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2009 DIGILAW 1233 (PNJ)

Jaswant v. State Of Haryana

2009-07-24

HARBANS LAL

body2009
Judgment Harbans Lal, J. 1. This petition has been directed against the judgment dated 12.7.2000 passed by the Court of learned Additional Sessions Judge, Bhiwani whereby he partly accepted the appeal filed by Jaswant accused by reducing the sentence with the following observations : "However, as appellant has already faced trial of more than 8 years in this case and the fact that minimum sentence provided under the Statute in such like offences is 6 months RI and fine of Rs. 1,000/-, 1 am of the view that little lenient view can be taken on the point of sentence. So, appeal regarding order of sentence is partly accepted and appellant shall undergo 6 months rigorous imprisonment and in default of payment of fine Rs. 1,000/-, he will undergo further one month rigorous imprisonment. Fine reported to be deposited before the trial Court. Bail of the accused-appellant is cancelled, he is ordered to be taken in judicial custody and be sent to District Jail, Bhiwani, to carry out the sentence awarded by trial Court and as modified by this Court in the present appeal. File be consigned to the record room. Record of the trial Court be sent back forthwith." 2. The appeal was filed against the judgment/order of sentence dated 13.5.1999 rendered by the Court of learned Sub Divisional Judicial Magistrate, Charkhi Dadri vide which he convicted and sentenced the aforesaid accused to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/- under Section 16(l)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for brevity, the Act) or in default of payment of fine to further undergo rigorous imprisonment for three months. 3. The minimal facts are that on 25.3.1992, the accused was intercepted by Government Food Inspector who was accompanied by Dr. Umed Singh Disodia, at Delhi road, Charkhi Dadri. He was having 18 kilograms of cow milk for public sale. The Food Inspector purchased 750 grams cow milk vide receipt Ex.PB. The usual formalities were observed. The public analyst opined that the sample does not conform to the standard of cow milk and milk fats were found to be below minimum specified limit of 4.0% and milk solids not fat found below minimum specified limit of 8.5%. On these allegations, the complaint was lodged. The usual formalities were observed. The public analyst opined that the sample does not conform to the standard of cow milk and milk fats were found to be below minimum specified limit of 4.0% and milk solids not fat found below minimum specified limit of 8.5%. On these allegations, the complaint was lodged. After recording precharge evidence, the accused was charged under Section 16(l)(a)(i) ibid to which he did not plead guilty and claimed trial. On close of the prosecution evidence, when examined under Section 313 of Cr.P.C, the accused denied all the allegations appearing in the prosecution evidence against him and pleaded false implication. In his defence, he examined Shri Rajender Dev, Junior Engineer Luharu Mechanical. After hearing the learned Government Food Inspector, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he went up in appeal, which was partly accepted. Being undaunted and dissatisfied with the judgments recorded by both the Courts below, he has filed this revision. 4. The case was adjourned from time to time for arguments and was also displayed on the net repeatedly but despite that none came forward to argue on behalf of the petitioner. However, i have heard the learned State Counsel besides perusing the record with due care and circumspection. 5. As pleaded in the grounds of revision, the complaint was filed against the petitioner in the year 1992 and the case was converted into warrant case in August, 1996, i.e., after 4 years and then the charge was framed in July, 1997. That no substantial and reasoned order has been passed as to under what circumstances, the learned trial Court has tried the case as a warrant case. That the case should have been tried as a summons case. If any order was to be passed that could be probably within one or two years of the complaint. The statements of Ram Saran Government Food Inspector PW 1 and Dr. Umed Singh Dissodia PW2 are materially discrepant. Furthermore, they have improved upon their statements at each and every step.. That the Courts below have completely ignored that there is marginal deficiency in the sample. The milk fat were 3.8% against 4.0% and milk solids not fat were 6.2% against 8.5%. Umed Singh Dissodia PW2 are materially discrepant. Furthermore, they have improved upon their statements at each and every step.. That the Courts below have completely ignored that there is marginal deficiency in the sample. The milk fat were 3.8% against 4.0% and milk solids not fat were 6.2% against 8.5%. The milk was not properly stirred and moreover, the deficiency as alleged is not injurious to health. Therefore, the benefit of doubt should have been granted to the petitioner. The learned State Counsel pressed into service that on appraisal of the evidence, it transpires that no fault can be found with the findings returned by both the Courts below. This contention merits rejection for the discussion to follow hereunder. 6. A glance through the trial Courts record would reveal that the complaint was presented on 5.6.1992. The accused was summoned for 25.9.1992 on which date, he was admitted to bail and the prosecution witnesses were summoned. The order-sheet dated 25.9.1992 reads in the following terms : "Present :- Shri Sube Singh on behalf of the Government Food Inspector. Accused in person. Accused is admitted to the bail to the sum of Rs. 3,000/- with one surety in the like amount. Bail bonds and surety bonds are accepted and attested. PWs be summoned for 26.3.1993." 7 As is borne out further from the record on 4.7.1997 the precharge evidence was closed and the accused was charged under Section 16 (l)(a)(i) of the Act. After recording further evidence, the accused was examined under Section 313 of Cr.P.C. Section 16A of the Act reads in the following terms :- "16A. PWs be summoned for 26.3.1993." 7 As is borne out further from the record on 4.7.1997 the precharge evidence was closed and the accused was charged under Section 16 (l)(a)(i) of the Act. After recording further evidence, the accused was examined under Section 313 of Cr.P.C. Section 16A of the Act reads in the following terms :- "16A. Power of court to try cases summarily.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under sub-section (1) of section 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial : Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the magistrate to pass a sentence of imprisonment for a term not exceeding one year: Provided further that when at the commencement of, or in the course of, a summary trial under this section it appears to the magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code." 8. It has been manifested in plain language that the accused shall be tried in a summary way. Further, if at the commencement of or in the course of a summary trial, it appears to the Magistrate that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is for any other reason undesirable to try the case summarily, the Magistrate shall after hearing the parties record an order to that effect and it is thereafter that the procedure of a warrant case shall be switched over. Present is a case, in which the procedure of warrant case was adopted at the very commencement, without hearing the parties and without recording an order in the terms indicated in the proviso to Section 16A ibid. The order dated 25.9.1992 reproduced in verbatim, heretofore, does not speak of its being switching over to procedure of warrant case, the Magistrate is obligated to record his satisfaction that the nature of the case in such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it was for a other reason undesirable to try the case summarily. Herein, this mandate enshrined in Section 16A ibid has been thrown to the wind. The Proviso to this Section has specified the circumstances under which the Magistrate could depart from the summary procedure. In re : Ram Kumar v. State of Haryana, 1995 (2) Recent Criminal Report 89, the Magistrate had switched over to the procedure of warrant case without hearing the parties and without recording reasons. It was held that the order is invalid. It is mandatory for the Magistrate to hear the parties and record and thereafter, recall the witnesses who might have been examined and proceed to hear and rehear the case in the manner as provided in Criminal Procedure Code. Further in case Ram Phal v. State of Haryana, 1990 (1) Recent Criminal Reports 5, also the trial Court had erred in framing charge against the petitioner and trying the case by warrant procedure instead of trying in summarily. The proceedings were quashed. 9. Reverting back to the instant case, the afore- referred order dated 25.09.1992 reflects non-application of mind by the learned trial Court. It was obligatory upon the magistrate to express his opinion in writing as to under what circumstances the case has been restored to be tried as a warrant case. Thus to say the least of it, the said order is not in consonance with the provisions of Section 16A ibid. 10. In view of the infirmity referred to above, the trial stands vitiated. The petitioner has been facing the agony of trial since 1992. In other words, this incidence is more than 16 years old. It would be causing injustice to the petitioner, if at such a distant time, the case is remitted to the trial Court for de-novo trial. 10. In view of the infirmity referred to above, the trial stands vitiated. The petitioner has been facing the agony of trial since 1992. In other words, this incidence is more than 16 years old. It would be causing injustice to the petitioner, if at such a distant time, the case is remitted to the trial Court for de-novo trial. In the words of Justice Brennan of the United States Supreme Court "Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with but justice makes us want to pull things down." Such being the circumstances, this revision petition is accepted, setting aside the judgments recorded by both the Courts below. Disposed of accordingly.