Manish Kumar Yadav vs State of Madhya Pradesh

S.C. Pandey, J.

This revision is directed against the order dated 8-2-2000, passed by Sessions Judge, Narsinghpur, in Special Case No. 2/2000.

The facts of this case are that the petitioner Manish Kumar Yadav is the proprietor of Krishna Gas Agency, Gadarwara, District Narsinghpur, allotted to him in the capacity of a handicapped person. It is the case of the petitioner that he resides permanently at Jabalpur and visits Gadarwara occasionally for supervising the work of the said agency. The Food Officer and the Food Inspector had received information that the persons-in-charge of Krishna Gas Agency, Gadarwara, were supplying gas cylinders to the customers at the rate of Rs. 180/- per cylinder and the actual price of a cylinder was already reduced to Rs. 170.10, with effect from 5-3-99. Thereafter, upon making an enquiry, the Assistant Food Officer and the Food Inspector, on 6-3-99, found that Avnish Tiwari and Deepak Budholiya who were running the Krishna Gas Agency, were selling the gas cylinders of L.P.G. on higher rate. Consequently, the police, after investigation, filed a charge-sheet against Avnish Tiwari and Deepak Budholiya. The Investigating Officer was of the view that the petitioner Manish Kumar Yadav was not at Gadarwara at the time the gas cylinders were being sold at Krishna Gas Agency, as his wife had given birth to a child on 5-3-99, and since he was not aware of the matter, it was thought proper not to prosecute him. Accordingly, an application/report u/s 169 of the Code of Criminal Procedure was filed alongwith the challan stating that the petitioner was not found to be guilty of any offence.

The learned Sessions Judge, Narsinghpur, by the impugned order dated 8-2-2000 decided the aforesaid application u/s 169 of the Code of Criminal Procedure, holding that the petitioner Manish Kumar Yadav was liable to be prosecuted alongwith co-accused Avnish Tiwari and Deepak Budholiya; and, therefore, directed that the name of the petitioner be shown in the charge-sheet alongwith the said two co-accused persons.

I have heard the learned counsel for the parties and gone through the record of the case.

The learned counsel for the petitioner argued that no offence against the petitioner was made out and for this reason the impugned order is bad in the eyes of law. He further argued that the Sessions Judge had no power to direct the prosecution to file a charge-sheet against the petitioner when the prosecution had filed a report to the effect that the petitioner was not liable to be prosecuted. He, therefore, stated that the direction of learned Sessions Judge including the name of the petitioner as one of the accused persons in the charge-sheet amounted to directing the prosecution to file a charge-sheet against the petitioner. It is argued that what the Sessions Judge, could not, do indirectly what he could not do directly, by asking the prosecution to name the petitioner as an accused person in the charge-sheet already filed in the Court.

The learned Government Advocate, on the other hand, in his argument supported the impugned order and stated that it does not call for any interference of this Court as there is nothing wrong done in the impugned order by the learned Sessions Judge.

The first question that has to be determined is if the petitioner can be said to be guilty of any offence. It is true that the petitioner was not present at Gadarwara on 6-3-99. It is also probable that he was not aware of the manner in which the co-accused persons conducted the sale of cylinders. It may also be true that the petitioner may not have personal knowledge about the decrease in price of the gas cylinders, but the real question is-if as a proprietor of Krishna Gas Agency, the petitioner is statutorily liable for violation of The M.P. Essential Commodities (Exhibition of Prices & Price Control) Order, 1977 (henceforth ''the Order of 1977'') and The Liquified Petroleum Gas (Regulation and Supply and Distribution) Order, 1993 (henceforth ''the Order of 1993'').

Taking the Order of 1993 first, for consideration, it appears that the petitioner would be a "distributor" within the meaning of that Order because he is engaged in the business of purchase, sale or storage for sale of liquified petroleum gas in cylinders to consumers on the basis of an agreement or otherwise with a Government Oil Company. As a distributor, the petitioner was marketing or selling liquified petroleum gas under Government Control on declared price and, therefore, he is a public distributor under the Distribution Scheme, approved by the Central or the State Government. In other words, he was appointed as a "distributor" under the public distribution system. To him, Clause 7 of the Order of 1993 would apply, according to which, the petitioner is required to display prominently, the stock and price of the liquified petroleum gas, and further Clause 8, inter alia, by Sub-clause (d) thereof provides that a distributor, appointed under the public distribution system, shall not sell the liquified petroleum gas, at a price higher than that was fixed by the Government Oil Company. Similar provisions can be found in the Order of 1977, Clause 3 which deals with exhibition of price list and Clause 4 deals with charging of prices. The sum and substance is that the petitioner was required to exhibit price list and he was not permitted to sell the liquified petroleum gas cylinders at a higher price than that was fixed by the Central Government or State Government under the aforesaid Orders. It is apparent that this prohibition was imposed upon the petitioner who was allotted an agency for selling the liquified petroleum gas cylinders.

Section 3 of the Essential Commodities Act, 1955 (henceforth ''the Act'') empowers the Central Government, inter alia, to provide for controlling the price at which any essential commodity may be bought or sold. It is apparent that the two Orders mentioned above were framed by the Central Government and the State Government in exercise of powers u/s 3 of the Act. Section 7 of the Act provides for punishment for violation of the orders issued u/s 3 of the Act. The applicant was, therefore, liable, as a distributor of essential commodities, if the agency belonging to him sold the gas cylinders of liquified petroleum gas at a higher price than that which was already fixed by the Central Government. Prima facie, the applicant cannot shirnk from the responsibilities placed upon him by the statute, by saying that he was not in-charge of the shop at the time the gas-cylinders were sold at a higher price in the shop and thus, the orders issued u/s 3 of the Act were not violated by him. In the opinion of this Court prima facie, the offence is statutory and does not depend upon the intention of the accused persons. The distributor of gas-cylinders is enjoined by the statute to make such orders that the Orders issued u/s 3 of the Act are not violated. The applicant would be liable even if his servants and employees violate the orders aforesaid. It would be no defence to say that the applicant was not aware how the liquified petroleum gas cylinders were dealt with by his employees. In other words, the offence u/s 3 readwith Section 7 of the Act is out and out of technical in nature. For this reason, the contention of the learned counsel for the applicant that the accused/applicant should be absolved on the ground of his ignorance of the affairs at Gadarwara, cannot be accepted. As a distributor of public distribution system, it was incumbent upon the applicant to see whether there is a likelihood of breach of any of the aforesaid Orders issued by the Central or State Government.

Now, this brings us to the second contention of the learned counsel for the applicant. He has argued that the investigating agency could not be compelled to file a charge sheet against a person at the instance of the Court when it has declared that the aforesaid person is not liable to be prosecuted. The contention of the learned counsel for the applicant is attractive and is apparently supported by the decision of the Supreme Court in the case of Abhinandan Jha and Others Vs. Dinesh Mishra, . In that case, decided under the old Code of Criminal Procedure, their Lordships of the Supreme Court pointed out, after elaborate discussion of various provisions of the Code of Criminal Procedure, that the Court or the Magistrate could not direct the investigating agency to file a charge-sheet against an accused person if the prosecution had indicated in report u/s 169 of the Code of Criminal Procedure that they did not find any evidence against the accused person. It was held that once the police formed an opinion that a person is not liable to be prosecuted on the basis of investigation conducted and the material collected by it, it would amount to take a final step, and it was held that once this final step was taken, no other authority including a Court of Law, could interfere with the opinion of the Investigating Officer. Consequently, the Court could not compel the Investigating Officer to file a complaint against a person, in exercise of its powers under the Code of Criminal Procedure. However, the Court was of the view that this aspect of the matter did not preclude the Magistrate from taking cognizance of offence on the basis of the material placed before him by the prosecution. In this connection paragraph 17 of the decision rendered by the Supreme Court in the case of Abhinandan Jha and Ors. (supra) is relevant, which is hereby reproduced as follows :-

"(17) We have to approach the question arising for consideration in this case, in the light of the circumstances pointed out above. We have already referred to the scheme of Chapter XIV, as well as the observations of this Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, that the formation of the opinion as to whether or not there is a case to place the accused on trial before a Magistrate, is left to the officer in-charge of the police station. There is no express power, so far as we can see, which gives jurisdiction to pass an order of the nature under attack nor can any such powers be implied. There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of the police, to take cognizance, u/s 190(1)(c) of the Code. That provision in our opinion, is obviously intended to secure that offence may not go unpunished and justice may be invoked even where persons individually aggrieved are unwilling or unable to prosecute, or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence. Therefore, a very wide power is conferred on the Magistrate to take cognizance of an offence, not only when he receives information about the commission of an offence from a third person, but also where he has knowledge or even suspicion that the offence has been committed. It is open to the Magistrate to take cognizance of the offence, u/s 190(1)(c), on the ground that, after having due regard to the final report and the police records placed before him, he has reason to suspect that an offence has been committed........"

It is apparent from the aforesaid quotation that the Magistrate or the Judge taking cognizance of an offence may not have power to ask the police to file a charge-sheet but he can exercise his power u/s 190(1)(c) of the Code of Criminal Procedure of taking cognizance of an offence on the basis of information received from the material placed on record. In the opinion of this Court, that is why the learned Sessions Judge has taken the cognizance of the offence and directed to show the applicant as one of the accused persons in the charge-sheet. It appears to this Court that by doing so, the learned Sessions Judge has not required the police to file a charge-sheet against the applicant but he has merely taken cognizance of the offence and directed the prosecution to show the applicant also as one of the accused persons in the charge-sheet, already filed before the Court against other accused persons.

For the foregoing reasons, this Court is of the view that there is no merit in this revision. The revision fails and it is, accordingly, dismissed.