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2022 DIGILAW 2502 (RAJ)

Raman Lal v. State Of Rajasthan

2022-09-22

DINESH MEHTA

body2022
JUDGMENT Dinesh Mehta, J. - By way of present petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), the petitioner has challenged the proceedings pending against him in criminal case No. 392/2016 in the court of learned Chief Judicial Magistrate, Jaisalmer (hereinafter referred to as 'the trial court'). 2. The petition has been filed essentially on the ground that the petitioner cannot be tried for the same offence for which he has once been tried and acquitted. According to the petitioner, such proceedings are not only contrary to Section 300 (1) of the Code but also amount to violation of Article 20 of the Constitution of India. 3. Backdrop facts relevant for the present purposes are that pursuant to receiving information from secret informer on 25.07.2007, the Additional Superintendent of Police, Jaisalmer searched petitioner's shop running by the name of M/s. Gayatri Trading Company and found some misbranded and adulterated ghee stored/stocked in the shop. 4. In furtherance of the inspection so made, an FIR No. 220/2007 dated 26.08.2007 was registered at Police Station Jaisalmer for the offences punishable under Sections 420, 472, 482, 483, 487 and 488 of the Indian Penal Code (hereinafter referred to as 'IPC') so also under Sections 102, 103 & 104 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as 'the TMM Act'). 5. In relation to the very same search, the food inspector also came into action and instituted a complaint under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the PFA Act') which was registered as Case No. 117 of 2009 in the Court of Chief Judicial Magistrate, Jaisalmer. 6. The petitioner faced the trial in this case being case No. 117/2009 and was ultimately acquitted by the trial Court per viam its order dated 10.06.2019. 7. The proceedings in furtherance of the FIR No. 220 dated 26.08.2007 which was filed in relation to the offences under IPC and TMM Act, however, remained pending before the court. 8. At the time of framing of charges, the petitioner raised objection that charges cannot be framed, as he has already been acquitted of the same allegations by virtue of the order dated 10.06.2019 passed by the same Court. 8. At the time of framing of charges, the petitioner raised objection that charges cannot be framed, as he has already been acquitted of the same allegations by virtue of the order dated 10.06.2019 passed by the same Court. Petitioner's such contention did not find favour and charges were framed against the petitioner by the trial court per viam its order dated 11.10.2021. 9. Petitioner challenged the order dated 11.10.2021 by way of revision under Section 397 of the Code which was registered as revision petition No. 6/22 in the Court of Additional District and Sessions Judge, Jaisalmer (hereinafter referred to as 'the revisional Court'). 10. During the course of arguments of revision, petitioner's contention was that the proceedings cannot be sustained in the face of the provisions of Section 300 of the Code and reliance was placed upon the judgment of Hon'ble the Gujarat High Court in the case of Ashok Bhai Kannu Bhai Rawani & ors v. State of Gujrat & ors. (Cri. Misc. Application No. 6991/2014), but the revisional court rejected the contention of the petitioner inter alia observing that the case before Hon'ble the Gujarat High Court was a complaint case whereas, petitioner's case was not a complaint case. 11. Mr. Khatri, learned counsel appearing for the petitioner argued that continuation of proceedings in the present factual backdrop is per se illegal and contrary to the mandate of Section 300 of the Code. Because, for very same incident and search, the impugned FIR was lodged and based on those very facts, a complaint was also filed by the food inspector, which has resulted in acquittal by order dated 10.06.2019. 12. Learned counsel for the petitioner relied upon the judgment of Hon'ble the Supreme Court in the case of Kolla Veera Raghav Rao v. Gorantla Venkateswar Rao & Anr.; reported in 2011 Cr.L.R. SC 260 to support his argument that for the same set of facts, the petitioner cannot be prosecuted again. 13. Mr. 12. Learned counsel for the petitioner relied upon the judgment of Hon'ble the Supreme Court in the case of Kolla Veera Raghav Rao v. Gorantla Venkateswar Rao & Anr.; reported in 2011 Cr.L.R. SC 260 to support his argument that for the same set of facts, the petitioner cannot be prosecuted again. 13. Mr. Singh, learned Public Prosecutor on the other hand argued that the petitioner was acquitted on the technical ground that he did not get an opportunity of sending the sample for retesting under Section 13(2) of the PFA Act, whereas the fact that the petitioner was found stocking and selling misbranded and adulterated ghee is an offence under the provisions of IPC and therefore, the petitioner cannot avoid trial under the provisions of IPC, particularly when the FIR was lodged instantaneously. 14. Heard learned counsel for the parties and perused the material available on record. 15. It is an admitted fact that the search was conducted in petitioner's shop on 25.07.2007 in furtherance whereof, the FIR in question being FIR No. 220 was registered in Police Station Jaisalmer and simultaneously, a complaint was also filed by the food inspector under the provisions of PFA Act. It is also not in dispute that in the complaint for the offences of PFA Act, the competent court has acquitted the petitioner per viam its order dated 10.06.2019. 16. Such being the position, on whatever ground, whether technical or substantial, if the petitioner has been acquitted and the same is still subsisting, in the opinion of this Court, the petitioner cannot be tried for the same allegations which may constituted offence(s) punishable under the Indian Penal Code. 17. The Provisions of Section 300 of the Code which are reproduced herein below, are clear in this regard. "Section 300 of the Code of Criminal Procedure. Person once convicted or acquitted not to be tried for same offence. 17. The Provisions of Section 300 of the Code which are reproduced herein below, are clear in this regard. "Section 300 of the Code of Criminal Procedure. Person once convicted or acquitted not to be tried for same offence. (1) 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. (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of section 220. (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first- mentioned Court is subordinate. (6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, (10 of 1897) or of section 188 of this Code. Explanation.-The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section." 18. A bare reading of Section 300 sub-Section (1) shows that it uses the expression "convicted or acquitted". Explanation.-The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section." 18. A bare reading of Section 300 sub-Section (1) shows that it uses the expression "convicted or acquitted". Since, the expression used in Section 300 (1) of the Code is "conviction or acquited" after the completion of trial, in the opinion of this Court, the criminal proceedings against him impugned in the present petition cannot be continued, more particularly for the same facts. 19. This Court finds that the aforesaid view is duly fortified by the judgment passed by Hon'ble the Supreme Court in the case of Kolla Veera Raghav Rao (supra). 20. As an upshot of discussion foregoing, the petition is allowed and impugned proceedings of the case No. 392/2016 pending before the Chief Judicial Magistrate, Jaisalmer are hereby quashed. 21. The stay application also stands disposed of.