Misconceived cognizance order of Chief Judicial Magistrate, Bhagalpur quashed for being "contingent prosecution"

In Radhika Devi & Ors. vs. The State of Bihar & Ors (2014), by his order dated November 10, 2014 Justice Ashutosh Kumar of Patna High Court quashed the order dated March 24, 2011 passed in G.R. No. 82 of 2011, corresponding to a Pirpainti Police Station Case of 2011 by the Chief Judicial Magistrate, Bhagalpur, by which he had taken cognizance against the petitioners under section 7 of the Essential Commodities Act, 1955. The proceedings pending in the court of the Sub Divisional Judicial Magistrate, Bhagalpur was stayed by the order of Justice Shivaji Pandey on August 17, 2012. The case was filed in the High Court on May 10, 2011.

Prior to passing his final order, Justice Kumar recorded in his order dated October 20, 2014 that that the petitioners are the licensed dealers in fertilizer. On the report of Sudhakar Pandey, Block Agriculture Officer, Pirpainti, Bhagalpur, the Opposite Party No. 2 had lodged the First Information Report. The content of the First Information Report was that Opposite Party/Respondent No. 2, on enquiry had expressed suspicion that there is a possibility of the petitioners selling the fertilizer in black market. On such unfounded presumption, Sanjay Kumar, D.C.L.R., Kahalgoan, Bhagalpur, the Opposite Party/Respondent No. 3 launched the prosecution. The Court was "inclined to hear Opposite Party No. 3 as to how and under what circumstances he chose to file the First Information Report against the petitioners on such flimsy ground mainly the presumption of black marketing of fertilizer at the hands of the petitioners" but nobody appeared on behalf of Opposite Party No. 3 although the record of the case revealed that "some advocate had appeared on behalf of Opposite Party No. 3 and had sought adjournment."

The petitioner's counsel had submitted that "such contingent prosecution is unheard of in criminal jurisprudence. The order records: "The counter affidavit on behalf of the opposite party no. 2 merely states that the F.I.R. was lodged at the instance of superior office of the administration." The order concluded: "Considering the above facts, the order taking cognizance dated 24.03.2011 in connection with Pirpainti P.S. Case No. 6/2011 (G.R. No. 82/2011) under Section 7 of the E.C. Act appears to be misconceived. The same is quashed." It is apparent that superior officer was not taken to task for his act of omission and commission 

The other petitioners from Pirpainti, Bhagalpur were: Anil Kumar, Ram Krishna Khetan, Ashok Kumar Kataruka @ Ashok Kumar and Rabindra Kumar. The other three respondents were: Sudhakar Pandey, Block Agriculture Officer, Pirpainti, Bhagalpur and Sanjay Kumar, D.C.L.R., Kahalgoan, Bhagalpur.