The Court emphasized that if an FIR does not disclose an offense, it cannot be registered, and the police cannot investigate or file a chargesheet, in line with the established legal principle.

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 26.02.2009 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:

“… … … It is submitted that if subsidised fertilizers are used by manufacturers of mixture of fertilizer then the agriculturist would be deprived of the subsidy. The straight answer to this is to be found in Annexure-3 the office memorandum of Government of India in the Department of Fertilizer dated 28th March, 2002 wherein the policy of the Government of India who is the author of the FCO has been stated. It permits the use of subsidized fertilizer for manufacture of mixture of fertilizer. … … …”

This Court further held thus:

“… … … To my mind, what is sought to be defined is that a wholesale dealer is not to have any link with agriculturist. He does not deal with agriculturist because that is within the exclusive domain of retail dealers. Beyond this, this definition does not restrict the dealings of a wholesale dealer. Learned counsel for the State submits that this does not permit the wholesale dealer either to sell fertilizers to units manufacturing mixture of fertilizers. Here again, the submission is misplaced. … … …”

2. Thus, this Court settled the issue of alleged misutilization of subsidy in fertilizer and the restrictions on the right of the wholesaler to sell such fertilizers to manufacturers. No sooner this judgment was delivered, in a retaliatory action, first information report (FIR) (Annexure 1) was lodged on 18.05.2009 on the directions of the same very Director against the petitioner, inter alia, alleging that the petitioner held a wholesale licence for dealing in fertilizer. He was procuring fertilizers from IPL to sell to farmers. This fertilizer that is DAP was subsidized by the Government and instead selling it to the farmers, it was selling it to the manufacturers of mixture of fertilizers. It has, therefore, violated the provisions of the Fertilizer Control Order and misutilised the subsidy that was paid to the IPL for the said fertilizer. Upon this FIR being filed, the present case being Forbesganj Police Station Case No 145 of 2009 dated 18.05.2009 was registered under Section 7 of the Essential Commodities Act at the instance of the District Agriculture Officer, Araria.

3. 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.

4. 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 chargesheet 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 Versus Khwaja Nazir Ahmad, AIR 1945 PC 18 had clearly held that power to investigate under Section 154 (1) of Criminal Procedure Code (Cr PC) is untrammeled and cannot be interfered with by Courts bu