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2014 DIGILAW 467 (JK)

Rajender Kumar Yadav v. State Of J&K

2014-11-24

MOHAMMAD YAQOOB MIR

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1. Petitioner seeks quashment of the criminal proceedings launched by respondent No. 1 by filing a complaint titled "State v. Shiraz Ahmad Wani & anr" before the Court of Judicial Magistrate, Pulwama, on two grounds: First is that copy of the report of the Public Analyst to the effect that the product was adulterated, was required to be served to the petitioner so as to inform him to make an application to the Court within a period of ten days from the date of receipt thereof to get the sample of the article of food kept by local (health) authority analyzed by the Central Food Laboratory, which has not been done, as a result whereof, petitioner has been deprived of making an application so as to exercise option of getting the sample analyzed by Central Food Laboratory; Secondly, Id. Magistrate while issuing summon, in the order, has recorded that the complaint has been presented, report of the office is perused, then has issued the notice when the requirement is that the learned Magistrate should have applied his mind so as to spell out that the grounds exist for issue of process as is a requirement under Section 204 of Cr. P. C. 2. Counsel opposite would submit that the question as to whether report of the Analyst has been forwarded to the petitioner and what is its effect, is a matter to be looked into during trial. So far as second ground is concerned, Magistrate is not required to record reasons before issuing the summon, therefore, Magistrate has exercised power properly. 3. The Food Inspector on inspection of retail/distribution shop of respondent No.2 (accused No. 1) who is a dealer of the petitioner (accused No.2), at random for purposes of sample lifting, picked up three sealed bottled of fruit drink. It was divided into three parts, one part of the sample was sent for analyses. The report of the Public Analyst would show that the drink was adulterated. Based on such analysis, complaint has been filed against both the accused. 4. It is true that in terms of Section 13 of Food Adulteration Act, the requirement is to forward copy of the report of the Public Analyst to the concerned person who then has a right to make an application before the Court for sending one part of the sample for analysis to Central Food Laboratory. 4. It is true that in terms of Section 13 of Food Adulteration Act, the requirement is to forward copy of the report of the Public Analyst to the concerned person who then has a right to make an application before the Court for sending one part of the sample for analysis to Central Food Laboratory. This is a position which was not required to be looked into by Magistrate at the time of taking cognizance or at the time of issue of process. It at the most is a defence available to the petitioner, which can be looked into during trial. 5. Another important ground projected is that the Magistrate has not applied his mind while issuing the process. 6. Contention of the learned counsel for the respondent No. 1 that at the stage of issue of process reasoned order is not required to be recorded, order must show that the Magistrate has applied mind before issue of process, is quite apposite but in the instant case order recorded by the Magistrate on 15.06.2011 does not indicate that the Magistrate has applied his mind. Least Magistrate was required is that he should have recorded that after considering the allegations made in the complaint, prima-facie, grounds exist for proceeding against the accused. Recording of detailed reasons for issue of process is not required which otherwise is a requirement for dismissal of the complaint without issue of process in terms of Section 203 of the Code of Criminal Procedure. 7. The requirement is application of mind so as to indicate that the Magistrate has gone through the allegations made in the complaint on the basis of which, prima-facie, he was satisfied about existence of grounds for proceeding, against the accused. In this view I am fortified by the judgment rendered by the Hon'ble Apex Court in the case "Bhushan Kumar & anr v. State (NCT of Delhi) & anr (2012 AIR SCW 2476). Para 14 and 15 are relevant to be quoted: 14. In Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal & Ors. (2003) 4 SCC 139 : ( AIR 2003 SC 1900 : 2003 AIR SCW 1377), this Court, in para 9, held as under: 9. Para 14 and 15 are relevant to be quoted: 14. In Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal & Ors. (2003) 4 SCC 139 : ( AIR 2003 SC 1900 : 2003 AIR SCW 1377), this Court, in para 9, held as under: 9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient grounds for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd. (2000) 3 SCC 745 : ( AIR 2000 SC 1456 : 2000 AIR SCW 1058) and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722 : ( AIR 2000 SC 522 : 2000 AIR SCW 52), it was held as follows (SCC p.749, para 6): The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate has not passed a speaking order." 15. In U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi & anr., (2009) 2 SCC 147 : (2009 AIR SCW 672), this Court, in paragraph 23, held as under: 23. It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused." While applying the principle as laid down, the order recorded by the Magistrate is not inconsonance therewith. In order to make it clear, it shall be quite relevant to quote the order as has been recorded by the Magistrate in Urdu version on 15.06.2011. In order to make it clear, it shall be quite relevant to quote the order as has been recorded by the Magistrate in Urdu version on 15.06.2011. The English version is as under: 15.6.2011: Complaint by Pairavkar of the department through counsel is presented in the open court. Perused report of the office. Be entered in the concerned Register. Notice be issued to the accused for appearance. Put up on 1.7.2011." The order clearly indicates that the Magistrate has only perused report of the office, which normally indicates whether the formalities for considering the complaint are complete. The Magistrate was required to mention that he has perused the allegations made in the complaint and is satisfied, prima-facie, that the grounds exist for proceeding. That would indicate that the Magistrate has applied his mind which was imperative because at times if no ground exist, complaint can be dismissed in terms of Section 203 of the Code of Criminal Procedure. 8. A plain reading of Section 204 of Cr. P. C would suggest that the Magistrate was required to peruse the allegations of the complaint and only to record that, prima-facie, in his opinion grounds exists for proceeding. That would satisfy the requirement. The detailed reasons are not required to be recorded. The order recorded on 15.06.2011, as such, is not sustainable so is set aside. 9. The complaint is still at its infancy stage as the accused as yet have not appeared before the trial court, therefore, Magistrate shall pass fresh orders as shall be permissible in accordance with Chapter No.XVI and XVII of the Code of Criminal Procedure. 10. Copy of the order be sent to the trial court for information and compliance. 11. Petition accordingly succeeds.