Full Judgment
The writ petition also contains certain prayers for interim protection such as direction upon the second respondent herein and an injunction against the respondents in support of the above prayers and stay of the above police case no. 95 dated 25 May 2009. The prayers seeking other writs such as prohibition and certiorari in the writ petition need not be mentioned in detail.
When the writ petition was heard on more than one occasion none, in fact, appeared at the hearing to contest the writ proceedings though the respondents concerned used an affidavit-in-opposition for the purpose. Mr. Ramananda Agarwal, learned Advocate, however, made his submissions in Court in detail in support of the writ petition and he also submitted a written note on his submissions made by him on behalf of the petitioner which is on record. The case of the writ petitioner proceeds on the basis that the FIR lodged against him under Section 409 of the Indian Penal Code was lodged mechanically on the basis of a letter dated 22 May 2009 by Sub-Divisional Controller(Food & Supplies), Alipore Sadar, 24-Parganas(South) alleging that on the basis of an inspection made at the petitioners shop, the Sub- Divisional Controller who made the inspection with an Area Inspector, Budge Budge 1 found certain irregularities which were mentioned in the inspection reportand the inspection was made in the presence of the M.R.Dealer concerned, namely the petitioner and his representatives.
The FIR was, in fact, lodged by the Sub-Divisional Controller, namely the second respondent herein in the Budge Budge Police Station on the date of inspection, namely 22 May 2009 itself, as stated above, on the basis of the said report. The above case under the provisions of Section 409 of the Indian Penal Code, I believe, is still pending.
The primary contention of Mr. Agarwal was that Section 409 of Indian Penal Code could be invoked only when a criminal breach of trust is committed in respect of a property or properties by an agent, like the petitioner herein, who was entrusted with such property or properties. Similarly, a proceedings under Section 409 of Indian Penal Code would only lie if an agent is alleged to have committed such criminal breach of trust in respect of a property. But since in the instant case there was not even any allegation either in the said inspection report or in the said letter both dated 22 May 2009 of any criminal breach of trust against the petitioner in respect of property or properties in question with which he was entrusted, no FIR could be lodged against the petitioner as the second respondent did in the first place.
If the FIR is found to have been lodged wrongly, as the essential ingredient of constituting the crime, namely criminal breach of trust was and is absent against the petitioner, by the second respondent, no case under Section 409 of the Indian Penal Code could also be initiated against him as was done wrongly by the second respondent or rather the concerned respondents. Similarly, on the same analogy, no order of suspension-cum-show-cause notice could also be issued against the petitioner, as was, in fact, issued against him on 25 May 2009 putting the petitioner under suspension because of wrong initiation of criminal proceedings against the petitioner in the first place as above.
It is indeed true that the concerned respondents did not mention in the said first information report or the said letter dated 22 May 2009 that the petitioner committed criminal breach of trust under Section 409 of the Indian Penal Code, nevertheless the concerned respondents initiated the said criminal proceedings against the petitioner on the basis of the said inspection report and the said FIR which, as aforesaid, is still pending.
However, for the sake of adjudication of the present writ proceedings, I have considered the statements made in the writ petition, and though none ever appeared on behalf of the respondents to contest this proceedings at the hearing, I have considered the affidavit of the respondents used by them in opposition to the writ petition in detail.
I have also considered the prayer or the prayers of the writ petitioner for interim protection with due earnestness. However, having considered the case of the writ petitioner as made out in the writ petition and the stand taken by the respondents in its affidavit-in-opposition and the primary contention of Mr. Agarwal that since no criminal breach of trust was alleged against the petitioner the proceedings could not be initiated against the petitioner as was wrongly done by the respondents, I am of the opinion that at this stage the proceedings initiated under Section 409 of the Indian Penal Code should not be quashed as the petitioner can very well approach the Criminal Court concerned where the proceedings is still pending against him and ask the Court to adjudicate the question or the questions raised in this writ petition as to the maintainability of the criminal proceedings against him in the first place. Whether the petitioner has committed any breach of trust is definitely a question of fact but whether the allegations of the concerned respondents against the petitioner which are the subject-matter of the pending criminal proceedings against him constitute a case of criminal breach of trust on the part of the petitioner is a question of law and, in my opinion, the concerned Criminal Court has both the jurisdiction and competence to decide the said question or questions without any difficulty.
The petitioner, therefore, is entitled to approach the Criminal Court where the case against him is pending for its expeditious disposal without any delay. The respondents are also under an obligation to ensure that the criminal proceedings initiated against the petitioner should be disposed of as quickly as possible and, as such, should approach the Criminal Court for the disposal of the criminal proceedings initiated by them against the petitioner.
Thus, the respondents concerned are directed to approach the Criminal Court where the proceedings under Section 409 of the Indian Penal Code is pending against the petitioner for its expeditious disposal within a period of six months from the date of communication of this order. If no steps are taken by the respondents as directed and if the proceedings is not disposed of as above, the proceedings will stand quashed without any further order of any Court of law.
However, since the proceedings initiated against the petitioner that the issuance of show cause notice dated 25 May 2009 resulted in an order of cancellation of the license of the petitioner in question and since the petitioner was not present before the authority on two occasions, the authority concerned is directed to decide the proceedings afresh giving the petitioner an opportunity of reasonable hearing within a period of 30 days from the date of communication of this order.
It is made clear that since the decision on the earlier occasion was taken by Sub-Divisional Controller( Food and Supplies) on the basis of this direction, the District Controller( Food and Supplies) will consider the merits of the proceedings and decide the case on merits independently in accordance with law without in any way being influenced by the earlier order of cancellation of license of the Sub-Divisional Controller dated 20 August 2009.
Mr. Suman Ghosh, learned Counsel appearing on behalf of the State respondents, however, points out that the order was passed ex parte by the Sub-Divisional Controller on 20 August 2009 as the petitioner failed to appear before the authority on two occasions and, as such, the Sub- Divisional Controller had no option, but to dispose of the case and the said order of cancellation of the license of the petitioner was made. I am, at this stage, not minded to embark upon an enquiry whether the petitioner failed to appear before the authority deliberately and, as a result, the authority had no option, but to pass the order on 20 August 2009 as it did.
Since I have directed the respondents to approach the Criminal Court, where the proceedings under Section 409 of the Indian Penal Code is pending for its expeditious disposal within a period of six months, meaning thereby that the disposal itself will be made within a period of six months from the date of communication of this order, I set aside the order passed by the Sub-divisional Controller, Food and Supplies dated 20 August 2009 and direct the District Controller, Food and Supplies to decide the proceedings initiated by the authority with the issuance of the said show cause notice dated 25 May 2009 afresh independently as above. Since I have not considered the merits of the allegations against the petitioner in my judgment and since I have not adjudicated the case against the petitioner on merits, both the Criminal Court and the disciplinary authority concerned would be free to decide the respective cases before them on the respective merits of both the cases independently in accordance with law.
Needless to mention, the District Controller, Food and Supplies will give reasons in support of this order. However, if the District Controller decides the case in favor of the petitioner, then and, in that event, elaborate reasons in support of such order need not be made. The writ petition is disposed of as above.
There will be no order as to costs.
Urgent Xerox certified copy of this order, if applied for, be given expeditiously.