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IN THE HIGH COURT OF MADHYA PRADESH
Vivek Agarwal, J.
Jagdish Korku v. State of M.P. and another
Miscellaneous Criminal Case No.3755 of 2016 (Gwalior);
Decided on 1.7.2016.
Held : In the present case, situation is different in as much as FIR clearly makes out a case of misappropriation of public goods entrusted to the petitioner in his capacity as Manager of a Cooperative Society along with the salesman who have failed to distribute the properties held by them in trust in the manner in which they were liable to distribute. Miscellaneous Criminal Case No.2967 of 2008 and Miscellaneous Criminal Case No.8836 of 2013; decided on 13.3.2015 distinguished.
[Para 13
(2) Essential Commodities Act, 1955 -- S.3/7 -- Penal Code, 1860 -- Ss.405 and 409 -- sections of Act and Code operate in a different plane -- therefore, provisions of section 3/7 of Act, 1955 does not constitute same offence as contained in section 409 of IPC -- no punishment prescribed for offence under section 409 of IPC in Act, 1955 -- therefore, charge under section 409 of IPC maintainable -- no case for quashing FIR -- petition dismissed.
Held : In the present case, section 3/7 of the Essential Commodities Act operate in a different plane and the provisions of section 409 of IPC are on a different plane. Therefore, the provisions of section 3/7 of Essential Commodities Act does not constitute the same offence as contained in section 409 of IPC .... In the instant case as no punishment is prescribed for the offence under section 409 of IPC in the Essential Commodities Act, 1955, therefore, charge under section 409 of IPC is maintainable. 2010 CrLJ 1953 (Jha) relied on.
¼1½ vko';d oLrq vf/kfu;e] 1955 & /kkjk 3@7 & naM lafgrk] 1860 & /kkjk 405] 409] 5 rFkk 201 & izFke bfryk fjiksVZ vfHk[kafMr djkus gsrq ;kfpdk & eky lkoZtfud forj.k iz.kkyh ds v/khu 'kklu }kjk izkIr djk;k x;k lfefr dks U;Lr fd;k x;k ftlesa ;kph turk dks forj.k djus ds fy, izca/kd gSa & ;fn ,sls Hkjksls ij vfrdze.k gS & HkkŒnaŒlaŒ dh /kkjk 409 ds v/khu vijk/k curk gS & izFke bfryk fjiksVZ Li"V :i ls fodzsrk ds lkFk lkoZtfud eky ds nqO;Zins'ku dk ekeyk cukrh gS tks muds }kjk Hkjksls esa j[kk x;k] forj.k djkus esa vlQy jgk ;kfpdk [kkfjtA
vfHkfu/kkZfjr % orZeku ekeys esa] fLFkfr vf/kd ls vf/kd fHkUu gSA izFke bfryk fjiksVZ Li"V :i ls lkoZtfud eky ds nqO;Zins'ku dk ekeyk cukrh gS tks ;kph dks mldh lgdkjh lfefr ds izca/kd dh gSfl;r esa fodzsrk ds lkFk U;Lr fd;k x;k tks fd muds }kjk ml Hkjksls esa j[kk x;k ftlds fy, os forj.k ds fy, nk;h Fks] laifr dks forj.k djus esa vlQy jgkA izdh.kZ vkijkf/kd izdj.k dz-2967 lu~ 2008 rFkk izdh.kZ vkijkf/kd izdj.k dz-8836 lu~ 2013] fu.khZr 13-3-2015 izHksfnrA
¼2½ vko';d oLrq vf/kfu;e] 1955 & /kkjk 3@7 & naM lafgrk] 1860 & /kkjk 405 rFkk 409 & vf/kfu;e rFkk lafgrk dh /kkjk,a fHkUu Lrj esa izorZu esa gS & blfy, vf/kfu;e] 1955 dh /kkjk 3@7 ds mica/k ,d&gh vijk/k xfBr ugha djrs tSlk fd HkkŒnaŒlaŒ dh /kkjk 409 esa varfoZ"V gS & vf/kfu;e] 1955 esa HkkŒnaŒlaŒ dh /kkjk 409 ds v/khu vijk/k ds fy, dksbZ naM fofgr ugha fd;k x;k & blfy, HkkŒnaŒlaŒ dh /kkjk 409 ds v/khu vkjksi iks"k.kh; gS & izFke bfryk fjiksVZ vfHk[kafMr djkus gsrq ekeyk ugha curk & ;kfpdk [kkfjtA
vfHkfu/kkZfjr % orZeku ekeys esa] vko';d oLrq vf/kfu;e dh /kkjk 3@7 fHkUu Lrj esa izorZu esa gS rFkk HkkŒnaŒlaŒ dh /kkjk 409 ds mica/k fHkUu Lrj ij gSa] blfy, vko';d oLrq vf/kfu;e dh /kkjk 3@7 ds mica/k ,d&gh vijk/k dk xBu ugha djrsA tSlk fd HkkŒnaŒlaŒ dh /kkjk 409 esa varfoZ"V gSA -------rkRdkfyd ekeys esa vko';d oLrq vf/kfu;e] 1955 esa HkkŒnaŒlaŒ dh /kkjk 409 ds v/khu vijk/k fy, naM fofgr ugha fd;k x;k gS blfy, HkkŒnaŒlaŒ dh /kkjk 409 ds v/khu vkjksi iks"k.kh; gSA 2010 lhvkj ,y ts 1953 ¼>k-½ voyafcrA
1. This petition has been filed under section 482 of CrPC for quashing the proceedings pending before the CJM, Ashok Nagar in case No. 2544/2015, arising out of the FIR registered at Crime No.330/2015 by which offence has been registered under the Provisions of section 3/7 of the Essential Commodities Act,1955 read with sections 409, 201 of IPC.
2. Petitioner is a Manager of Dongra Sahkari Samiti Mungawali, Ashok Nagar which has been entrusted with the work of running a fair price shop under the Public Distribution System. As per the contents of the FIR, the Junior Supply Officer during inquiry had sought copies of the stock register, distribution register of food grains and other items so also allotment order, delivery order, distribution slips etc. from the petitioner and the salesman but said documents were not supplied and on contacting the consumers it was revealed that there were serious discrepancies in the quantity of foodgrain supplies to the beneficiaries as a result it was found that prima facie an offence under section 3/7 of the Essential Commodities Act is made out.
3. Accordingly an FIR was lodged under section 3/7 of the Essential Commodities Act. It is the contention of the petitioner that after investigation by the Police Inspector, final report has been submitted to the Chief Judicial Magistrate, Ashok Nagar, wherein besides crime under section 3/7 of the Essential Commodities Act, FIR was registered under sections 409 and 201 of IPC.
4. It is the contention of the petitioner that the Station House Officer being not satisfied with the petitioner has framed him in non-bailable offences punishable under sections 409 and 201 of IPC. It is also submitted by the petitioner that ingredients of offence under section 405 of IPC to make an offence under section 409 are not available from the material on record and, therefore, he has prayed for quashing of the FIR as well as the proceedings pending before the trial Court in Case No.2544/2015.
5. Petitioner has also submitted that in terms of section 5 of IPC which provides that nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of the special local law as there are adequate Provisions under the Essential Commodities Act, 1955, therefore, provisions of section 409 will not be applicable.
6. Petitioner has submitted that he being a Samiti Prabandhak could not have been arrayed as an accused in the offence as the allegations in the FIR are against the salesman and not the petitioner. It is also submitted that no property was ever entrusted to him and, therefore, there is no question of violation of any trust or misappropriating or converting the property dishonestly. It is also submitted that petitioner being not a public servant as per the definition under section 21 of IPC, therefor, Provisions of section 409 of IPC shall not be attracted. In support of his case, petitioner has relied on the decision of this Court in the case of Mahesh Chaurasiya v. State of M.P. and others; decided in Miscellaneous Criminal Case No.2967/2008 so also on the judgment of Allahabad High Court in the case of Pepsico India Holding Pvt. Ltd. v. State of U.P. and others.
7. Learned Panel Lawyer for the State submits that section 3 of the Essential Commodities Act deals with power to control production, supply, distribution etc. of the Essential Commodities. Section 7 of the Act,1955 provides for punishment for violation only of the provisions of section 3 but breach of trust is a different offence not covered under the Essential Commodities Act, therefore provisions of sections 405 and 409 can be enforced as the provisions of IPC are in addition to Provisions of special law and are not in derogation of the Provisions of the special law.
8. Learned Panel Lawyer has also submitted that the provisions of section 409 of IPC not only applies to a public serv
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