RAM KISHAN MEHRA Vs. STATE OF HARYANA

JUDGEMENT

(1.) THESE are criminal revisions No. 319 and 416 of 1996 whereby petitioners herein have challenged the order Annexure P-1 and charge Annexure P-2 framed by Special Judge, Bhiwani (exercising powers under the Essential Commodities Act, 1955). The facts of the prosecution case are as follows :-

(2.) PROSECUTION evidence was recorded. Statements of Rajinder and Prem Parkash were recorded under Section 313 of the Code of Criminal Procedure. They did not lead any evidence in defence. Resultantly, case was posted for arguments. During the course of arguments, Special Judge, Bhiwani felt that Ved Pal Singh depot holder had actually obtained 1760 litres of Kerosene from the wholesale depot of Gupta Agency on 6.2.1993 and Ved Pal Singh depot holder was the source of the illegal possession of kerosene by Rajinder and Prem Parkash. He also felt that Investigating Officer had not investigated the case fairly with a view to vindicate the law; he rather investigated the case with a view that no insinuation surfaced against Ved Pal Singh depot holder. He felt that record showed that sufficient time had been given to Ved Pal Singh and the Civil Supplies Authorities for preparing the record in the defence of Ved Pal Singh, depot holder. He felt that Manak Chand Jain, Inspector, Food and Supplies and R.K. Mehra, Assistant Food and Supplies Officer had connived with Ved Pal Singh so that kerosene sold by him in black which did not reach the poor consumers was not detected. He accordingly issued show cause notices to them vide order dated 25.5.1995 calling upon them to show cause why they should not be arraigned as accused with Rajinder and Prem Parkash for violation of the provisions of the Essential Commodities Act. They appeared in response to show cause notices and they put in separate replies thereto. After considering their replies to the show cause notices, Special Judge, Bhiwani felt that there was effort on the part of Sarvshri R.K. Mehra and Manak Chand Jain to save depot holder from punishment and sufficient time was given to him for forging the record. As regards Ved Pal Singh, he felt that there is his confession in the handwriting of police official that he had sold kerosene to Rajinder Singh and Prem Parkash at the rate of Rs. 900/- per drum. He ordered Ved Pal Singh, Manak Chand Jain and R.K. Mehra to be arraigned as accused with Rajinder and Prem Parkash vide order dated 30.3.1996. Vide order Annexure P-2, he charged them for offence punishable under Section 218 of the Indian Penal Code read with Section 7 of the Essential Commodities Act.

(3.) IN support of the charge framed against Rajinder and Prem Parkash, Piare Lal PW.1, Risal Singh PW.2, R.K. Sharma, Inspector/SHO Police Station City, Bhiwani PW.3 and Rajinder Kumar PW.4 appeared before Special Judge, Bhiwani. All that they have stated is about the recovery of three drums containing kerosene from the possession of Rajinder and Prem Parkash in a three-wheeler. They have not even remotely stated that they had purchased this kerosene from Ved Pal Singh and Ved Pal Singh had sold this kerosene to them in black and by sale of kerosene in black, he had deprived the ration card holders from their right to purchase kerosene at cheap rate. Sh. R.K. Sharma who investigated this case has stated that he recorded the statement of Ved Pal Singh, according to which he had sold kerosene to the accused at the rate of Rs. 900/- per drum. He did not interrogate Ved Pal Singh. Rajinder Kumar PW.4 stated that he was salesman of Gupta Agency owned by Sanjay Kumar, wholesale dealer of kerosene. On 6.2.1993, he issued 1,760 litres of kerosene to Ved Pal Singh, depot holder on permit. Ved Pal Singh depot holder lifted this kerosene on 6.2.1993 and took it away to his depot. There is nothing tangible appearing in the statements of these witnesses against Ved Pal Singh, depot holder, Manak Chand Jain, Inspector, Food and Supplies and R.K. Mehra, Assistant Food and Supplies Officer. Special Judge, Bhiwani, in his order Annexure P-7 dated 25.5.1995 observed that Ved Pal Singh, depot holder had sold kerosene which was being transported at about 10.00 in the night through Rajinder and Prem Parkash. Ved Pal Singh was not arraigned by the Investigating Officer as an accused and investigation was not directed against him. He summoned police file lying with the Public Prosecutor with a view to know about the line of the investigation and the truth or innocence of Ved Pal Singh, depot holder. Investigating Officer stated that record of Ved Pal Singh, depot holder was found in order but he did not interrogate Ved Pal Singh, depot holder. He went to raid the premises of Ved Pal Singh but those were found locked. Special Judge, Bhiwani entertained doubt about the correctness of the version of the prosecution and correctness of the investigation by the Investigating Officer from this version made by the Investigation Officer which to his mind was contradictory. After perusal of the police file, Special Judge, Bhiwani felt that Investigating Officer had acted more as counsel for Ved Pal Singh, depot holder than as an independent Investigating Officer, investigating the case impartially and independently. Case diary showed that on 12.3.1993 Ved Pal Singh was joined in the investigation. Assistant Food and Supplies Officer, Bhiwani vide letter No. A.F.S.O/104 dated 15.2.1993 issued show cause notice to Ved Pal Singh, depot holder to produce record of distribution of sugar, rice, wheat and kerosene from his depot in the month of February, 1993. According to Manak Chand Jain, Inspector, Food and Supplies, he had verified the issuance of kerosene to 168 card holders in the month of February, 1993 and had recorded statements of ration card holders and found that everybody had received kerosene from Ved Pal Singh, depot holder. Learned Special Judge, Bhiwani made fishing enquiry to fasten liability upon Ved Pal Singh, Manak Chand Jain and R.K. Mehra, accused. It was not desirable on the part of Special Judge, Bhiwani to have summoned the police file and go through the case diary with a view to fasten liability upon Manak Chand Jain, R.K. Mehra and Ved Pal Singh-accused. R.K. Mehra, Assistant Food and Supplies Officer had in reply to show cause notice stated that he does not figure as an accused either in the statements of witnesses recorded under Section 161 of the Code of Criminal Procedure or the documents appended thereto. He had simply marked the letter of DFSC, Bhiwani to Inspector, Food and Supplies Officer for necessary action and report in discharge of his official duties and on receipt of the report of Inspector, Food and Supplies Officer, he forwarded the same to the District Food and Supplies Controller. He was never joined during investigation or enquiry at any stage by the local police or the departmental authorities. He had no knowledge of sale of kerosene by Ved Pal Singh to anybody during the month of February, 1993. He is his reply to the show cause notice had submitted that he held a door to door enquiry from various ration card holders to find out if they had actually drawn kerosene on their cards. He correctly recorded what was stated by them and sent his report. Enquiry was held to ascertain whether depot holder had issued kerosene to the card holders and it was not being held to protect or defend the depot holder. Special Judge, Bhiwani appears to have exceeded the jurisdiction vesting in him. He could not have sought the police file and perused the case diary and hold fishy enquiry to fasten liability upon Manak Chand Jain, R.K. Mehra and Ved Pal Singh. In the Code of Criminal Procedure there is only Section 319 which empowers the Court to proceed against other persons appearing to be guilty of an offence. Section 319 of the Code of Criminal Procedure lays down as follows :-