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Desa Singh Vs. State of H.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1977CriLJ535
AppellantDesa Singh
RespondentState of H.P. and anr.
Cases ReferredIn Gopal Krishan v. State
Excerpt:
- c.r. thakur, j.1. shri desa singh, proprietor of d.m. desa singh majith mandi, amritsar has challenged the order dated 4-4-1974 whereby the learned chief judicial magistrate., kulu ordered the petitioner to be impkiaded as an accused under the provision of section 20-a of the prevention of food adulteration act, (shortly called the act) and the order dated 15-1-1975 whereby the learned magistrate ordered that a charge under section 16(1)(a)(i) read with section 7 of the act be framed against shri desa singh.2. shri r p. sharma, who was posted as food inspector in kulu in september, 1972, purchased three packets of kashmiri mirch as sample from shri vijay kumar on 30-9-1972 on payment of rs. 3.45, the sample as required under the law, was sent to the public analyst who found the same to.....
Judgment:

C.R. Thakur, J.

1. Shri Desa Singh, proprietor of D.M. Desa Singh Majith Mandi, Amritsar has challenged the order dated 4-4-1974 whereby the learned Chief Judicial Magistrate., Kulu ordered the petitioner to be impkiaded as an accused under the provision of Section 20-A of the Prevention of Food Adulteration Act, (shortly called the Act) and the order dated 15-1-1975 whereby the learned Magistrate ordered that a charge under Section 16(1)(a)(i) read with Section 7 of the Act be framed against Shri Desa Singh.

2. Shri R P. Sharma, who was posted as Food Inspector in Kulu in September, 1972, purchased three packets of Kashmiri Mirch as sample from Shri Vijay Kumar on 30-9-1972 on payment of Rs. 3.45, The sample as required under the law, was sent to the Public Analyst who found the same to contain living insects. The Food Inspector, therefore, filed a complaint against Vijay Kumar under Section 7 read with Section 16 of the Act.

3. It appears that the plea of Shri Vijay Kumar was that he had purchased the Mirch from the shop of Iswar Singh and Sons, Amrifoar. On that the learned Magistrate ordered Ishwar Singh to be impleaded as a party under the provision of Section 20-A of the Act, but later on the learned Magistrate discharged Shri Ishwar Singh and, thereafter ordered that summons to be issued to implead the present petitioner under provision of Section 20-A of the Act, Simultaneously he ordered M/s, Sham Sunder and Bros, who were suppliers of this Kashmiri Mirch to be summoned as witness in this case, as it was submitted by Shri Vijay Kumar that he had purchased the DEGI MIRCH from M/s. Desa Singh and Sons, Majith Mandi, Amritsar, through M/s. Sham Sunder and Brothers, Commission Agents, Majith Mandi, Amritsar. Shri Sham Sunder was examined but he denied that the Mirch supplied to Vijay Kumar was purchased from M/s. Desa Singh but that he had purchased that Mirch from Ishwar Singh and Sons and the same was not supplied by him. Thereupon the learned Magistrate ordered that Sham Sunder was not coming out with the truth to help the Court and impleaded him under Section 20-A of the Act, by his order, dated 19-8-1974 against which Sham Sunder went in revision to the learned Sessions Judge who, however, quashed the order as being unjustified and without legal basis.

4. Shri H K. Paul, appearing on behalf of the learned Advocate General, raised a preliminary objection that the orders were interlocutory and as such the petition was barred under Section 397(2) of the Code of Criminal Procedure. The learned Counsel in support 'of his submission that the orders were interlocutory, has placed reliance on Hori Ram Singh v. Emperor AIR 1939 FC 43 : 40 Cri LJ 468 which says that judgment in a criminal case means a judgment of conviction or acquittal. The term does not include an interlocutory order. Hence the order of the High Court directing a rehearing of the criminal appeal by the Sessions Court is neither a judgment nor a final order within the meaning of Section 205(1).

5. The learned Counsel for the petitioner submits that it is not a revision petition under Section 397 of the Code rather it is a petition under Section 482 of the Code and Article 227 of the Constitution of India. According to the learned Counsel, there has been an abuse of the process of the Court inasmuch as the Magistrate in the absence of any evidence before him which was a sine qua' non for taking action under Section 20-A of the Act, had issued the summons and, therefore, this order in the absence of any evidence on the record, was without jurisdiction and as such the High Court had ample and wide powers to set aside such an order which is without 'jurisdiction under its inherent powers and powers of superintendence as required under Article 227 of the Constitution. Section 20-A reads as under:

20-A. Powers of Court to implead manufacturer, etc. Where at any time during the trial of any offence under this Act alleged to have been committed by any person not being the manufacturer, distributor or dealer of any article of food, the Court is satisfied on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then, the court may, notwithstanding anything contained in Sub-section (1) of Section 351 of the Code of Criminal Procedure, 1898, or in Section 20 proceed against him as though a prosecution had been instituted against him under Section 20.

6. The reading of this section would reveal that a manufacturer, distributor or dealer also can be proceeded against under Section 20-A if during the trial of any offence under the Act alleged to have been committed by any person, the court is satisfied on evidence adduced before it that such manufacturer, distributor or dealer is concerned with that offence. The learned Counsel for the petitioner has invited my attention to the statements of witnesses, the copies of which he has filed on the record. From. the copies of the statements, it is nowhere proved that Shri Desa Singh is connected with the commission of the offence, no matter that the packets of sample purchased bore the trade-mark DMD. Before the manufacturer, the distributor and the vendor could be proceeded against with the accused who sold the sample it must be alleged that the manufactured food was adulterated when the manufacturer passed it on to the distributor and it was also adulterated when the distributor passed it on to the vendor and it was also adulterated when the vendor sold It to the consumer. (See : 1975CriLJ1091 . But here in the instant case there is no evidence worth the name to connect Shri Desa Singh with the commission of the offence except that it contained the trade-mark D.M.D. Shri Sham Sunder through whom these packets were alleged to have been purchased, has denied the sale of this to Shri Vijay Kumar. Therefore, in the absence of any evidence on the record against Shri Desa Singh, proprietor, the Magistrate had no jurisdiction to summon and proceed against him. The order being without jurisdiction, therefore, it is wrong to say that it is an interlocutory order and a revision petition is barred under the provision of Section 397 of the Code. In fact in such a case, the High Court has got inherent powers to rectify the wrong done in such a category of the case. It has been held in R.P. Kapur v. State of Punjab : 1960CriLJ1239 that some of the categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised are:

(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.

(ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not.

(iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.

Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point.

7. It would, therefore, be apparent that the order which is without jurisdiction as already mentioned above, cannot stand. In Gopal Krishan v. State, ILR (1975) Him Pra 341 it had been held that the order to stand trial with the original accused passed by the Magistrate on the application of the accused without adducing any evidence, was unwarranted. In the instant case also there is no evidence, and merely on the application of Vijay Kumar, Shri Desa Singh was summoned and impleaded as an accused. Therefore, this order is without jurisdiction and cannot stand.

8. In this view of the matter, I, therefore, accept the petition and quash the order passed by the learned Chief Judicial Magistrate, Kulu summoning and thereafter framing the charge against the petitioner. The petitioner, Desa Singh is hereby discharged.


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