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2002 DIGILAW 943 (PNJ)

Chattar Singh v. State Of Haryana

2002-09-19

SATISH KUMAR MITTAL

body2002
Judgment 1. Chhattar Singh-petitioner has filed the present petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) for quashing of the complaint dated 5-1-1990 (Annexure P-1) and the order dated 26-8-1993 (Annexure P-2) passed by the Sub-Divisional Judicial Magistrate, Jhajjar, vide which his application for dismissal of the second complaint has been rejected. 2. Briefly stated, the facts of the case are that on 25-3-1985, a sample of turmeric powder was taken from the shop of the petitioner by the Food Inspector under the provisions of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). The said sample was found to be adulterated by the Public Analyst. Consequently, on 29-4-1985, a complaint was filed by the Food Inspector against the petitioner under Section 7 read with Section 16(1)(a)(i) of the Act. After the trial, the petitioner was convicted for the said offence by the Sub-Divisional Judicial Magistrate, Jhajjar vide judgment dated 25-1-1988. Against that judgment, petitioner filed an appeal and the same was accepted by the learned Additional Sessions Judge. Rohtak on 28-10-1988. The conviction of the petitioner was set aside and the matter was remanded with a direction to the trial Magistrate that proper charge be framed against the accused and thereafter the case be decided as per law. On remand, a fresh trial was again started against the petitioner. On 29-9-1989, when the Food Inspector, who is the complainant, was examining his witnesses in order to prove the charges against the petitioner, the complaint was dismissed in default and accused was ordered to be discharged, as the complainant was not present. Thereafter, on 6-10-1989 an application was filed by the Food Inspector before the trial Court for restoration of the case by giving sufficient cause for not appearing in the case on 29-9-1989. The said application was contested by the petitioner. On 5-1-1990. Food Inspector made a statement before the Court for withdrawal of the aforesaid application for restoration of the case, which was duly recorded and on the basis of the said statement, the aforesaid restoration application was dismissed and the file was consigned to the record. Immediately, on the same day, the second complaint was filed by the Food Inspector on the same facts and allegations against the petitioner. In the said complaint, the petitioner was summoned by the Sub-Divisional Judicial Magistrate, Jhajjar. Immediately, on the same day, the second complaint was filed by the Food Inspector on the same facts and allegations against the petitioner. In the said complaint, the petitioner was summoned by the Sub-Divisional Judicial Magistrate, Jhajjar. Pursuant to the issuance of summons, the petitioner appeared and on 10-6-1993 filed an application before the trial Court to the effect that second complaint filed by the Food Inspector is not maintainable in view of the fact that the first complaint filed against him was dismissed on 29-9-1989 and he was ordered to be discharged. On the same facts and allegations, the second complaint is not maintainable. Therefore, he prayed that the proceedings against him are liable to be quashed. The learned trial Court did not agree with the contention of the petitioner and rejected his application vide order dated 26-8-1993 (Annexure P-2). This order as well as the filing of second complaint (Annexure P-1) has been challenged in the present petition with a prayer for quashing the same under Section 482 of the Code. 3. Shri J. S. Bedi, learned counsel for the petitioner has raised two-fold contentions before me. The first point argued by him is that dismissal of the first complaint, whether for default or on merits, has the same effect of exonerating the accused of the allegations and so long as that order remains, a second complaint is not maintainable in law. The second contention is that in case it is held by this Court that the second complaint is maintainable, even then looking to the delay caused in the present case, which is pending since 1985 and in view of the hard fact that the petitioner has faced the agony of the protracted trial from the last 17 years without any fault attributed to him, the present proceedings would amount to abuse of the process of the Court and, therefore, these proceedings should be quashed in the interest of justice. 4. In support of his contention, the learned counsel for the petitioner has placed reliance on two decisions of this Court in Ranjit Singh V/s. Pritam Singh, (1992) 1 Chand LR 188 and Har Sarup Singh V/s. State of Haryana, (1993) 2 Rec Cri R 527 and a decision of Hon ble Supreme Court in Bindesh-wari Prasad Singh V/s. Kali Singh, AIR 1977 SC 2432 . Learned counsel for the petitioner also placed reliance upon the decisions in Bachan Singh V/s. State of Haryana, 2000 3 RCriR 86 (Punj and Hry), Pritam Singh V/s. The State of Haryana, 1992 1 RCriR 265 (Punj and Hry); Ram Nath V/s. State of Haryana, 2000 3 RCriR 137 (Punj and Hry), a decision of the Hon ble Supreme Court in Mahendra Lal Das V/s. State of Bihar, 2001 4 RCriR 589 and Narinderjit Singh Sahni V/s. Union of India, 2001 4 RCriR 591. 5. Section 300 of the Code provides that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of Section 221, or for which he might have been convicted under sub-section (2) thereof. The explanation added to this Section provides that the dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section. The provisions of this Section have been interpreted by the Apex Court in Pramatha Nath Talukdar V/s. Saroj Ranjan Sarkar, AIR 1962 SC 876 . While considering the question whether a second complaint is maintainable on the same facts and allegations when the accused was discharged under Section 203 of the Code, a majority of Judges of three Judge Bench held as under :- "An order of dismissal under S. 203, Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into." 6. In the aforesaid decision, the first complaint was dismissed under Section 203 of the Code when the Magistrate was not satisfied and was of the opinion that there was no sufficient ground for proceeding with the complaint. The aforesaid case was not a case where the complaint was dismissed in default. Such controversy had arisen in Jatinder Singh V/s. Ranjit Kaur, AIR 2001 SC 784 where the Hon ble Supreme Court has held that if the dismissal of the complaint was not on merit but on default of the complainant to be present, there is no bar in the complainant moving the Magistrate again with a second complaint on the same facts. But if the dismissal of the complaint under S. 203 of the Code was on merits the position could be different. It was held that there is no provision in the Code or in any other statute which debars a complainant from preferring a second complaint on the same allegations if the first complaint did not result in a conviction or acquittal or even discharge. Section 300 of the Code, which debars a second trial, has taken care to explain that the dismissal of a complaint or the discharge of an accused is not an acquittal for the purpose of this section. However, when a Magistrate conducts an inquiry under Section 202 of the Code and dismisses the complaint on merits, a second complaint on the same facts cannot be made unless there are very exceptional circumstances. Even so, a second complaint is permissible depending upon how the complaint happened to be dismissed at the first instance. 7. Thus, from the aforesaid judgment, it is clear that though the second complaint is maintainable if the first complaint was dismissed under Section 203 of the Code or the same was dismissed in default on account of non-appearance of the complainant. 7. Thus, from the aforesaid judgment, it is clear that though the second complaint is maintainable if the first complaint was dismissed under Section 203 of the Code or the same was dismissed in default on account of non-appearance of the complainant. Even if the dismissal of the first complaint in default is taken to be discharged of the accused, then the second complaint is maintainable, but the same will be entertained only in exceptional circumstances, as mentioned in Pramatha Nath Talukdars case (supra), whether the case in hand falls under the exceptional circumstances or not, I am not inclined to go into this question as in my opinion the complaint dated 5-1-1990 (Annexure P-1) and the summoning order dated 26-8-1993 (Annexure P-2) are liable to be quashed on the second contention raised by the counsel for the petitioner. 8. In the present case, the first complaint was filed on 29-4-1985 which resulted into conviction of the petitioner vide judgment dated 25-1-1988. That judgment was subsequently set aside by the learned Additional Sessions Judge on 28-10-1988 and the matter was remanded with a direction to frame proper charge against the petitioner. During the fresh trial after the remand, the matter was dismissed in default on 29-9-1989. The application for restoration of the previous complaint was withdrawn by the Food Inspector on 5-1-1990. Thereafter, the fresh complaint was filed in which the petitioner was summoned. The petitioner challenged the filing of the second complaint as well as the summoning order by filing the present petition. The proceedings before the trial Court were stayed by this Court vide order dated 13-10-1993, which is still operating. Even if the prayer of the petitioner in the present petition is declined then the proceedings before the trial Court will rejoin. It may take further time to arrive to a final adjudication of the matter. The proceedings in this case are going on from the last 17 years and the petitioner is facing the agony of the criminal proceedings since 1985 and at no point of time he ever remained absent from the proceedings. 9. It may take further time to arrive to a final adjudication of the matter. The proceedings in this case are going on from the last 17 years and the petitioner is facing the agony of the criminal proceedings since 1985 and at no point of time he ever remained absent from the proceedings. 9. In Sham Lal V/s. State of Haryana, 1990 1 RCR 150, the Hon ble Punjab and Haryana High Court has held that speedy trial is the right of the citizen and if the trial at the appeal and revision stage remained pending for six years, it is a fit case to acquit such person without going into the merits of the case. 10. In Pritam Singhs case (supra), this Court has held that if trial of an accused is prolonged for six years under the Act without any fault attributed to him, it is violation of the fundamental right under Article 21 of the Constitution of India and after such a delay, the criminal proceedings are liable to be quashed. 11. Same principle has been followed in Bachan Singhs case (supra), where the accused was acquitted without going into the merits of the case, as he had suffered the agony of the criminal proceedings for the last more than 15 years. 12. In Ram Naths case (supra), the criminal proceedings against the accused under the Act, which prolonged for 17 years, were quashed by applying the principle laid down in various judgments of this Court. It was held that remanding the case for fresh trial after 17 years of the case will further add the agony of the accused. 13. In Mahendra Lal Dass case (supra), the Hon ble Supreme Court has held that every citizen has a right of speedy trial of the case pending against him. The speedy trial was considered also in public interest it serves the social interest also and it is in the interest of all concerned that guilt or innocence of the accused is determined as quickly as possible. The right to speedy trial encompasses all the stages, namely, stage of investigation, enquiry, trial, appeal, revision and retrial. While determining the alleged delay, the Court has to decide each case on its fact having regard to all attending circumstances including nature of offence, number of accused and witnesses, the work-load of the Court concerned, prevailing local conditions etc. The right to speedy trial encompasses all the stages, namely, stage of investigation, enquiry, trial, appeal, revision and retrial. While determining the alleged delay, the Court has to decide each case on its fact having regard to all attending circumstances including nature of offence, number of accused and witnesses, the work-load of the Court concerned, prevailing local conditions etc. Inordinate long delay can be taken as a preventive proof of prejudice. 14. Keeping in view the peculiar facts and circumstances of the case, I am inclined to quash the proceedings against the petitioner as permitting further prosecution would be the travesty of justice and a mere ritual of formality so far as the prosecution agency is concerned, and unnecessary burden as regards the Courts. 15. This petition is accordingly allowed. The complaint dated 5-1-1990 (Annexure P-1) and the summoning order dated 26-8-1993 (Annexure P-2) are hereby quashed in the interest of justice.