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1999 DIGILAW 903 (ALL)

KUNDAN LAL v. STATE OF U P

1999-07-05

B.K.SHARMA

body1999
B. K. SHARMA, J. The facts leading to the aforementioned revisions are that in Criminal Case No. 329 of 1981, Food In spector v. Ram Prakash and Mis. Shankar Salt Works through Kundan Lal, the Addl. Chief Judicial Magistrate, Dehradun, by his order dated 31-8-1982 convicted both the accused for the offence under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 and sentenced each one of them to suffer. R. I. for a period of six months and to pay a fine of Rs. 1,000 each and in default of payment of fine, to suffer R. I. for a period of one month each. 2. Accused Kundan Lal challenged his conviction by preferring Criminal Ap peal No. 84 of 1982 while accused Ram Prakash challenged his conviction by preferring Criminal Appeal No. 86 of 1982 before the Sessions Judge, Dehradun. Both the appeals were heard together by Sri Sardar Bahadur Balvecr the then Addi tional Sessions Judge, Dehradun. He found that the Court, which tried the case against the two accused appellants, had no jurisdic tion and consequently set aside their convic tion and sentence by his judgment and order dated 30-11-1984 and remanded the rase to the Chief Judicial Magistrate, Dehradun to get the case tried by the competent Court in the light of the observations made in the body of judgment afresh. He also directed the parties to appear before the Court concerned on 1-12-1984. 3. Being aggrieved by the aforesaid common order of remand in both the ap peals, accused Kundan Lal preferred Criminal Revision No. 280 of 1985 and similarly, accused Ram Prakash preferred Criminal Revision No. 306 of 1985 in this Court. The accused- revisionist Kundan Lal prayed that the operation of the im pugned order passed by the Additional Sessions Judge dated 30-11-1984 in Criminal Revision No. 84 of 1982 relating to him be stayed and acting upon that prayer, the High Court vide its order dated 5- 2-1985 stayed further proceedings as prayed. Accused-revisionist Ram Prakash made similar prayer in Criminal Revision No. 306 of 1985 and therein also, this Court upon the prayer stayed the proceed ings by its order dated 19-2-1985 and as a consequence thereof, the proceedings in criminal Case No. 329 of 1981 are lying stayed till now. 4. I have heard the learned counsel for the parties. Accused-revisionist Ram Prakash made similar prayer in Criminal Revision No. 306 of 1985 and therein also, this Court upon the prayer stayed the proceed ings by its order dated 19-2-1985 and as a consequence thereof, the proceedings in criminal Case No. 329 of 1981 are lying stayed till now. 4. I have heard the learned counsel for the parties. The only contention raised before me on behalf of the two accused-revisionists is that the order of the learned Additional Sessions Judge directing the retrial was untenable and should be set aside. Reliance has been placed by the learned counsel for the accused-revisionists on the authority 5. Guin and others v. Grindlays Bank Ltd. , 1986 (23) ACC 115 (SC ). In my view this authority is of no help to the accused-revisionists. In that case, a complaint has been filed before the Chief Metropolitan Magistrate, Calcutta for the offences under Section 341, I. P. C. and Section 36-AD of the Banking Regulation Act committed in October, 1977. After trial, the Magistrate acquitted all the accused. Against the said judgment of acquittal, an appeal was filed by the Bank before the High Court and after nearly six years, the High Court found that the trial Court had missed the essence of the offences and so there was failure of justice and conse quently set aside the judgment of acquittal and remanded the case for retrial for the offence and under these circumstances, the Apex Court observed that having regard to the nature of the acts alleged to have been committed, the High Court should have directed the dropping of the proceedings in exercise of its inherent powers under Section 482, Criminal Proce dure Code even if for some reason it came to the conclusion that the acquittal was wrong and that a fresh trial nearly seven years after the alleged incident is bound to result in harassment and abuse of judicial process. The Apex Court further said: ". . . . . . . . . . The Apex Court further said: ". . . . . . . . . . the High Court should have dis missed the appeal before it even if it disagreed with the view taken by the trial Court with regard to the gist of the offence punishable under Section 341, Indian Penal Code, having regard to the inordinate delay of nearly six years that had ensued after the judgment of acquittal, the nature and magnitude of the offenses al leged to have been committed by the appellants and the difficulties that may have to be en countered in securing the presence of witnesses in a case of this nature nearly 7 years after the incident. The termination of the criminal proceedings in that way would secure the ends of justice as it would bring about reconciliation between the management and the employees and also put an end to a stale criminal proceed ing in which the public had no longer sufficient interest. " The Apex Court consequently res tored the order of acquittal in these cir cumstances. In the present case, the facts are totally different. In this case, the occur rence related to year f 979. The Trial Court made the conviction on 31-8-1982 and the Appellate Court passed the remand order on 30-11-1984 which cannot be said to be long after and if the two accused-revisionists had abided with the remand order, retrial of the case might have been finished in theycar 1985 itself. It cannot be said that in the year 1984 when the learned Additional Sessions Judge deciding the two appeals passed the remand order, there was anything illegal in his order. There was no undue delay in the trial and also there was no undue delay in the dis posal of the appeals. Actually, the Appellate Court has no option than to direct the retrial particularly in this case which re lated to the Prevention of Food Adultera tion Act. The Courts have always recog nised that the economic offences and the offences related to the public officers and food adulteration are such in which the quashing of charge or trial may not be in the interest of justice. The Courts have always recog nised that the economic offences and the offences related to the public officers and food adulteration are such in which the quashing of charge or trial may not be in the interest of justice. The case ofrajdeo Sharma v. State of Bihar, 1998 (37) ACC 834 (SC): 1999 (1) JIC 131 (SC), is a case under the Prevention of Corruption Act in which the F. I. R. was lodged 16 long years ago; charge-sheet was submitted three years later and till 1995, the prosecution had examined only three out of forty wit nesses, the Apex Court declined to quash the prosecution pointing out that the ac cused was never incarcerated as his bail application was allowed on the day he had appeared before the Court. In the present case, there was no delay in the original trial and there was no delay in the disposal of appeals preferred against the conviction and when the Appellate Court found that the trial had been made by a Court having no jurisdiction and, therefore, directed the retrial and if due to the own act of the accused- revisionists, the retrial was delayed, then they have to thank themsel ves and in no way the prosecution is guilty of any delay in bringing the accused to retrial in pursuance of the remand order. The accused- revisionists are continuing on bail all through. Under these cir cumstances, it is immaterial that in pur suance of the remand order, the retrial would take place now after the disposal of these two criminal revisions. The spirit of "common Cause" case (common Cause" A Registered Society through its Director v. Union of India and others, 1996 SCC (Cri) 589 : 1996 JIC 792 (SC), goes against the accused- revisionists. In that case while making the direction in favour of the ac cused-person for release on bail, discharge or acquittal of the accused in cases suffer ing from delay in trial, the Apex Court expressly stated in Paragraph 4 that the directions shall not apply to the cases in volving corruption, N. D. P. S. Act, Essen tial Commodities Act, Food Adulteration Act and Acts dealing with environment or any other economic offences etc. In this authority if was said that the Criminal Courts shall try the offences mentioned in Para 1 aforesaid on priority basis. In this authority if was said that the Criminal Courts shall try the offences mentioned in Para 1 aforesaid on priority basis. The present also is a case relating the economic offence being under the Prevention of Food Adulteration Act and for that reason it was all the more improper to quash the remand order for retrial. 5. Both the above revisions are conse quently dismissed. The remand order passed by the learned Additional Sessions Judge, Dehradun is upheld. The stay orders dated 15-2-1985 and 19-2-1985 passed by this Court in Criminal Revision Nos. 280 of 1985 and 306 of 1985 respectively are va cated. It is directed that the Court to which the case is entrusted for retrial, shall act with utmost expedition in making the trial and deciding the case according to law. 6. Let the record of the trial Court which has been received in Criminal Revision No. 280 of 1985 be returned to the Chief Judicial Magistrate concerned alongwith a copy of this Older forthwith by special messenger/courier. Revisions dismissed. .