V. Raja Rao vs Director of Marketing and Others

S.R. Nayak, J

The petitioner while working as Assistant Market Supervisor in the office of the Agricultural Market Committee, Repalle, Guntur District, filed this writ petition on 10-2-1991. He has sought for a writ in the nature of writ of mandamus declaring that the Respondents 1 and 2 viz., Director of Marketing, Government of Andhra Pradesh and Dy. Director of Marketing, Old Mirchi Yard, Guntur, respectively, have no authority to direct prosecution of the petitioner, and equally the third respondent viz., the Station House Officer, Repalle, has no power to register Crime No.13 of 1992 against the petitioner u/s 409 IPC.

The facts leading to the filing of this writ petition be stated briefly as under : According to the 1st respondent, the petitioner while working as Assistant Market Supervisor, Agricultural Market Committee, Repalle, defalcated the Market Committee funds to the tune of Rs. 11.00 lakhs; the petitioner collected the above amount from the traders towards market fee and did not remit it to the credit of the Market Committee accounts; besides the above defalcation, the petitioner was also held responsible for misappropriation of Rs.2.90 lakhs; the defalcation committed by the petitioner came to light during the inspection of the office of the Agricultural Market Committee, Repalle by the Deputy Director of Marketing, Guntur: thereupon, the Regional Joint Director of Marketing, Vijayawada was appointed as regular enquiry officer, vide G.O. Ms. No.958 Food and Agriculture (Agri. IV) Department, dated 11-12-89; the enquiry officer submitted the report stating that the petitioner defalcated the above amount; the special audit conducted by the Director, Local Fund Audit also established the above defalcation committed by the petitioner; besides the petitioner, another by name Sri K. Venkata Rao, LDC was also involved in the defalcation of the funds of the Agricultural Market Committee and he had defalcated an amount of Rs.1.54 lakhs; the Vigilance Officer who enquired into the embezzlement of Market Committee funds at Agricultural Market Committee, Repalle, in some other connection found that the petitioner and the said K. Venkatarao, LDC were responsible for the embezzlement of Market Committee funds and recommended to the Government to prosecute the two persons; Government of Andhra Pradesh. vide Memo No.42903/Mktg.III (1)/90-1, dated 31-8-1990 directed the 1st respondent to launch prosecution against the petitioner and Sri K. Venkatarao, LDC; accordingly, the 1st respondent authorised the Person-in-Charge, Agricultural Market Committee, Repalle, to launch prosecution against the petitioner and Sri K. Venkatarao, vide proceedings No.Estt.II(5)/3036/S9, dated 19-9-1990; the petitioner filed OA No.6725 of 1991 in the Andhra Pradesh Administrative Tribunal, Hyderabad, challenging the orders of the 1st respondent authorising the Person-in-Charge of the Agricultural Market Committee to prosecute him; the Andhra Pradesh Administrative Tribunal by its order dated 17-9-1991 disposed of the said Original Application and directed the Government and the 1st respondent to authorise any other person other than the Person-in-Charge of the Agricultural Market Committee; as per the direction of the Andhra Pradesh Administrative Tribunal, the 1st respondent vide proceedings No.Estt.II(5) 3036/92, dated 14-2-1992, authorised the 2nd respondent to launch prosecution against the petitioner and Sri K. Venkatarao, LDC; accordingly, the 2nd respondent lodged a complaint with the 3rd respondent in that regard and the 3rd respondent took the complaint on his file and registered the same as Cr.No.13 of 1992. At this stage, the present writ petition was filed in this Court on 10-2-1991 praying for the reliefs noted above.

The learned Counsel appearing for the petitioner contended that the petitioner being an Officer of the Agricultural Market Committee, Repalle, cannot be prosecuted u/s 25 of the A.P. Agricultural (Produce and Livestock) Markets Act, 1966 (for short ''the Act'') without the previous sanction of the Market Committee as required under sub-rule (1) of Rule 46 of the A.P. (Agricultural Produce and Livestock) Markets Rules, 1969 (for short ''the Rules'') and that the Respondents 1 and 2 have no authority or power to direct prosecution of the petitioner; the revisional power conferred upon the Government and the Director of Marketing u/s 27 of the Act do not include the power to direct prosecution of an employee of the Agricultural Market Committee and only the Agricultural Market Committee can direct prosecution of its employee.

On the other hand, the learned Standing Counsel appearing for the respondents would contend that the Director of Marketing or any officer authorised by him has power to launch prosecution against an employee of the Market Committee as provided under sub-rule (2) of Rule 46 of the Rules for statutory offences contemplated u/s 23 read with Section 25 of the Act. Alternatively, the learned Standing Counsel would also argue that the petitioner is guilty of committing crime punishable u/s 409, I.P.C. which crime is both ''cognizable'' and ''non-bailable'' and, therefore, the Respondents 1 and 2 have a duty to bring the commission of the offence to the notice of the police u/s 39, Criminal Procedure Code and the police is under an obligation to register it as a crime and investigate. Therefore, the learned Standing Counsel for the respondents would conclude that no ground is made out for interference.

Admittedly, the 3rd respondent registered Cr.No.13 of 1992 against the petitioner for commission of an offence punishable u/s 409, I.P.C. Section 409, I.P.C. deals with criminal breach of trust by a public servant or by banker, merchant or agent etc., The offence punishable u/s 409, I.P.C. is ''cognizable'' and ''non-bailable". Section 23 of the Police Act, 1861 provides that "it shall be the duty of every police officer.... to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisance; to detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehend, and for whose apprehension sufficient grounds exist; ...." The Criminal Procedure Code, however, does not contemplate the use of the police in respect of investigation into each and every offence. The Code has classified all offences into two categories - "cognizable" and "non-cognizable". Clauses (c) and (1) of Section 2 of the Code define "''cognizable" and "non-cognizable" offences as follows :

"(c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.

(1) "non-cognizable offence" means an offence for which, and "non-cognizable case" means a case in which, a Police Officer has no authority to arrest without warrant."

In case of a cognizable offence, the Police Officer can arrest the alleged culprit without warrant and can investigate into such a case without any orders or directions from a magistrate. The law not only allows the police officers to wield these powers but also enjoins them to exercise the same in respect of a cognizable case. In case of a cognizable offence, it is the responsibility of the State (and the police) to bring the offender to justice.

Generally speaking, it should be the duty of every citizen to report to the police any crime which he knows to have been committed. This would considerably facilitate the detection of crime and enable the authorities to combat crime more effectively. Section 39, Criminal Procedure Code requires that every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the sections of the Indian Penal Code specified in clauses (i) and (xii), shall, in the absence of any reasonable excuse, forthwith give information to the nearest Magistrate or Police Officer of such commission or intention. Clause (viii) pertains to offence punishable u/s 409, IPC.

The 3rd respondent has not registered the crime No. 13 of 1992 against the petitioner for commission of statutory offences contemplated u/s 23 read with Section 25 of the Act. The crime attributed to the petitioner is a crime fully covered by the Indian Penal Code. Although Respondents 1 and 2 are the public servants, they are not exempted from the obligation cast on them u/s 39 Cr.P.C. It cannot be said that the Respondents 1 and 2 are not persons within the meaning of the word "person" used in sub-section (1) of Section 39 Cr.P.C. simply because they are holding Public Office, Similarly, offence alleged against the petitioner being a cognizable offence, the 3rd respondent being a police officer is under a legal obligation to register the crime and investigate into the same as required under Sections 23 and 39 of the Police Act, 1861 and Sections 156 and 157, Criminal Procedure Code. Therefore, it cannot be said that the Respondents 1 and 2 in lodging the complaint within the 3rd respondent or the 3rd respondent in registering the complaint as Cr.No.13 of 1992 acted ultra vires of the Act. The offence alleged to have been committed by the petitioner is not a statutory offence covered by the Act but an offence covered by the general public law statutes i.e. Indian Penal Code and Criminal Procedure Code.

Section 25 of the Act deals with the trial of offences for contravention of Sections 7 and 12 of the Act and the penalties to be imposed are laid down u/s 23 of the Act- The statutory offences contemplated under Sections 7 and 12 of the Act do not cover the offence punishable u/s 409 I.P.C. Section 7 of the Act mandates that no person shall set up, establish or use or continue or allowed to be continued, any place within the notified area for the purchase, sale, storage, weighment, curing, dressing or processing of any notified agricultural produce or products of livestock or for the purchase or sale of livestock without obtaining a licence granted to him by the Market Committee. If any person without obtaining a licence docs any of the things stated in sub-section (1) of Section 7 of the Act, then, he would be guilty of violating of the rule under sub-section (1) of Section 7 of the Act. Section 12 of the Act casts a duty on the Market Committee to levy fees on any-notified agricultural produce, livestock or products of livestock purchased or sold in the notified market area and if this duty cast on the Market Committee is breached, then, the Officer of the Market Committee who is responsible for such breach is liable to be penalised as provided u/s 23 of the Act. Section 25 of the Act specifically says that no offence punishable by the Act or any rule or bye-law made thereunder shall be tried by a Court inferior to that of a Magistrate of the First Class, and sub-rule (1) of Rule 46 of the Rules provides that no prosecution shall be instituted for breach of any of the rates without the previous sanction of the Market Committee. A reading of the provisions of Sections 7(1), 12(1), 23 and 25 of the Act and sub-rule (1) of Rule 46 of the Rules cumulatively makes it very clear that the prior sanction of the Market Committee is necessary only when officers of the Market Committee Committee are sought to be prosecuted for commission of statutory offences contemplated under sub-section (1) of Section 7 and sub-section (1) of Section 12 of the Act and not otherwise.

Alternatively, it cannot be said that the 1st respondent lacks power to order prosecution against an employee of the Agricultural Market Committee. It is true that under sub-rule (1) of Rule 46 of the Rules, no prosecution shall be instituted for breach of any of the rules without the previous sanction of the Market Committee. However, sub-rule (2) of Rule 46 provides that notwithstanding anything in sub-rule (1), the Director or any officer authorised by him, if he is satisfied that the previous sanction is refused on flimsy grounds or passing of the special orders under that sub-rule is unduly delayed, he may himself institute a prosecution for any offence under the rules. Therefore, it cannot be said that the Director of Marketing inherently lacks the power to order prosecution though his power to prosecute is conditioned under sub-rule (2) of Rule 46 of the rules. We do not find any necessity to delve furthermore into this aspect in view of the fact we are of the considered opinion that the offence attributed to the petitioner is not a statutory offence covered by the provisions of Sections 7 and 12 of the Act, but a general offence punishable u/s 409 of the Indian Penal Code.

Under sub-section (3) of Section 10 of the Act, the petitioner is a public servant within the meaning of Section 21, I.P.C. Sub-section (3) of Section 10 of the Act states that "the Chairman, Vice-Chairman and every officer or servant of a Market Committee shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code." Under sub-section (1) of Section 197 of the Code of Criminal Procedure, no Court shall take cognizance of any offence alleged to have been committed by a person, who, among others, is a public servant, except with the previous sanction of the appropriate Government. In order to satisfy this requirement and since the petitioner is a public servant within the meaning of Section 21 of the Indian Penal Code, the Government of Andhra Pradesh has accorded permission to prosecute the petitioner for the offence punishable u/s 409, I.P.C. as stated supra. Therefore, the petitioner cannot also assail the validity of the impugned action of the respondents, on the ground that no prior sanction of the appropriate Government was obtained before launching the prosecution against him.

Before concluding we may point out that this writ petition is also liable To be dismissed on the ground of suppression of material facts. As noted above, the petitioner had filed O.A.No.6725 of 1991 in the Andhra Pradesh Administrative Tribunal against the action of the 1st respondent authorising the Person-in-Charge to launch prosecution against the petitioner. That O.A. was disposed of by the Andhra Pradesh Administrative Tribunal with an observation that the respondents therein which include the Director of Marketing, the 1st respondent herein, are free to authorise any other officer other than then the Person-in-Charge of the Agricultural Market Committee. This order has become final. The petitioner has deliberately suppressed this fact in the affidavit. The Constitutional Courts quite often reiterated in number of pronouncements that a person who approaches the Court seeking remedy should come to the Court with clean hands and he should disclose all material and relevant facts and he cannot afford to withhold any information from the Court without incurring its displeasure and censure. The Supreme Court in G. Narayanaswamy Reddy v. State of Karnataka, AIR 1996 SC 1726 held that the Special Leave Petitions arc liable to be dismissed on the ground of suppression of material facts alone. In that case, the appellant-petitioner did not disclose the interim order granted by the High Court. It cannot be said that the fact of the petitioner filing O.A.No.6725 of 1991 in the Andhra Pradesh Administrative Tribunal and that the Tribunal disposing of the said application reserving liberty to the respondents therein to authorise any other officer other than the Person-in-Charge of the Agricultural Market Committee to launch prosecution against the petitioner is immaterial or irrelevant fact. That fact is relevant and material inasmuch as it will have a bearing on the decision to be taken in this writ petition also. Therefore, we hold that the writ petition is liable to be dismissed on the ground of suppression of material facts alone and also on the ground that the order of the Andhra Pradesh Administrative Tribunal has become final and the petitioner is bound by it.

In the result, the writ petition fails and accordingly the same is dismissed, however, with no order as to costs. The fee of Sri Posani Venkateswarlu is fixed at Rs.1200/- which shall be payable within two months from the date of presentation of the bill.