Indraj vs State of Haryana

V.S. Aggarwal, J.

By this common order three petitions namely Criminal Misc. Nos. 10457M of 1989, 10454M of 1989 and 8527M of 1988 can conveniently be disposed of together. The sole question that arises for consideration is as to whether the proceedings pending before the learned trial court are liable to be quashed because of inordinate delay of the pending proceedings coupled with the orders passed changing the procedure for warrants to summons case after years of trial.

In the case of Indraj (Criminal Misc. No. 10457M of 1989) the relevant facts are that on 31.3.1985 the Food Inspector found the petitioner in possession of 25 Kilogram of cow''s milk for sale. The samples were drawn in accordance with the procedure prescribed. The bottles were duly sealed after adding formalise. The report of the Public Analyst indicated that it was adulterated. The learned Judicial Magistrate before whom the complaint was filed framed a charge against the petitioner. The trial proceeded as prescribed for a warrants case. From 31.3.1986 to 15.1.1988 the trial continued. On 15.1.1986 (1988) the learned Sub Divisional Judicial Magistrate passed the following order :

"From the perusal of case file it reveals that from very beginning this case is being tried as a warrant case without assigning any reason whatsoever. Section 16A of the P.F.A. Act which is mandatory in nature, in view of several pronouncements of our Hon''ble High Court including 1987(2) FAC 95 (Nand Lal v. State of Haryana), envisages the trial under section 16(1) of the P.F.A Act to be in a summary way except where 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. As this case is being tried as a warrant case without assigning any reason, so such procedure is violative of mandatory provision and as such I hereby now order fresh trial of this case in a summary way. To come upon 19.2.1988 for giving notice to the accused".

The petitioner challenges the said order and seeks quashing of the complaint alleging that after so many years, the procedure could not be changed. There has been inordinate delay in the trial and, therefore, the proceedings may be quashed.

The facts of other cases are identical. In the case of Naranjan Dass (Criminal Misc. No. 10454M of 1989) the sample was taken of turmeric. On 27.8.1986 it also was found to be adulterated. In a similar fashion, after the trial proceeded as a warrants case, on 4.3.1988 the learned Judicial Magistrate converted the trial into one of a summary case.

In the case of Rajinder Parshad (Criminal Misc. No. 8527M of 1988) the sample had been taken of turmeric on 23.8.1988. Charge was framed on 12.12.1986. On 25.4.1988 the learned Judicial Magistrate directed that fresh trial should proceed in a summary way.

As pointed above the argument advanced was that the trial has proceeded as a warrants case and keeping in view the delay that has taken place coupled with the fact that whole procedure of trial has been changed, the proceedings should be quashed.

In the facts of the cases, the said argument indeed has merit and cannot be ignored. It is of utmost important that proceedings in all criminal cases should be expedited and completed at the earliest. We know from the decision in the case of Hussainara Khatoon and others v. Home Secretary, State of Bihar, Patna, AIR 1979 SC 1360 that speedy trial is a necessary ingredient of Article 21 of the Constitution. While referring to the same the Supreme Court held :

"Now obviously procedure prescribed by law for depriving a person of his liberty cannot be ''reasonable, fair or just'' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as ''reasonable, fair or just'' and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21."

The same question has been considered more often than once by this Court in the case of Pawan Kumar v. State of Haryana and others, 1989(II) Prevention of Food Adulteration Cases 36. The sample had been taken of chilly powder in May, 1984. The trial proceeded as a warrants case but in 1988 the learned Judicial Magistrate ordered that it be tried in a summary way. Keeping in view the said fact and the inordinate delay, the proceedings were quashed and in paragraph 36 of the Court held :

"The proposition now convassed in this Court by Shri H.N. Mehtani, learned counsel for the petitioner came to be considered earlier in Ram Chander v. State of Haryana, 1985(II) Prevention of Food Adulteration Cases 331 ; Chatter Bhuj v. State of Haryana, 1985(ii) Prevention of Food Adulteration Cases 205, Ram Kishan v. State of Haryana, 1986(II) Prevention of Food Adulteration Cases 150 and Nand Lal v. State of Haryana, 1987(II) Prevention of Food Adulteration Cases 95 wherein it was repeatedly held that appropriate order to be passed by the learned trial court in such circumstances would be of acquittal of the accused and not of retrial according to summary procedure as ordained by the learned trial court in its impugned order of August 2, 1988."

Same view had been taken in the case of Nand Lal v. State of Haryana, 1987(II) Prevention of Food Adulteration Cases 95. While dealing a similar question in paragraph 8 the Court held :

"In this case the sample was taken on 16th June, 1983 and the prosecution of the petitioner started on 28 July, 1983 and the trial Court decided the case on 9th December, 1986. The appeal before the first appellate Court was filed on 1st December, 1986, and decided on 30th March, 1987. Thus the petitioner has already been under harassment for a period of about four years and in my view it will be in the interest of justice to acquit him instead of having a fresh trials and thereafter an appeal or revision, if any. For the mistake in procedure, the petitioner cannot be held responsible in any manner."

As a consequence thereto the proceedings were quashed. Subsequently, in the case of Ramesh Kumar v. State of Haryana, 1991(2) RCR 87 the proceedings were quashed. More recently in the case of Dharambir v. State of Haryana, Criminal Misc. No. 771M of 1992, decided on 10.1.1997 and in the case of Mulakh Raj v. State of Haryana, Criminal Misc. No. 7232M of 1996, decided on 13.1.1997 on almost identical facts the proceedings were quashed.

There is no reason to take a different view. The years have rolled by but the petitioners had to wait for the ultimate. After 1213 years, it would be totally unjust to direct them to face the trial afresh.

On behalf of the State it had been urged that some delay has occurred because of the pending miscellaneous petitions in this Court. But the said argument is totally devoid of any merit. This is for the reason that while the Supreme Court in the case of Hussainara Khatoon and others (supra) referred to trial, the expression "trial" was considered by the Patna High Court in the case State of Bihar v. Ramdaras Ahir and others, 1985 Crl. L.J. 584. It held that it would bring within its sweep the appeals that are filed. In paragraph 17 the Court held :

"Therefore, there seems to be no option, but to hold that the word ''trial'' in the context of the constitutional guarantee of a speedy trial includes within its sweep a substantive appeal provided by the Code to the High Court whether against conviction or against acquittal. Thus, it would follow that the constitutional right of speedy trial envisages an equally expeditious conclusion of a substantive appeal and not merely a technical completion of the proceedings in the original court alone."

There is no ground to take a different view. In fact it would be worthwhile to add that the trial are still pending before the learned Judicial Magistrates. If some delay occurs, as a result of filing of the petitions in this Court, necessarily it is the delay of the trial. More than 1213 years as pointed out above have passed. To say that delay should only be in the trial court would be incorrect. The inescapable conclusion, thus, would be that proceedings must be quashed. Keeping in view that trial has been ordered to be started de novo coupled with the delay that has occurred.

For these reasons, the petitions are allowed. The complaints and the subsequent proceedings pending before the learned Judicial Magistrates are quashed.