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1998 DIGILAW 743 (RAJ)

Shanti Lal v. State of Rajasthan

1998-07-04

AMRESH KUMAR SINGH

body1998
Honble SINGH, J.–Heard the learned counsel for the petitioner and the learned Public Prosecutor and perused the original record of the case. (2). By this petition filed under Section 482 Cr.P.C. the petitioners have prayed that the proceedings of criminal original case No. 80/87 u/s 29(1) of the Insecticides Act, 1968, pending in the Court of Munsif and Judicial Magistrate, Pali be quashed as the order dated 22nd November, 1985, whereby the learned Judicial Magistrate entertained the second complaint on the same facts and issued process against the accused persons including the petitioners, is illegal and without jurisdiction. (3). The first contention of the learned counsel for the petitioners is that the first complaint filed by the Insecticide Inspector on 23rd May, 1985 was dismissed by the learned Munsif and Judicial Magistrate, Pali vide order dated 1st October, 1985 and that order of dismissal being a judicial order, could not be revised by the learned Munsif and Judicial Magistrate by passing the order dated 22nd November, 1985 and therefore, the learned Munsif and Judicial Magistrate had no jurisdiction to entertain the second complaint and initiate proceedings against the petitioners on its basis as was done by passing the order dated 22nd November, 1985. (4). The learned Public Prosecutor has submitted that there is no force in this submission, because, the earlier order dated 1st October, 1985, whereby the first complaint was dismissed was passed without cognizance of the offence. (5). I have perused the various orders passed in the first complaint. It appears that the first complaint was filed on 23rd May, 1985 and it was directed by the court that the complaint should be put up on 13th June, 1985 with report. On 13.6.1985 the Assistant Public Prosecutor wanted time to remove the defects and the case was ordered to be listed on 1st July, 1985. On 1st July, 1985, the Presiding Officer was not present as he had been transferred and his successor had not joined. On 1st August, 1985 it was found that the defect has not been removed, and therefore, time up to 13th August, 1985 was given to remove the defects. On 13th August, 1985 it was again found that the defects have not been removed and time to remove the defects was extended to 31st August, 1985. On 1st August, 1985 it was found that the defect has not been removed, and therefore, time up to 13th August, 1985 was given to remove the defects. On 13th August, 1985 it was again found that the defects have not been removed and time to remove the defects was extended to 31st August, 1985. On 31st August, 1985 the complainant was not present and on request of the Assistant Public Prosecutor, the case was ordered to be listed on 13th September, 85. On 13th September, 85 also the complainant did not appear and the case was listed on 1st October, 85. On 1st October, 85 the complainant did not appear and the learned Munsif and Judicial Magistrate passed an order that the complaint be dismissed. (6). A perusal of the orders passed by the learned Munsif and Judicial Magistrate on the first complaint clearly shows that the learned Munsif and Judicial Magistrate did not take cognizance of the offence u/s 29(1) of the Insecticides Act at any stage before passing the order dated 1st October, 85. In these circumstances, the order of dismissal of the complaint passed on 1st October 85 is neither an order of dismissal u/s 203 nor it is an order u/s 256 Cr.P.C. An order u/s 203 Cr.P.C. can be passed after taking cognizance of the offence and conducting inquiry as contemplated by Section 200 and 202 Cr.P.C. and the order under Sec. 256 Cr.P.C. can be passed during the trial of the summons case by Magistrate, after the cognizance of the offence has been taken and the accused appears or is brought before the Magistrate, as contemplated by Section 251 Cr.P.C. Since, the order dated 1st October, 85 cannot be said to be an order passed u/s 203 or 256 Cr.P.C., it must be inferred that the order dated 1st October, 85 amounts to an order refusing to take cognizance of the offence as the complainant was not present in the Court. In these circumstances, it cannot be said that the order dated 1st October, 85 in any way prevented the learned Munsif and Judicial Magistrate from entertaining the second complaint and taking cognizance on the basis thereof. The first submission made by the learned counsel for the petitioner is therefore, rejected. (7). In these circumstances, it cannot be said that the order dated 1st October, 85 in any way prevented the learned Munsif and Judicial Magistrate from entertaining the second complaint and taking cognizance on the basis thereof. The first submission made by the learned counsel for the petitioner is therefore, rejected. (7). The second submission of the learned counsel for the petitioners is that the sample of the insecticide was taken from the shop of M/s Gajendra Seeds Store, Kumaharon Ki Bagichi, Pali in presence of Shri Rajendra Arora, Proprietor of M/s Gajendra Seeds Store and there is no sufficient evidence to connect the accused No.3 M/s. Lotus Pesticides, Sadri and the accused no.4 and 5 (who are petitioners in this case). It is therefore, submitted by him that the order dated 22nd November, 85 so far as it directs the issue of process against the accused no.3 to 5 is contrary to the provisions of Sec. 204 Cr.P.C. which requires that before passing the order of issue of process against the accused, the court must be satisfied that there are sufficient grounds against him/them. It is further submitted by the learned counsel for the petitioners that according to the averments made in the complaint, the insecticide, of which sample had been taken was found in double gunny bags and merely because on the gunny bags, the name of M/s Lotus Pesticides was mentioned, it cannot be said that the insecticide, which was found in the shop of M/s Gajendra Seeds Store was sold by M/s Lotus Pesticides, Sadri. It is further submitted by the learned counsel for the petitioners that M/s Lotus Pesticides Pvt. Ltd. was registered under the Companies Act on 9th January, 85 at Bombay and it means that M/s Lotus Pesticides Pvt. Ltd. was not in existence on 21.11.84, when the sample of the insecticide was collected by the Insecticide Inspector. It is also submitted by him that there are no averments and much less evidence to show that the accused nos. 4 and 5 are in any manner responsible for the alleged offence u/s 33 of the Insecticides Act. On the basis of above submissions, it is prayed that the order of issuing process against the petitioners be quashed. (8). It is also submitted by him that there are no averments and much less evidence to show that the accused nos. 4 and 5 are in any manner responsible for the alleged offence u/s 33 of the Insecticides Act. On the basis of above submissions, it is prayed that the order of issuing process against the petitioners be quashed. (8). The learned Public Prosecutor has submitted that even if the order by which process was ordered to be issued against the petitioners is quashed, the Magi- strate has the right to conduct further inquiry to find out whether there are sufficient grounds to proceed against any person other than accused no.1 and 2 and therefore, a direction may be issued to the learned Munsif and Judicial Magistrate that he should conduct an inquiry by giving opportunity to the prosecution to find out if there are sufficient grounds to proceed against the accused no. 3, 4 and 5. (9). In view of the particular facts and circumstances of the case and after carefully perusing the record of the lower court and taking into consideration the submissions made by the learned counsel for the petitioner and the learned Public Prosecutor, I am satisfied that issue of process against the accused no.3, 4 and 5 by passing the order dated 22nd November, 85 amounts to abuse of the process of the court and there does not appear to be sufficient ground to proceed against them. Consequently, the order dated 22.11.85 is quashed so far as the direction of issue of process against the accused no.3, 4 and 5 is concerned. The learned Munsif and Judicial Magistrate is directed to give an opportunity to the prosecution to produce such evidence as may be available and to conduct inquiry to find out whe- ther there are sufficient grounds to proceed against the accused no.3, 4 and 5. If the learned Munsif and Judicial Magistrate, on conducting an inquiry find sufficient ground to proceed against any accused person/persons other than accused no.1 and 2, he shall be competent to issue process against him/them u/s 204 Cr.P.C. (10). The petition is disposed of accordingly. A copy of the order alongwith the record of the lower court be sent to the Judicial Magistrate within a period of 15 days for information and necessary action.