Jai Pal vs State of Haryana

S.D. Bajaj, J.

This sample of cow''s milk collected by the Government Food Inspector from the petitioner at Karnal around 10.00 A.M. on 15th June, 1984 was found on analysis to be adulterated. The petitioner arrayed as accused in Criminal complaint No. 24/3 of 1984 was therefore, prosecuted for it in the court of learned Chief Judicial Magistrate, Karnal. The complaint was filed on 2071984. Initially the case was tried as summary case. Learned trial court, however, framed the charge on 22nd August, 1988.

Grievance of the petitioner in Criminal Misc. No. 8336M of 1988 is that the lapse attributed to him was to be tried by following the summary procedure and that needful having not been done, proceedings are liable to be quashed and the accused to be acquitted.

Similar situation came to be considered by this court earlier in Pawan Kumar v. State of Haryana and others, 1989 (II) Prevention of Food Adulteration Cases 36 and Kuldip Singh v. State of Punjab and another, 1990 Criminal Law Times 116 wherein it was held :

The learned counsel for the revision petitioner submitted that the learned trial Magistrate had erred in law in trying the present revision petitioner by warrant procedure instead of trying him summarily as warranted by law and procedure. Reliance in this respect has rightly been placed by the learned counsel for the revision petitioner on Full Bench authority of this court in Budh Ram v. State of Haryana, wherein dealing with this aspect of the case, it was held as under :

"It is quite clear that the Legislature intended that all offences under Section 16 (1) of the Act be tried summarily by specially authorised Magistrates, unless such a Magistrate in writing opines that the accused deserved greater dose of sentence and so he be tried in accordance with the procedure prescribed by Criminal Procedure Code."

It was further held in the afore cited authority

"Once the Judicial Magistrates are specially so empowered, then they cannot discriminate between one case and the other and they &hail have to try every offence under Section 16 (1) in the first instance in a summary way and if a given offence is such that the offender requires to be awarded greater sentence, than could be awarded as a result of summary trial, then in that case after passing such an order in writing, would be entitled to try such offenders in accordance with the procedure prescribed by the Code for the given offence."

The aforesaid authority in Budh Ram''s case was followed by a Single Bench in Nand Lal v. State of Haryana, and it was held that the trial held as a warrant case was not in accordance with law.

Admittedly, in the present case the trial Magistrate neither applied his mind that greater sentence was to be awarded to the offender than could be awarded as a result of the summary procedure, nor any such order was passed in writing. It was, thus, obligatory on the part of the trial Magistrate to try the accused summarily, and follow appropriate procedure in that regard. Thus, in the instant case, the trial which was held as a warrant case, was not in accordance with, law.

Faced with this situation, it was contended on behalf of the State that no such objection was taken before the trial court, or before the appellate court, and such an objection cannot be permitted to be raised for the first time in revision petition.

Failure on the part of the trial court to follow procedure meant for summary trial in the instant case, goes to the root of the case. Thus, the trial, which is held in violation of the procedure, would be illegal, and not merely irregular, as contended on behalf of the State. This aspect of the case constitutes substantial point of law, which can certainly be permitted to be raised for the first time in revision petition. The objection raised on behalf of the State in this respect hardly seems tenable in the circumstances of the case.

In the instant case trial of the petitioner commenced on 20th Jury, 1984. The petitioner has already undergone agony of trial for more than six years. In these circumstances, I do not find it necessary to remand the case for retrial. For the foregoing reasons, I accept this Criminal Misc., quash complaint Annexure PI and set aside the impugned order Annexure P2. In result Criminal Miscellaneous succeeds and is allowed. Accused Jai Pal is acquitted.

JUDGMENT accordingly