P.K. Jain, J.@mdashBy the present writ petition under Article 226 of the Constitution of India, the Petitioners have come up with two-fold prayers: (i) to quash the first information report dated 22.4.1997 appended as Annexure-1 to the writ petition in Case Crime No. 305 of 1997, under Sections 17 (i) and (iii) of the U. P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 (hereinafter called as the Act) and Section 3/7 of the Essential Commodities Act, P.S. Chauri Chaura, district Gorakhpur and (ii) to issue a writ or direction in the nature of mandamus commanding the Respondent No. 3 not to arrest the Petitioners in pursuance to the aforesaid first information report and also not to investigate the case on the basis of the said report.
2. M/s. Saraya Sugar Mills Limited, a Company incorporated under the Companies Act carries on business of manufacturing sugar by "Vacuum Pan Process" in its sugar mills situated at Sardarnagar, district Gorakhpur. Petitioner No. 1 Satyajit Singh Majithia is its Managing Director, Sri Girijit Singh Majithia, Petitioner No. 2 is its Senior Managing Director, Petitioner No. 3 Sri V. K. Verma is its ex-occupier, Petitioner No. 4 Sri S. K. Gupta is its present occupier and Petitioner No. 5 Dr. S. K. Bhaskaran is its Vice-President. According to the allegations made in the first information report , during the crushing year 1995-96 the said Company purchased sugarcane worth Rs. 7,25,56,707.92 paise from Sahkari Ganna Vikas Samiti Limited, Sardarnagar, Gorakhpur. Till 19.4.97, the Company paid only Rs. 6 crore and 39 lacs to the said Sahkari Ganna Vikas Samiti. A sum of Rs. 86,58,707.92 paise was out-standing for the crushing year 1995-96 which ended on 1.6.96. In view of Clause 3 (A) of the Sugarcane (Control) Order, 1966, the Mill was required to make payment of the sugarcane purchased by it within 15 days but on 15.6.96, a sum of Rs. 5,03,58,707.92 paise was outstanding and despite order dated 25.6.96 passed by the Sugarcane Commissioner, Lucknow, the entire payment was not made and still a sum of Rs. 86,58,707.92 paise was outstanding. During the crushing year 1996-97, sugarcane worth Rs. 5,14,41,460.00 was purchased by the Company but no payment was made by the Company. Thus, non-payment of the purchase of price by the Company within the stipulated period under Sub-clause 3(4) of the Sugarcane (Control) Order, 1966 is clear violation of the provisions of the said Sub-clause 3 (A) and of Section 17 (i) and (iii) of the Act which is punishable u/s 3/7 of the Essential Commodities Act, 1955. The Company is also guilty of non-compliance of the order dated 25.6.96 of the Sugarcane Commissioner and has thus violated condition No. 4 of the licence issued to it under the U. P. Vacuum and Sugar Factories Licensing Order, 1969 which is also punishable u/s 3/7 of the Essential Commodities Act.
3. The case of the Petitioners is that the supply and purchase of the sugarcane is governed by U. P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and the Union of India (the Central Government) under the provisions of the Sugarcane (Control) Order, 1966 (Central) is authorised to fix the minimum price of the sugarcane payable by the Sugar Mill to the Cane-growers Societies which is known as statutory minimum cane price. During the crushing years 1995-96 and 1996-97, the Central Government fixed statutory minimum cane price at Rs. 47,36 and Rs. 49.32 paise respectively. There was no agreement between the Sugar Mill and the canegrower societies for payment of the agreed price and the State Government has not declared any additional cane price for the aforesaid crushing years. The Sugar Mill in question has paid the entire statutory minimum cane price fixed by the Central Government for the years 1995-96 and 1996-97. However, a recovery certificate dated 22.4.97 was issued by the Cane Commissioner, U. P. Lucknow validity of which was challenged by the Petitioners by filing a Writ Petition No. 1661 (M/B) of 1997, and in the aforesaid writ petition, Lucknow Bench of this Court after hearing the parties directed M/s. Saraya Sugar Mills to deposit a sum of Rs. 3.20 crore and furnish a bank guarantee for half of the amount of difference in price fixed by the Central Government and the State advised price. The Petitioners complied with the aforesaid order of the Lucknow Bench of this Court passed on 12.5.97 within the time granted by the Court. The case of the Petitioners appears to be that since the minimum statutory price fixed by the Central Government u/s 3(A) of the Sugarcane (Control) Order, 1966 (Central) has been paid by the Petitioners and since there was no agreed cane price between the Sugar Mill and Cane-growers Societies and the State Government has not declared any additional cane price for the said crushing years, no amount remains due to be paid by the Petitioners and consequently, no offence is made out. The Petitioners'' further claim that in view of the provisions contained in Section 23 of the Act read with Rules, 120 and 121 framed under the said Act, Respondent No. 2 has no authority to lodge the first information report . It is also the case of the Petitioners that in view of the provisions contained in Sections 22A and 22B of the Act the police has no authority to investigate the case.
4. One Sri D. S. Tiwari, Sub-Inspector as well as the Investigating Officer representing Respondent No. 3 filed an affidavit wherein it is stated that u/s 17 of the Act as well as under Order III, Rule 3 of the Sugarcane (Control) Order, 1966, the Petitioners were liable for payment of price of sugarcane purchased by them from the cane-growers within 14 days from the date of delivery of the sugarcane. In the present case, there is violation of this condition of the Act and Sugarcane (Control) Order, 1966. That under Rules 120 and 121 of the Rules framed under the Act investigation was not barred, only cognizance by the Court was barred and that prima facie offence u/s 406, I.P.C. was also made out. It is also stated that inspite of the agreement between the parties and inspite of the provisions contained in the Act as well as Sugarcane (Control) Order, 1966, neither the sugarcane price was paid to the cane-growers within the time limit provided under the Act as well as the Sugarcane (Control) Order, 1966, nor the interest was paid. Hence, prima facie offence was made out.
5. Respondent No. 2, who is Cane Development Inspector and who had lodged the first information report in his counter-affidavit stated that the Sugarcane (Control) Order, 1966, is issued by the Central Government in exercise of powers conferred by Section 3 of the Essential Commodities Act and simultaneously the U. P. Government has issued U. P. Vacuum Pan Sugar Factories Licensing Order, 1969. Contraventions of the provisions of these Control Orders and conditions of the licence are punishable under the Essential Commodities Act, the Petitioners admittedly, are manufacturing sugar by Vacuum Pan process and as such the Petitioners'' Sugar Mill or Factory is governed by the provisions of U. P. Vacuum Pan Sugar Factories Licensing Order, 1969. That the provisions of Rule 120 of the Rules framed under the Act are applicable to launching the prosecution in the Court and not to initiation of the investigation by lodging of the first information report ; that Respondent No. 2 has been appointed as Cane Development Inspector in view of the provisions of Section 2(jii) of the Act and has been authorised to lodge the first information report ; that the Factory issued a "parchi" to the cane-growers at the time of purchase of the sugarcane and in the said ''parchi'' the price is shown at the rate of Rs. 70 per quintal and thus there was an agreement to make payment at the rate of Rs. 70 per quintal. Section 10A of the Essential Commodities Act makes every offence punishable under the Act as cognizable and therefore, the police is not barred from investigating the case.
6. We have heard Sri A. D. Giri, learned Counsel appearing on behalf of the Petitioners and Sri Prem Prakash, learned Counsel appearing on behalf of Respondent No. 2 as also the learned A. G. A. appearing for Respondent Nos. 1 and 2.
7. The main thrust of the argument on behalf of the Petitioners appears to be that the Central Government under Clause 3 of the Sugarcane (Control) Order, 1966, is authorised to fix statutory minimum cane price, which for the crushing years 1995-96 and 1996-97 was fixed at Rs. 47.36 and Rs. 49.32 paise respectively. There was no agreed price between the parties and therefore, the Petitioners were liable to pay the statutory minimum cane price which they have already paid and, therefore, no amount towards the purchase price of the sugarcane for the relevant period remains to be paid and thus there is no violation of the provisions of the Act as well as any of the Control Orders referred to above. Besides this, a recovery certificate dated 22.4.97 was issued by the Cane Commissioner, U. P. Lucknow which was challenged by the Petitioners in Writ Petition No. 1661 of 1997, and the Lucknow Bench of this Court passed a conditional stay order which condition has been complied with and, therefore, the question whether there was any agreement for payment of the purchased sugarcane at the rate of State Advised price is subjudice and, therefore, the Petitioners cannot be prosecuted for violation of the provisions of the Act or the Control Orders as aforesaid and lastly that in view of the various provisions contained in the Act, Rules made thereunder as also the Control Orders, the Respondent No. 2 has no jurisdiction to launch the prosecution and the Respondent No. 3 has no jurisdiction to investigate the case. The submission on behalf of the Respondents is that in view of the ''parchi'' issued to the cane-growers at the time of payment of the sugarcane, the purchased price agreed was Rs. 70 per quintal and, therefore, the Petitioners were bound to pay the price of the sugarcane purchased at the said rate which they have failed to pay and have thus violated the various provisions of the Act as also the Control Orders. They have also violated condition No. 4 of the licence granted to them under the U. P. Vacuum Pan Sugar Factories Licensing Order, 1969 and that in view of the averments made in the counter-affidavit the Respondent No. 2 is authorised to lodge the first information report and Respondent No. 3 is authorised to investigate the case.
8. Before we proceed to deal with the rival contentions, it is necessary to have a look at various provisions under the Act as well as various Control Orders referred to above.
Section 22 of the Act provides for penalties and it reads as follows :
22. Penalties.--If any person contravenes any of the provisions of this Act or any rule or of order made thereunder, he shall be liable to imprisonment up to six months or to a fine not exceeding rupees five thousand or both and in the case of continuing contravention to a further fine not exceeding one thousand for each day during which the contravention continues.
Section 17 of the Act reads as under :
17. Payment of cane price.--(1) The Occupier of a factory shall make such provision for speedy payment of the price of cane purchased by him as may be prescribed.
(2) Upon the delivery of cane the occupier of a factory shall be liable to pay immediately the price of the cane so supplied, together with all other sums connected therewith.
(3) Where the person liable under Sub-section (2) is in default in making the payment of the price for a period exceeding fifteen days from the date of delivering, he shall also pay interest at a rate of 7-1/2 per cent per annum from the said date of delivering, but the Cane Commissioner may, in any case, direct, with the approval of the State Government, that no interest shall be paid or be paid at such reduced rate as he may fix :
Provided that in relation to default in payment of price of cane purchased after the commencement of this proviso, for the figure ''7-1/2'' the ''figure 12'' shall be deemed substituted.
(4) The Cane Commissioner shall forward to the Collector a certificate under his signature specifying the amount of arrears on account of the price of cane plus interest, if any, due from the occupier and the Collector, in receipt of such certificate, shall proceed to recover from such occupier the amount specified therein as if it were an arrear of land revenue.
(5) (a) Without prejudice to the provisions of the foregoing Sub-sections, where the owner or any other person having control over the affairs of the factory or any other person competent in that behalf enters into an agreement with a bank under which the bank agrees to give advance to him on the security of sugar produced or to be produced in the factory, the said owner or other person shall provide in such agreement that a (percentage determined by such authority and in such manner as may be prescribed) of the total amount of advance shall be set apart and be available only for re-payment of cane-growers or their co-operative societies on account of the price of sugarcane purchased or to be purchased for the factory during the current crushing season from those canegrowers or from or through those societies, and interest thereon and, such societies, commission in respect thereof.
(b) Every such owner or other person as aforesaid shall send a copy of every such agreement to the Collector within a week from the date on which it is entered into.
Sections 22A and 23 of the Act reads as under :
22A. Powers of certain officers to investigate into offences punishable under this Act.--(1) An Inspector specially empowered in relation to cases generally or to any class of cases by the State Government, by notification, in that behalf may investigate into any offence punishable under this Act committed within the limits of the area in which such officer exercise jurisdiction.
(2) Any such officer may exercise the same powers in respect of such investigation as an officer-in-charge of a police station may exercise in a cognizable case under the provisions of Chapter XII of the Code of Criminal Procedure, 1973.
(2) On the application of a person accused of an offence under this Act, the Cane Commissioner or the District Magistrate with the previous concurrence of the Cane Commissioner may at any stage compound such offence by levying a composition fee not exceeding the fine which could be imposed for such offence.
(3) No Court inferior to that of a Magistrate of the Second Class shall try any offence against this Act or any order or rule made thereunder.
Clauses 3 (1) and 3 (A) of the Sugarcane (Control) Order, 1966 read as follows :
3. Minimum price of Sugarcane payable by producer of sugar.--(1) The Central Government may, after consultation with such authorities, bodies or associations as it may deem fit, by notification in the official Gazette, from time to time, fix the minimum price of sugarcane to be paid by producers of sugar or their agents for the sugarcane by them, having regard to--
(a) the cost of production of sugarcane ;
(b) the return to the grower from alternative crops and the general trend of prices of agricultural commodities ;
(c) the availability of sugar to the consumer at a fair price ;
(d) the price at which sugar produced from sugarcane is sold by producers of sugar ; and
(e) the recovery of sugar from sugarcane ;
Provided that the Central Government or, with the approval of the Central Government, the State Government, may, in such circumstances and subject to such conditions as specified in Clause 3A, allow a suitable rebate in the price so fixed.
Explanation.--(1) Different prices may be fixed for different areas or different qualities or varieties of sugarcane.
(2) ....
(3) ....
(3A) Where a producer of sugar or his agent fails to make payment for the sugarcane purchased within 14 days of the date of delivery, he shall pay interest on the amount due at the rate of 15 per cent per annum for the period of such delay beyond 14 days. Where payment of interest on delayed payment is made to a cane-growers'' society, the society shall pass on the interest to the cane-growers concerned after deducting administrative charges, if any, permitted by the rules of the said society.
Condition No. 4 of the U. P. Vacuum Pan Sugar Factories Licensing Order, 1969 reads as under :
(4). The licensee shall abide by all the laws and rules for the time being in force in the State for regulating the manufacture of sugar by vacuum pan process and the supply and purchase of sugarcane, and such directions as may be issued, from time to time, by the State Government and the Cane Commissioner, Uttar Pradesh.
Section 8 of the said Control Order, 1969 reads as under :
8. Penalties.--If a person contravenes any of the provisions of this order or conditions of the licence he shall be punishable in accordance with the provisions of the Essential Commodities Act, 1955.
9. The first submission of Sri Giri, learned Counsel appearing for the Petitioners is that the Respondents were pressing for payment of the price of the sugarcane at the rate of Rs. 70 per quintal for the crushing year 1995-96 which was state advised price whereas the State after coming into force of the Sugarcane (Control) Order of 1966, which is the Central Government only which can fix minimum price of the sugarcane which the Petitioners were bound to pay and which they have already paid in accordance with the directions of the High Court given in Writ Petition No. 1661 (M/B) of 1997, pending in the Lucknow Bench of this Court. The submission on behalf of the Respondents is that while purchasing the sugarcane, the Petitioners had issued ''parchi'' to the cane-growers at the time of weighment of the sugarcane and the sale price therein was Rs. 70 per quintal. Under Rule 98A, the payment of the cane-growers is to be made at the rate mentioned in the counterfoil of the ''parchi''. Besides this, the Petitioners had submitted the statements to the District Cane Development Officer, Gorakhpur under Rules 104 and 105 of the Rules wherein also the rate of the purchased sugarcane was shown Rs. 70 per quintal. In support of these contentions, the Respondents have referred to Annexures-CA1 and CA2 to the counter-affidavit. Thus, there appears to be controversy between the parties as to what was the price payable by the Petitioners with regard to the sugarcane purchased by them. When a demand in excess of the minimum price fixed by the Central Government for the crushing years 1995-96 and 1996-97 was made by the Respondents, the Petitioners filed Writ Petition No. 1661 (M/B) of 1997, referred to above in the Lucknow Bench of this Court wherein orders dated 12.5.97 and 26.5.97 were passed by a Division Bench of the Court. There also the question raised was as to what price of the sugarcane the Petitioners were supposed to pay to the cane-growers who supplied sugarcane to the Sugar Factory through their co-operative societies. It was observed by the Court that On the legal proposition, there is no dispute between the parties that under the statutory provisions it is the Central Government, which is authorised to fix the minimum price of the sugarcane. Higher price can be fixed with the agreement of the parties. There is also a form prescribed under the Sugarcane Supply and Purchase Rules, 1954. Form C is prescribed for such agreements of the parties, if any, between the cane-growers and factory owners. The dispute on the factual aspect is that according to the Petitioners, there is no agreement between the Petitioners and the cane-growers for supply of sugarcane on State Advised price or on any other agreed rate. On behalf of the opposite parties, it is submitted that there is an agreement though not in the form as prescribed. Certain documents have been placed on the record, on the basis of which it is submitted that inference of an agreement between the parties may be clearly drawn." The Court further observed that "at this stage, prima facie, it is difficult to record any finding that there was any clear admission on the part of the Petitioners for payment of price at the rate of Rs. 70, namely, the State Advised price which may have been agreed between the parties.
10. Another dispute with regard to the arrears for the crushing years 1995-96 was that no recovery proceedings could be initiated against the Petitioners in view of the fact that the Petitioners Company has been declared as sick Unit u/s 17 (3) of the Sick Industrial Companies (Special Provisions) Act, 1985 and the operating agency has been appointed and the scheme is under preparation. In such a situation, no recovery could be made unless the consent of the Board for such recovery is taken. Considering the rival contentions of the parties, the Court had directed the Petitioners to make payment at the rate fixed by the Central Government and with regard to the difference between the minimum price fixed by the Central Government and the State Advised price, which the Respondents claimed to be agreed price, the Petitioners were directed to furnish bank guarantee to the extent of half of the amount within a period of 2 weeks. The Court had further ordered that the operation of Annexures-1 and 2 shall remain stayed subject to the conditions enumerated in the order and the bank accounts if seized shall be released. The Petitioners have made averments that they have complied with the orders dated 12.5.97 and 26.5.97 passed by the Court which are not denied or controverted and since the question as to what price the Petitioners were liable to pay to the cane-growers is still sub-judice, the question of commission of offence or violation of the directions given by the Cane Commissioner does not arise. The operation of such directions has been stayed by the Court by its order dated 12.5.97 subject to the conditions imposed by the Court which have already been complied with.
11. The legal position is that after enforcement of the Sugarcane (Control) Order, 1966, it is the Central Government which can regulate the price of the sugarcane purchased by the Sugar Factory for a particular crushing year. The minimum price is fixed by the Central Government u/s 3(A) of the said Sugarcane Control Order. The question whether the purchasers were bound to pay the State Advised price which is higher than the minimum price fixed by the Central Government came up for consideration before the Supreme Court in
On a perusal of the relevant provisions of the Sugarcane (Control) Order, 1966, particularly clauses 3 and 5A therein, it is clear that the total price of sugarcane fixed thereunder is the aggregate of the minimum cane price fixed under Clause 3 and the additional cane price fixed under Clause 5A. Thus, unless there be an agreement between the grower and the purchaser for purchase of the sugarcane at a higher price, the obligation of the purchaser is to pay to the grower only the aggregate of the amounts fixed under clauses 3 and 5A. In other words, under the statute there is no liability of the purchaser to pay the grower any amount in excess of this aggregate amount. Thus, without any contractual or statutory basis fixing the sale price of sugarcane at an amount higher than the minimum cane price fixed under Clause 3 and the additional cane price fixed under Clause 5A, any sum paid by the purchaser to the grower as advance prior to fixation of the additional cane price under Clause 5A cannot form part of the price of cane sugar.
12. Similar view was taken by a Division Bench of this Court in West U. P. Sugar Mills Association and Ors. v. State of U. P. and Ors. (1997) 1 UPLBEC 540, the Court has held that In our opinion, apart from any agreed price, the only price which the Sugar Mills can be compelled to pay to the growers is the minimum price fixed under Clause 3 (1) of the Sugarcane (Control) Order, 1966 and the additional cane price under Clause 5A of the said order. Of course, it is open to the parties to enter into any agreement to pay a higher price but such agreement should be a voluntary transaction between two or more parties and the State cannot resort to any compulsion in this connection. If compulsion is made, then by no stretch of imagination can the price be regarded as an agreed price. There is no agreement whether written or oral regarding this state advised cane price between the sugar factories and the cane-growers, and hence we cannot call it an agreed price.
13. In the case in hand before us, there is no dispute that in view of the directions given by the Bench before which Writ Petition No. 1661 (M/B) of 1997, came up for hearing, the minimum price fixed by the Central Government has already been paid by the Petitioners for the year 1996-97 and as regards arrears for the year 1995-96, the question of liability of the Petitioners on account of the unit being declared sick unit is subjudice before the Court. The question whether issuing of parchi showing purchase price at the rate of Rs. 70 per quintal and submission of the accounts to the Cane Commissioner showing purchase price at the rate of Rs. 70 per quintal would amount to an agreement to pay the cane-growers sugarcane price at the above rate is also subjudice in the aforesaid writ petition. The Petitioners bona fidely and vehemently contested the claim of the cane-growers to pay the price of the sugarcane at a rate higher than the minimum price fixed by the Central Government under Clause 3 and Clause 5A of the Control Order. In these circumstances, in our view, the Petitioners should not have been proceeded against under the criminal provisions of the Act and the Sugarcane (Control) Order, 1966. As already pointed out above, the directions given by the Sugarcane Commissioner in regard to the payment of higher price were bona fidely challenged by the Petitioners and operation of the same has been stayed by order dated 12.5.97 passed by the Lucknow Bench of this Court in Writ Petition No. 1661 (M/B) of 1997. Therefore, in our view, till the questions in the aforesaid writ petition are finally disposed of, the Petitioners cannot be prima facie made liable for prosecution for violation of the provisions of the Act, Control Order and the directions/orders issued by the Sugarcane Commissioner.
14. The question as to whether there was any agreement between the parties to pay the price of the sugarcane purchased by the Petitioners at the rate shown in the parchi issued to the cane-growers at the time of weighment is under consideration of the Court in Writ Petition No. 1661 (M/B) of 1997. Therefore, it is not necessary to decide this question in this writ petition.
15. The next submission of Sri Giri is that in view of the provisions of Section 23 of the Act and Rules 120 and 121 of the Rules framed under the Act, Respondent No. 2 has no authority to lodge first information report. We have already reproduced Section 23 (1) of the Act. Rules 120 and 121 of the Rules read as follows :
120. No prosecution shall be instituted under these rules unless the person complained against has been given an opportunity by the Cane Commissioner or the District Magistrate to show cause why he should not be prosecuted.
121. No Court shall take cognizance of any offence under the Act or these rules except upon complaint made within one year of the date on which the offence is alleged to have been committed.
16. The submission of Sri Giri is that Respondent No. 2 is Cane Development Inspector (Purchase) who could not of his own institute prosecution in view of the provisions contained in Section 23 (1) of the Act. Bare perusal of provisions of Rule 120 shows that the prosecution can be instituted for contravening any of the provisions of the Act or Rule/Rules and Order/Orders made thereunder by the Cane Commissioner or the District Magistrate or by a person under authority from the Cane Commissioner or the District Magistrate. There is nothing before us showing that either the Cane Commissioner or the District Magistrate had authorised Respondent No. 2 to institute criminal proceedings against the Petitioners. Respondent No. 2 in his counter-affidavit has simply stated that he was appointed as Inspector u/s 11 of the Act and he was authorised to perform duties and exercise powers conferred or imposed upon the Inspectors by or under the Act. He has drawn our attention to Rule 20 which enumerates the duties and powers of the Inspector appointed u/s 11 of the Act. Clause (a) of this Rule 20 provides that every Inspector may exercise such other powers as may be necessary for carrying out the purpose of the Act and these Rules. The question is whether in view of this Sub-rule (a), the Inspector is authorised to institute prosecution or lodge first information report. Our answer to such question would be ''no'' because such powers have been specifically vested in the Cane Commissioner and the District Magistrate and they can delegate their powers in this regard to any other authority. The Cane Inspector shall, therefore, ordinarily be not authorised to institute a complaint or a prosecution against any person unless he has been so authorised by the Cane Commissioner or the District Magistrate, as the case may be. There is no case of the Respondent No. 2 that such powers were delegated to him either by the Cane Commissioner or by the District Magistrate, Gorakhpur. Therefore, he was incompetent to lodge the first information report. Rule 120 further provides that prosecution against a person cannot be instituted unless the Cane Commissioner or the District Magistrate, as the case may be, has afforded him an opportunity to show cause why he should not be prosecuted. There is no case of the Respondents that such an opportunity was afforded to the Petitioners by the District Magistrate or the Cane Commissioner. The submission on behalf of Respondent No. 2 is that lodging of the F.I.R. and investigation on such report does not amount to institution of prosecution. His contention is that prosecution is instituted by filing a complaint in the Court or submission of the charge-sheet on completion of the investigation. We do not agree with this contention on behalf of Respondent No. 2. After the first information report of a cognizable offence is lodged u/s 154, Cr. P.C. Police Officer Incharge of the police station is authorised to investigate the case and he has authority to arrest the accused without order from a Magistrate. Thus with the lodging of the F.I.R. with regard to a cognizable offence, the criminal proceedings are moved and the machinery is put into motion against the accused and thus, in our view, would amount to institution of prosecution. As no opportunity of showing cause was afforded as provided under Rule 120 to the Petitioners. The institution of the prosecution against the Petitioners cannot be sustained on this ground alone.
17. As regards the question of bar of limitation as contained in Rule 121, that relates to taking of the cognizance by the Court. The question of taking cognizance has not yet arisen. Such an objection can be raised only when the prosecution is launched in Court having competent jurisdiction and not at this preliminary stage.
18. We do not consider it necessary to deal with other submissions made on behalf of parties.
19. For the aforementioned reasons, we are of the view that institution of the prosecution against the Petitioners is premature and is in violation of the provisions of the Act and Rules. The writ petition therefore, deserves to be allowed and the same is hereby allowed. The first information report as contained in Annexure-1 with regard to Crime Case No. 305 of 1997 under Sections 17 (i) and (iii) of the U. P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 as well as Section 3/7 of the Essential Commodities Act, P. S. Chauri Chaura, district Gorakhpur and the investigation initiated on the basis of such report are hereby quashed.
