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1996 DIGILAW 143 (HP)

STATE OF HIM ACHAL PRADESH v. AJAY KUMAR

1996-08-19

R.L.KHURANA

body1996
JUDGMENT R.L. Khurana, J.: The respondent Ajay Kumar son of Kali Dass, a shopkeeper of village Jahu, District Hamirpur was convicted by the learned Judicial Magistrate 1st Class (1), Hamirpur on 7.3.1987 for the offence under Section 16(l)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act and sentenced to rigorous imprisonment for a period of six months and fine of Rs.1000/-. In default of payment of fine, the respondent was directed to undergo simple imprisonment for two months. 2. On an appeal having been carried before the learned Sessions Judge, Hamirpur, by the respondent, vide the impugned judgment dated 20.10.1989 the respondent was acquitted of the offence charged against him. Feeling aggrieved by the said acquittal of the respondent as recorded by the learned Sessions Judge, Hamirpur, the State has come up in appeal before this Court. 3. The prosecution story, in brief, is that six packets of Madhu mirch weighing 100 gms. each were purchased by the Food Inspector from the respondent on 20.4.1985 for the purpose of analysis. The Public Analyst, Kandaghat, on having analysed the sample sent to him, came to the conclusion that the same was mis-branded inasmuch as the name and business address of manufacturer mentioned on the packet was a misleading statement and that neither batch No. nor month and year of manufacture was found mentioned on the label of the packet. After obtaining the necessary sanction from the Local Health Authority, the necessary complaint under Section 16(l)(a)(i) read with Section 7 of the prevention of Food Adulteration Act was presented before the learned Judicial Magistrate 1st Class (1), Hamirpur for the prosecution of the respondent. 4. While assailing the impugned judgment of the learned Sessions Judge, Hamirpur, acquitting the respondent of the offence charged against him, the learned Assistant Advocate General has contended that the first appellate court has wrongly held the sanction granted by the Local Health Authority not to be a valid sanction under the law. It was contended that the sanction was valid and legal and that the case against the respondent stood proved beyond a reasonable doubt and he was rightly convicted and sentenced by the trial court. 5. It was contended that the sanction was valid and legal and that the case against the respondent stood proved beyond a reasonable doubt and he was rightly convicted and sentenced by the trial court. 5. The learned counsel for the respondent on the other hand, has contended that there has been a material illegality in the trial of the present case inasmuch as the respondent was never examined by the trial court under Section 313 of the Code of Criminal Procedure and as such, the trial stood vitiated. 6. A perusal of the record of the trial court shows that the prosecution concluded its evidence on 12.6.1986 and thereafter the case was adjourned for the evidence of the defence. The zimni order dated 12.6.1986 reads:- "12.6.86:- Present: Sh. K.S. Verma, F.I. for the State. Accused Ajay Kumar with counsel Shri A.C. Dogra. 4 PWs examined and the complainant closed the evidence. Now to come up for defence evidence on 10.7.1986." 7. The record thus establishes beyond doubt that the respondent never came to be examined under Section 313 of the Code of Criminal Procedure, as a result of which the circumstances appearing against him in the evidence of the prosecution never came to be put to him. Section 313 of the Code of Criminal Procedure reads as under- "(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court - (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case; Provided that in a summons-case, where that Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause. (b). (2) No oath shall be administered to the accused when he is examined under sub-Section (I). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (b). (2) No oath shall be administered to the accused when he is examined under sub-Section (I). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed." 8. Sub-Section (1) of Section 313 of the Code, quoted above, consists of two parts. While first part (a) gives a discretion to the Court to examine as accused at any stage of the proceedings, the second part (b) is mandatory which provides that the accused shall be examined after the witnesses for the prosecution have been examined and before he is called on for his defence. 9. While dealing with the scope of Section 342 of the code of Criminal Procedure, 1898 corresponding to Section 313, Code of Criminal Procedure, 1973, it has been held in Mastan Singh & Anr. v. The State (AIR 1953 Pepsu 125) that Section 342 of the Code of Criminal Procedure, 1898 is as much applicable to summons cases as to warrant cases. 10. The provisions contained in Section 313, Code of Criminal Procedure are based on the principle involving in the maxim audi alterm partem, namely, that no person should be condemned unheard and the accused should be heard not merely what is prima-facie proved against him but on every circumstance appearing in evidence against him. 11. The Honble Apex Court in Machander v. The State of Hyderabad (AIR 1955 SC 792) has observed that the Judges and the Magistrates must realise the importance of examination under Section 342, Code of Criminal Procedure, 1898. It is their duty to question the accused properly and fairly, bringing home to his mind in clear and simple language the exact cases he has to meet and each material point that is sought to be made against him and of affording him a chance to explain them if he can and so desires. 12. It is their duty to question the accused properly and fairly, bringing home to his mind in clear and simple language the exact cases he has to meet and each material point that is sought to be made against him and of affording him a chance to explain them if he can and so desires. 12. In Chet Ram v. The State (AIR 1954 HP 32) where the accused was convicted for offence under Section 228 of the Indian Penal Code, it was held that when no question was put to the accused in his examination under Section 342, Code of Criminal Procedure, 1898 in order to give him an opportunity of explaining the incriminating circumstances, the prosecution evidence regarding incriminating circumstances must be discarded. 13. In the present case, what to talk of putting the incriminating circumstances to the respondent, as stated above, he never came to be examined under! Section 313, Code of Criminal Procedure, 1973. As such, there has been a material illegality in the trial. 14. It was contended on behalf of the state-appellant that due to the failure of the trial court to examine the respondent under Section 313, Code of Criminal Procedure, the trial stood vitiated from the stage when the illegality was committed and, therefore, the case should be remanded for trial afresh from the stage of the examination of the respondent under Section 313, Code of Criminal Procedure. 15. It is significant to note that the offence in the present case pertains to the year 1985. It took about two years for the trial to be concluded before the trial court. Another two years were taken before the first appellate court for the disposal of the appeal. The present appeal is pending since the year 1990. The respondent is thus suffering the mental agony of his prosecution since 1985. The Honble Supreme Court in Machanders case (supra) declined to remand the case on similar ground. It was observed:- "We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty. Justice is not one-sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. It was observed:- "We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty. Justice is not one-sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to sec that persons accused of crime are not idenfinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detections of crime and entrusted with the administration of justice, limits must be placed on the lengths to which they may go. Except in clear cases of guilt, where the error is purely technical, the forces that are arrayed against the accused should no more be permitted in special appeal to repair the effects of their bungling than an accused should be permitted to repairs gaps in his defence which he could and ought to have made good in the lower courts. The scales of justice must be kept on an even balance whether for the accused or" against him, whether in favour of the State or not; and one broad rule must apply in all cases." 16. The error committed during the trial of the present case is not a mere technicality. Therefore, relying upon the ratio laid down by the Honble Apex Court, this Court declines to remand the case for disposal afresh. 17. As a result, the present appeal fails and the same is accordingly dismissed.