SHAMBHU GOEL Vs. STATE OF BIHAR

JUDGEMENT

(1.) The Director (Agriculture), Government of Bihar, inter alia, took a decision restricting manufacturers of fertilizer from purchasing fertilizers from the open market to be used as raw material for manufacturing mixture of fertilizers which were then to be sold to the farmers. This and decisions in this line were challenged in this Court by various manufacturers of fertilizers in the State. After hearing the parties including Union of India by judgment and order dated 26.2.2009 passed in CWJC No. 11606 of 2008 and analogous case, the writ petition was allowed. This Court in detail noted that no such restriction could be put by the Director of Agriculture. This Court noticed the definition of wholesale dealer as provided under the Fertilizer Control Order and clearly found, as noted hereunder:--

(2.) The petitioner, in substance, seeks quashing of this very institution of the FIR on the ground that accepting the facts stated in the FIR, no offence is made out. It is submitted that the very premise on basis of which the FIR is lodged is wrong in view of the judgment of this Court, as noticed above, where both the factors that is the subsidy and the right of the wholesaler have been dealt with and settled. The said judgment had attained finality and that being so, the FIR, on the face of it, is misconceived.

(3.) Learned counsel for the State submits that' once the FIR has been lodged, the petitioner has to face the investigation and the trial. If so advised, he may file a petition for discharge once charge-sheet is filed and cognizance is taken. I am afraid that is not the law. More than 75 years back, the Privy Council in the case of Emperor vs. Khwaja Nazir Ahmad, 1945 AIR(PC) 18 had clearly held that power to investigate under Section 154(1) of Criminal Procedure Code (Cr.P.C.) is untrammeled and cannot be interfered with by Courts but in the same very judgment, it said the jurisdiction of the police to investigate a crime is dependent upon an FIR disclosing a cognizable offence. In absence of an FIR disclosing a cognizable offence, the police has no jurisdiction to register an FIR muchless investigate. It is in that judgment itself, the Privy Council had said that if a procedure is established by law to do something then either procedure has to be followed as all other procedures are impliedly prohibited. This proposition has never been deprecated from or dissented by any judgment so far rather this proposition has been accepted by all judgments that I can recall.