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2011 DIGILAW 240 (JK)

State v. Shamas Din

2011-05-11

MANSOOR AHMAD MIR

body2011
This order shall govern all the above titled revision petitions, since a common question of law is involved in all these petitions. Petitioner-State has filed separate complaints against the respondents before the Court of competent jurisdiction at Ramban, for the commission of offence(s) punishable under Section 7/16 of Prevention of Food Adulteration Act (for short P.F.A Act, hereinafter). It appears that all those cases were listed before the Lok Adalat and the respondents-accused appears to have made a confessional statements and came to be convicted and sentenced to pay a fine of Rs. 400/- in each case vide order dated 15th of July' 2008 (for short the impugned order, hereinafter). Feeling aggrieved, petitioner has questioned all the orders passed by the Lok Adalat by the medium of these revision petitions. Core question involved in all these revision petitions is:- i) Whether an accused person can be convicted by the Lok Adalat on the basis of the confessional statement? The answer is in negative for the following reasons:- Chapter V of the Legal Services Authorities Act (for short 'the Act' hereinafter) deals with the Lok Adalat. Sections 18, 19, 20 & 21 of the Act provides for organizing-convening of Lok Adalat, cognizance of the cases by Lok Adalat, Award of Lok Adalat and powers of Lok Adalat. It is apt to reproduce Section 18(4) of the Act herein:- “18 (4) Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of,- (i) Any case pending before; or (ii) any matter which is falling within the jurisdiction of and is not brought before, any court for which the Lok Adalat is organized; Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law.” While going through this provision of the law, it is crystal clear that the Lok Adalat has no power, competence or jurisdiction to entertain a case relating to the offence which is not compoundable under the law. Section 19 of the Act provides as to how Lok Adalat can take cognizance, enter into negotiations and settle the issue-dispute. Section 20 of the Act provides that every award of the Lok Adalat shall be deemed to be a Civil Court decree and no appeal lies against it. Section 19 of the Act provides as to how Lok Adalat can take cognizance, enter into negotiations and settle the issue-dispute. Section 20 of the Act provides that every award of the Lok Adalat shall be deemed to be a Civil Court decree and no appeal lies against it. It is appropriate to reproduce Section 20 of the Act herein:- “20. AWARD OF LOK ADALAT: (1) Every award of the Lok Adalat shall be deemed to be a decree of a civil court or, as the case may be, an order of any other court and where a compromise or settlement has been arrived at, by a Lok Adalat in a case referred to it under sub-section (1) of Section 19, the court fee paid in such case shall be refunded in the manner provided under the Court Fees Act, Samvat 1977 (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award.” The concept of convening the Lok Adalat is to settle the dispute so that the dispute will come to an end once for all and the award made shall be final. The purpose of the Act is not to refer the cases, which are not cognizable by the Lok Adalat and try to settle the case and pass orders which are beyond its purview, competence, power and jurisdiction. It appears that it has become a trend of the judicial officers who convene Lok Adalats to record that number of cases were settled by them in order to get wide publicity and Lok Adalat convened on 15th of July' 2008 at Ramban is an example. The offences punishable under the P.F.A Act are against the Society, cognizable and non-bailable. Purpose of the Act was to curb the adulteration of food stuffs, which was so rampant among the sellers and dealers and to onslaught on the anti-social activities of the people. The aim and object of the Act is to eliminate danger to human life from the sale of unwholesome articles of food. It is enacted to curb the widespread evil of food adulteration and is a legislative measure for social defence. The offence of adulteration is a socio-economic offence and that is why minimum punishment-sentence is provided under the provisions of Section 16 of the P.F.A. Act. It is enacted to curb the widespread evil of food adulteration and is a legislative measure for social defence. The offence of adulteration is a socio-economic offence and that is why minimum punishment-sentence is provided under the provisions of Section 16 of the P.F.A. Act. It is also provided that special reasons are to be recorded in exceptional cases, for imposing sentence of less than the prescribed minimum but it must contain both, i.e., imprisonment and fine. The Apex Court in a case titled Pyarali K Tajani Vs. Mahadeo Ramachandra Dange & Ors, reported in AIR 1974 SC 228 , has discussed the aim and scope of the P.F.A Act. It is apt to reproduce para 4 & 21 of the judgment herein:- “4.A close-up of the law relevant to this case will help focus attention on the criminal area into which the appellant is alleged to have entered. The central concept of the statute is prevention of adulteration of food in the sombre background of escalating manoeuvres by profiteers who seek to draw dividends from the damage to the health of the people caused by trade in adulteration. The social sternness and wide sweep of the statute can be realised from the thought that an insidious host that internally erodes the vitality of a nutritionally deficient nation is, in one sense, a greater menace than a visible army of aggression at our frontiers and so the police power of the State must reach out to protect the unsuspecting community with overpowering laws against those whose activities are a serious hazard to public health. And so a minimum jail term is fixed in the Act itself. 21. The finale in every criminal trial is sentence. Let us take stock of the social and personal facts, the features of the crime and the culprit. The Prevention of Food Adulteration Act, 1954, is meant to save society, and Parliament has by repeated amendments emphasized the statutory determination to stamp out food offenses by servere senences. Indeed, dissatisfied with the indulgent exercise of judicial discretion, the legislature has deprived the court of its power to be lenient. In the light of escalating food adulteration this is understandable. Even so, there are violations and violations. Scented supari is neither a staple diet nor popular with the poor, being an expensive item. Nor is saccharin poisonous but prohibited more as a precaution. In the light of escalating food adulteration this is understandable. Even so, there are violations and violations. Scented supari is neither a staple diet nor popular with the poor, being an expensive item. Nor is saccharin poisonous but prohibited more as a precaution. That may be the reason for the prosecution not leading evidence of its injurious properties. The circular bearing on saccharin in supari, though irrelevant to nullify the rule, suggests that it is not so grave a danger and may perhaps be permitted again. Cyclamate stands on a somewhat different footing, although in a practical sense, the menace to health from it is not too serious except where unusually massive doses are consumed. The accused's non-knowledge has been rejected by us but he alleges that he has retired from the firm. He has undergone a week in jail and is not shown to be a repeater.” While keeping in view the law laid down read with section 16 of the P.F.A Act, it is the duty of sentencing judge to pass appropriate sentence in order to curb the offences which are against the Society. If an offender can get away with it by payment of trivial fine that will defeat the purpose of the P.F.A Act and would be the abuse of process of law and against the mandate of P.F.A Act. Virtually it will encourage the offenders. The Judges who pass such orders bring law into contempt and make its enforcement a mockery. By making the orders impugned, virtually, the Magistrates have attempted contempt, abused their position, power, competence and jurisdiction and are liable for contempt. The Apex Court in case supra has laid down same principle in the said judgment. It is apt to reproduce para 25 of the judgment (supra) herein:- 25. Indeed, the education of. By making the orders impugned, virtually, the Magistrates have attempted contempt, abused their position, power, competence and jurisdiction and are liable for contempt. The Apex Court in case supra has laid down same principle in the said judgment. It is apt to reproduce para 25 of the judgment (supra) herein:- 25. Indeed, the education of. the sentencing judge, particularly in the context of economic offenses, is a yawning gap in our criminal system and the, near-escape of the accused before the trial court in this case, prevented only by the Criminal Revision to the High Court, permits us to observe that the magistracy in the country has yet to realise that "there are occasions 'when an offender is so anti-social that his immediate and sometimes prolonged confinement is the best assurance of society's physical protection."(1) Or, we may add, even in less severe situations heavy enough fine to drive him out of the trade if he tried the trick again. There is injustice to the community the invisible but immense victim of the crime-in the court's misplaced sympathy for the culprit.” Lok Adalat bench has no powers to sentence the accused. Lok Adalat award is deemed to be a decree and while as the order of conviction and sentence cannot be said to be decree of a civil Court. No doubt, provisions of Sub Clause 4 of Section 18 of the Act provide that the Lok Adalat have the jurisdiction in respect of cases or matters which are compoundable under any law, meaning thereby, the Lok Adalat has the power and jurisdiction to settle offence(s)/case(s), which are compoundable, provided injured-victim makes an amicable settlement with the accused and record order of acquittal in terms of the said compromise. If the offence is compoundable with permission of the Court, then in that eventuality the Court has to grant permission to compound and thereafter order of acquittal can be made. The purpose of permitting the victim or any person on his own or on permission of the Court to compound the case means no conviction can be recorded but only order of acquittal is to be made. Section 345 of the Criminal Procedure Code (for short Cr.P.C) provides as to which offences are compoundable and which offence can be compounded with permission of the Court. Sub Clause 6 of the said Section reads as under:- “(6). Section 345 of the Criminal Procedure Code (for short Cr.P.C) provides as to which offences are compoundable and which offence can be compounded with permission of the Court. Sub Clause 6 of the said Section reads as under:- “(6). The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.” Section 345 (6) of Cr.P.C talks of composition of an offence, which has the effect of an acquittal and not of conviction. In the given circumstances, wherefrom the Lok Adalat Bench has derived the powers and jurisdiction to settle the cases relating to offences which are not compoundable, as the case in hand, how it got power to convict the accused and record the sentence. These illegal orders have encouraged the litigation. It appears that the purpose, rather intention was to list the cases and to record that record number of cases were settled in order to gain publicity. This practice is gaining height, though it is illegal and against the mandate of law, such actions/orders destroy the society and the nation, needs to be discouraged. It is made clear that the statements made by the respondents before the Lok Adalat bench are not admissible in evidence and cannot read against them. In the given circumstances, all the revision petitions are allowed and the impugned orders are set aside. Trial Court to summon the accused through proper course and take the complaints to its logical end within six months from the date the respondent(s) cause his/their appearance before the Trial Court. Copy of the order be placed on each file. Registry to circulate the copy of this judgment-order to all the subordinate Judges for their information.