Law Reporter 336 (SC)] will come in the way of quashing the proceedings on the factual aspect. In that case, the Apex Court has observed that exercise of the inherent power is exceptional and great care must be taken by the High Court to scuttle the prosecution at its inception.

(3.) THE learned Advocate for the petitioner has argued that F.I.R. was for the offence committed because of the breach of the contract order and, therefore, the petitioner cannot be challaned under Section 420 of the I.P.C. However, there is no base for this argument. If on the facts alleged, investigation is made and during the investigation it is found that certain other offences are also committed then the challan can be presented for those offences. Apart from this position, the question now to be decided is when after the F.I.R., the challan has been filed and whether this Court should use inherent powers to quash the challan in the F.I.R. The Apex Court in the case of State of Bihar and another v. Shri P.P. Sharma and another etc. AIR 1991 S.C. 1260 :[1991(l) All India Criminal Law Reporter 722 (SC)] has observed that "we are of the considered view that at a stage when the police report under Section 173, Cr. P. C. has been forwarded to the Magistrate after completion of the investigation and the material. collected by the investigating officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings at that stage in exercise of its inherent jurisdiction."