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2002 DIGILAW 921 (PNJ)

Daya Ram v. State Of Haryana

2002-09-13

VINEY MITTAL

body2002
Judgment Viney Mittal, J. 1. The present petition under Section 482 of the Code of Criminal Procedure, 1973 has been filed by the petitioner for quashing of the complaint dated September 17, 1992 and the order of learned Chief Judicial Magistrate dated October 20, 1999 summoning him. A copy of the complaint dated September 17, 1992 has been appended as Annexure P.2 with the petition whereas the said order dated October 20, 1999 has been appended as Annexure P.1 with the petition. 2. Certain facts may be noticed. Food Inspector intercepted the petitioner on January 15, 1992 and took sample of the milk. While such bottles were sent to the Public Analyst for analysis of the aforesaid sample, the milk was found to be adulterated. On receipt of the report of the Analyst, the Food Inspector filed a criminal complaint under the Prevention of Food Adulteration Act, 1954. The petitioner was summoned. He appeared. He pleaded not guilty to the charge and opted to face the trial. 3. The case of the petitioner, is that prosecution produced Daya Kishan, Food Inspector, Dr. S.K. Sharma, Medical Officer, Gurgaon and the Local Health Authority, Gurgaon as prosecution witnesses and after recording the statements of above said witnesses, the prosecution closed its evidence. The case was then listed for recording the statement of the accused-petitioner under Section 313 of the Code of Criminal Procedure, 1973. The statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The case was adjourned to July 27, 1995 for defence evidence and arguments. Apart from this, a part of defence evidence was recorded. 4. The petitioner states that all of a sudden on July 27, 1995 the learned trial Court passed an order whereby he changed the mode of summary trial to warrant trial and the defence witness, namely, Dr. D.R. Dhamija, Assistant in the office of the Commissioner of Health and Family Welfare, Haryana Chandigarh, who was present for recording the evidence, was discharged. Since according to the petitioner, the aforesaid order dated July 27, 1995 amounted to re-trial, therefore, the petitioner approached this Court through a petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the aforesaid order and the complaint itself. Vide order dated January 9, 1997 this Court quashed the aforesaid order. Since according to the petitioner, the aforesaid order dated July 27, 1995 amounted to re-trial, therefore, the petitioner approached this Court through a petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the aforesaid order and the complaint itself. Vide order dated January 9, 1997 this Court quashed the aforesaid order. It was directed that the case would be tried in a summary mode of trial. 5. Thereafter, the Presiding Officer was transferred and the charge was taken by the new Presiding Officer. Ultimately on October 20, 1999, the learned Chief Judicial Magistrate passed an order that since there was change in the Presiding Officer, therefore, the entire evidence had to be recorded, once all over again. An objection was taken by the petitioner before the learned Chief Judicial Magistrate on that date that the proceedings had continued for more than ten years and, therefore, in view of the liberty provisions contained in Article 21 of the Constitution of India the proceedings were liable to be dropped. However, while passing the aforesaid order on October 20, 1999, the learned Chief Judicial Magistrate did not accept the aforesaid prayer made by the accused-petitioner. It is in these circumstances the petition has been filed by the petitioner challenging the aforesaid order dated October 20, 1999 and a prayer has also been made to quash the complaint. 6. I have heard Shri Rajesh Arora, learned counsel for the petitioner and Shri Amol Rattan, learned Assistant Advocate General, Haryana for the respondent. 7. Shri Rajesh Arora, learned counsel for the petitioner submits that there has been a prolonged and protracted trial and the petitioner has already suffered the agony of trial for a period of more than 10 years. Shri Arora has further submitted that since the case had ripened up to the stage of leading of defence evidence and earlier all the prosecution evidence had been led and even the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 had been recorded, then at this stage, there was no occasion for re-opening the whole case, all over again and hold de-novo trial of the case. To strengthen his submission, Shri Arora has relied upon a Single Bench judgment of this Court in Suraj Bhan and another v. State of Haryana, 1997(1), Prevention of Food Adulteration Cases 168. 8. To strengthen his submission, Shri Arora has relied upon a Single Bench judgment of this Court in Suraj Bhan and another v. State of Haryana, 1997(1), Prevention of Food Adulteration Cases 168. 8. On the other hand, Shri Amol Rattan, learned Assistant Advocate General submits that there was no illegality involved in de-novo trial. He has further submitted that since there was change in the Presiding Officer, therefore, the recording of the evidence all over again is necessitated and was wholly justified under the circumstances of the case. 9. I have given my thoughtful consideration to the entire matter and find that this petition deserves to succeed. It is not in dispute that the sample of milk was drawn from the petitioner on January 15, 1992. Thereafter, for a period of six years, the prosecution evidence was led, the statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded and even a part of defence evidence. was recorded. Thus, ordering the re-trial of the case at this stage by asking the prosecution to lead the evidence all over again would be definitely a violation of the principle enshrined in Article 21 of the Constitution of India. The petitioner has already suffered the agony of a protracted and prolonged proceedings. No useful purpose would be served in prolonging his agony any further. Almost in identical circumstances, a similar view was taken by this Court in Suraj Bhans case (supra). 10. For the reasons recorded above, I allow the present petition and while setting aside the order dated October 20, 1999 also quash the complaint Annexure P.2. All consequential proceedings taken in pursuance to the aforesaid complaint would automatically stand quashed.