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Judgment
S.R. Brahmbhatt, J.—Heard learned advocate Ms. Pooja Dave with Mr. Pinakin Raval for the Petitioner and learned APP Mr. Kartik Pandya for the Respondent - State.
The Petitioner, accused No. 1 in CR No. II - 13 of 2005 registered with Mansa Police Station for the offences punishable under Sections 3 and 7 of the Essential Commodities Act, 1955 has approached this Court u/s 482 of Code of Criminal Procedure for seeking quashment of the said complaint on the grounds stated in the petition.
The Respondent No. 2, complainant, in discharging of his duties as Police Sub Inspector lodged the complaint in the form of First Information Report being CR No. II - 13 of 2005 for the offences punishable u/s 3 and 7 of the Essential Commodities Act, 1955 as the in-charge of this police station received unanimous telephone informing police that at village Galthara some unknown person has offloaded 19 barrel of blue kerosene and no one is looking after it. After making requisite entry in the diary, police rushed to the place and Sarpanch of the village was called, who informed the police that the kerosene was offloaded by the Petitioner. On these facts, complaint came to be registered.
During the pendency of this petition for quashment, learned APP Mr. Kartik Pandya received communication dated 07.04.2005 from the investigation officer and it was indicated therein that the kerosene was belonging to Petitioner, who had taken delivery thereof from the competent depot and offloaded it. He is not supposed to be offloaded or disposed of illegally in the open market. This Court (Coram: Hon''ble Mr. Justice Jayant Patel) on 04.08.2005, has passed following order:
This Court on 29.7.05 had passed the order whereby the investigation made by the police shows that the quantity of the kerosene was unloaded unauthorisedly, However, perusal of the letter, dated 4.2.05 issued by the Mamalatdar to the Dist. Supply Officer shows that the delivery of the kerosene was taken under the authority and it was for the distribution to the cardholders. Further, the copy of the letter, dated 13.7.05 issued by the Distrit Collector to the PSI, Mansa, copy whereof is made available to the court by Mr. Gohil, Ld. APP during the course of hearing shows that the police has taken action without consulting the local Mamalatdar and with malafide purpose has taken the custody of the kerosene as if it was unclaimed. Therefore, it is opined by the Collector that the police has not taken action in accordance with law. The quantity of kerosene was meant for distribution and the same was allotted for lawful purpose and therefore the permission for filing charge sheet is not granted.
The aforesaid prima facie shows that without there being proper authority complaint is filed and prior thereto it is alleged that the Head Constable-Prahladbhai and the Writer-Arvindbhai demanded money before registering the complaint.
The aforesaid prima facie creates serious doubt upon the bonafides of the police in registering the FIR and the action taken, more particularly, in view of the decision/opinion of the District Collector, dated 13.7.05. Hence, RULE.
By interim order, the proceedings of complaint vide CR No. 13/05 of Mansa Police Station shall remain stayed.
It is made clear that the pendency of this petition shall not operate as bar to the Petitioner to move appropriate application to the concerned court for getting the custody of the kerosene and also for taking appropriate action against the concerned police officers, if otherwise, permissible in law.
Today, when the matter was taken-up for hearing, learned advocate for the Petitioner contended that in view of the prima-facie findings recorded by this Court, while passing interim order, coupled with the fact that the case of the complainant was highly improbable, the Court may interfere and quash and set aside the complaint itself.
Learned APP Mr. Pandya appearing for the State could not controvert the fact that the complainant has mentioned of having receipt of unanimous information on the telephone. Ordinarily, when such information is given on telephone, police insist for the name of the person, who make such phone call, but, there is no attempt, shown to be made. The Court while issuing Rule, clearly observed that the police has not taken action in accordance with law. The quantity of kerosene was meant for distribution and the same was allotted for lawful purpose and therefore the permission for filing charge sheet is not granted.
In view of the facts and circumstances, complaint is required to be quashed and accordingly quashed.
Rule is made absolute.