Mahabir vs State of Haryana

Harmohinder Kaur Sandhu, J.

Mahabir has filed this petition under Section 482 Cr.P.C. for quashing of the charge and the proceedings pending against him in the Court of Chief Judicial Magistrate, Karnal, in complaint case "State v. Mahabir" under Section 16(1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ''the Act'').

The brief facts of the case necessary for the disposal of the petition are that on 28th June, 1983, Shri I.N. Sehgal, Food Inspector, Assandh found the petitioner in possession of five tins of Vanaspati, ''Kishan Mark'' Sangrur. He purchased two samples of Vanaspati for analysis from different tins. The samples were got analysed and were found to be adulterated as per report of the Public Analyst. A complaint was then filed in the Court of Chief Judicial Magistrate, Karnal. The trial Court proceeded to try the case by following warrant procedure ignoring the provisions of Section 16(A) of the Act which required the trial of the offence to be held in a summary manner unless it was considered necessary to try the case as warrant case. On 29th February, 1988, the trial Court found that the earlier trial stood vitiated and then a fresh order was passed whereby after expressing opinion that on conviction, the petitioner could be sentenced to undergo imprisonment for more than one year, the Chief Judicial Magistrate, Karnal, decided to proceed against the petitioner by following the procedure laid down for a warrant case. The case was adjourned for precharge evidence and after recording that evidence, the petitioner was charged for an offence punishable under Section 16(1) (a) (i) of the Act on 24.8.1988.

The petitioner pleaded that the provision of Section 16(A) of the Act provided for summary trial and these were mandatory but the procedure for warrant trial was adopted and continued for about four years. The trial Court had no power to quash the earlier proceedings and could not review the order of its predecessor. The petitioner had already faced the agony of trial for abour 51/2 years and de novo trial would further prolong the agony.

In the return filed by the respondent, it was contended that the petitioner himself prolonged the trial. He first evaded the service of summons and then he absented himself from the Court on various hearings. The Vanaspati sample which was taken from his possession was found adulterated and it also contained "Beef Fat". No prejudice had been caused to the petitioner by adopting the procedure of warrant case.

I have heard the learned counsel for the parties.

It was urged on behalf of the petitioner that earlier in this case, the provisions of Section 16(A) of the Act were not complied with which were mandatory. Summary procedure was to be adopted for the trial of the case unless the Magistrate opined in writing that the petitioner deserved greater dose of sentence. There was no such order in writing and it was only after about 41/2 years of the taking of sample that this error was corrected. Correction of error amounted to a review of the order which was not permissible. It was further urged that the petitioner had faced this trial for more than five years and had undergone sufficient harassment and the proceedings were liable to be quashed simply on the ground of inordinate delay in the completion of the trial.

The contentions raised by the learned counsel for the petitioner are not tenable. Simply because error in procedure followed by the Court was corrected subsequently does not warrant quashing of the proceedings. This matter was resolved in Shyam Lal v. State of Haryana and others, 1991(1) Prevention of Food Adulteration Cases 172, wherein it was held as under :

"The rule that once charge is framed the case must end either in acquittal or conviction is subject to well recognised exceptions. Rectification of a procedural mistake is in our view one such exception.

It cannot be laid down that on the passing of the order changing one procedure for another would by itself result in the proceedings being vitiated. We may further point out that even if a certain order which is impugned is quashed, acquittal does not follow as a natural consequence. What normally follows is a trial from the stage at which the impugned order was passed or a fresh trial without the defect which was impugned. It is only on a consideration of the totality of the facts and circumstances of a given case that the High Court may be persuaded to quash the entire proceeding and order acquittal. This does not follow as a corollary to the quashing of an order by which the accused may feel aggrieved."

This authority was relied in Pritam Singh v. The State of Haryana, 1992(1) Recent Criminal Reports 265 , where a Magistrate followed the procedure of warrant case without passing any specific order and subsequently the Magistrate switched over to summary procedure. It was held that it is open to the Magistrate to change the procedure during trial. In the instant case, at first, the trial Court followed the warrant procedure ignoring the provisions of Section 16(A) of the Act but subsequently this error was rectified. The proceedings cannot be quashed simply on the ground that the trial Court was not competent to review the earlier order passed by its predecessor.

So far as the question of delay is concerned, it cannot be doubted that speedy trial is an inalienable fundamental right of a citizen under Article 21 of the Constitution of India and inordinate and excessive delay in the completion of the trial would amount to an abuse of the process of the Court but then the question of delay depends on the consideration and circumstances of each individual case and the determination of the fact as to who was responsible for the delay is most vital. In the present case, the petitioner was chargesheeted on 24.8.1988 after the error in procedure was corrected. He filed the present petition in February, 1989 and the proceedings remained stayed thereafter. Earlier too the petitioner had been evading the process of the Court. Although sample was taken in June, 1983, he did not appear in the trial Cort till 24th September, 1984. He evaded service of summons for more than one year and appeared only when nonbailable warrants were issued. During trial, he absented from Court on 13.1.1986, 1.9.1986 and 17.9.1986. He also contributed to the delay in disposal of the case and cannot take advantage of his own wrong.

for the reasons recorded above, I find no merit in this petition and dismiss the same.