High Court
Legal Reasoning
9 1010-CrWP-263-08.odtbefore summoning of the accused. Magistrate has tocarefully scrutinize the evidence brought on record and mayeven himself put questions to the complainant and hiswitnesses to elicit answers to find out the truthfulness of theallegations or otherwise and then examine if any offence isprima facie committed by all or any of the accused.”17.In paragraph No.29, It has been observed thus;“29.The complaint does not show what is the role of theappellants in the manufacture of the beverage which is saidto be adulterated. The only allegation is that the appellantsare the manufacturer of bottle. There is no averment as tohow the complainant could say so and also if the appellantsmanufactured the alleged bottle or its contents. Thepreliminary evidence on which the 1st respondent relied inissuing summon to the accused/appellant also does not showas to how it could be said that the appellants aremanufacturers of either the bottle or the beverage or both.There is another aspect of the matter. The CentralGovernment in the exercise of their powers under Section 3of the Essential Commodities Act, 1955.”18.In M/s. Pepsi Food Ltd. (supra), the Hon’ble SupremeCourt laid down the law that the powers of judicial interferenceunder Article 227 of the Constitution may extend to quashing an 10 1010-CrWP-263-08.odtimpugned order on the ground of an error apparent on the face ofthe record. The power of interference is limited to seeing that thetribunal functions within the limits of its authority. Thus, we haveto examine the power of the High Court under Articles 226 and227 of the Constitution and Section 482 of the Code of CriminalProcedure.19.As discussed above, the application was specific that on theday of the incident, the factory was not under the control of thepetitioner. It was leased to M/s. Ramnath Glass Containers Pvt. Ltd.for ten years. Apart from that, the statement of the Manager ofM/s. Ramnath Glass Containers Pvt. Ltd. Was also available beforethe Court. However, it seems that the learned Magistrate did notgo through the papers submitted with the charge sheet.20.In view of the law laid down by the Hon’ble Supreme Court inLalankumar (supra), such an order is no order in the eye of law.It seems that due to the non-application of the mind of theMagistrate, the petitioner was unnecessarily invited to face thetrial, which is not a matter of course.21.Considering the facts of the case on record, the Court is ofthe view that it is a fit case to exercise powers under Articles 226and 227 of the Constitution and Section 482 of the Cr.P.C. Primafacie, it is seen that on the day of the incident the factory was notunder the control and management of the petitioner. His 11 1010-CrWP-263-08.odtcontention was supported by the lease deed that was included inthe case. As observed above, the impugned order of issuance ofprocess/summons was mechanically passed, and it does not reflectthe application of mind,the criminal writ petition deserves to beallowed. Hence, the order:- ORDERi)The Criminal Writ Petition is allowed.ii)The impugned the judgment and order of the learned DistrictJudge-1 & ASJ, Shrirampur, passed in Criminal RevisionNo.38 of 2004, dated 05.01.2008, confirming the order ofthe learned Judicial Magistrate First Class, Shrirampur,passed below application Exhibit-16 in S.T.C.No.51 of 2001,dated 21.07.2004, refusing for recalling issuance of processagainst the petitioner under Section 23 of the Petroleum Act,1934, is quashed and set aside.iii)The petitioner stands discharged from the trial.iv)Rule made absolute in above terms. ( S. G. MEHARE ) JUDGErrd
Arguments
1 1010-CrWP-263-08.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 263 OF 2008Tilaknagar Industries Ltd.Tilaknagar,(through Shri. M. Raman Kutty Nair,Manager, Age 57 years,Legal and Admn. TilaknagarIndustries, Shrirampur,Dist. Ahmednagar..PetitionerVersusThe State of MaharashtraThrough Shrirampur Police Station,District Ahmednagar..RespondentMr. N. S. Choudhary, Advocate for the Petitioner;Ms. M. N. Ghanekar, A.P.P. for RespondentCORAM :S. G. MEHARE, J.DATE:14-08-2024PER COURT :-1.Heard the learned counsel for the petitioner and the learnedA.P.P. for the respondent.2.The petitioner has impugned the judgment and order of thelearned District Judge-1 & ASJ, Shrirampur, passed in CriminalRevision No.38 of 2004, dated 05.01.2008, confirming the order ofthe learned Judicial Magistrate First Class, Shrirampur, passedbelow Exhibit-16 in S.T.C.No.51 of 2001, dated 21.07.2004,refusing for recalling of issuance of process against the petitionerunder Section 23 of the Petroleum Act, 1934. 2 1010-CrWP-263-08.odt3.It is an interesting case wherein the charge sheet was filedagainst the petitioner along with the co-accused on the basis ofthe raid laid by the police machinery in the factory which waspreviously owned by the petitioner. The Investigating Officer hadrecorded the statement of the Manager, who categorically statedthat the factory was under the control and management of UmeshG. Mehata, a resident of Mumbai. He categorically stated to thepolice that the factory was leased to Umesh G. Mehta, in 2000.The copy of the lease deed executed between the petitioner whowas running the factory under the name and title “TilaknagarIndustries Ltd., Tilaknagar” and one “M/s. Ramnath GlassContainers Pvt. Ltd.” was on also record. The incident happened on04.01.2001. The lease was for ten years from 04.04.1992 till03.04.2002.4.After submitting a report under Section 173 of the Code ofCriminal Procedure (“Cr.P.C.”, for short), the petitioner approachedthe learned Magistrate, and filed an application to recall the orderof issuance of process.5.In the body of application Exhibit-16, it has been mentionedthat the Glass Bottle Manufacturing Factory situated at Tilaknagar,Taluka Shrirampur, was originally owned by accused No.1 i.e.Tilaknagar Industries Ltd. The Plant was managed/operated byTilakanagar Industries Ltd. till March 1992. The Glass Bottle Plant 3 1010-CrWP-263-08.odtwas then leased to Ramnath Glass Container Private Ltd., in March1992 for ten years, and since then, it has been under theirmanagement. Apart from that, the grounds of the requirement oflicense-based on quantity to be stored or stocked in pursuance ofthe Petroleum Act, 1934 were also raised.6.The learned Magistrate discussed relevant provisions of theAct and held that the stock was exceeding the limit as providedunder Section 7 (ii) of the Petroleum Act, 1934 and Rules 2002.Since the stock exceeded the limit, the license was essential. Theaccused did not possess a licence on the date of the registration ofthe offence against them for storage of petroleum class ‘C’exceeding 45,000 liters, and accordingly, he rejected applicationExhibit-16 by his order dated 21.07.2004.7. The learned Sessions Judge recorded the findings that thelearned Magistrate has no inherent jurisdiction to recall process orsummons. It is not necessary for him to consider the other aspectsof the case, whether there was sufficient material to issue theprocess or summons, but it is suffice to say that the Magistrate hasno power to recall the process or summons. 8.The learned counsel for the petitioner submits that thestatement of the Factory Manager and the lease deed of thefactory to M/s. Ramnath Glass Containers Pvt. Ltd. was availablebefore the Court. However, the trial Court issued the process by a 4 1010-CrWP-263-08.odtstamped order and issued a summons to the petitioner. Though,he pleaded that, at the relevant time, the factory was not underhis control and management, it was not considered. He furtherargued that the learned Sessions Court did not consider that thematerial available with the investigation Officer, though thosewere brought to the notice of the Sessions Court with a view toapprise him of the legality of the order of issuing process.However, the learned Sessions Court, without considering the factspleaded in the application, dismissed the petition only on theground of maintainability. He submits that the nomenclature doesnot decide the fate of the proceeding. The entire contents of theapplication should be considered. Though, there was a legalimpediment to the jurisdiction of the Magistrate from recalling theorder, the factual aspect ought to have been considered by thelearned Sessions Court, and the matter could have been decidedunder revisional jurisdiction.9. To bolster his arguments, he relied on the following cases;i)M/s. Pepsi Foods Ltd. and another vs. SpecialJudicial Magistrate and others, reported in(1998) 5 SCC 749;ii)Sunil Bharti Mittal vs. Central Bureau ofInvestigation, (2015) 4 SCC 609.iii)Lalankumar Singh and others vs. State ofMaharashtra, 2022 LiveLaw (SC) 833; 5 1010-CrWP-263-08.odt10.He, referring to the ratio in Lalankumar (supra) vehementlyargued that the order of issuance of process is not an emptyformality. The Magistrate is required to apply his mind as towhether sufficient ground for proceeding exists in the case or not.The formation of such an opinion is required to be stated in theorder itself. The order is liable to be set aside if no reasons aregiven therein while coming to the conclusion that there is a primafacie case against the accused. No doubt the order need notcontain detailed reasons. A reference in this respect could bemade to the judgment of this Court, in the case of Sunil BhartiMittal (supra).11.In sum and substance, he submits that the learned SessionCourt had ignored the pleading in the application before thelearned Magistrate that the factory was not under his control atthe relevant time and only dealt with the provisions of thePetroleum Act. The sessions Court could consider the applicationas a whole. Hence, the petition deserves to be allowed.12.Per contra, the learned A.P.P. has strongly argued that in viewof the ratio in Mathew’s case, the Criminal Court has no power torecall the order of issuance of process However, the learnedMagistrate, in fact, exceeded its jurisdiction in recording findingson facts. There were major technical glitches in the order of thelearned Magistrate. Hence, the learned Sessions Court has 6 1010-CrWP-263-08.odtcorrected it and rightly dismissed the petition. Since there were nofindings about the issuance of the process, the learned SessionsJudge could not remit the case. She submits that the only optionfor the petitioner was to approach the Court for discharge on thegrounds raised in the application.13.The impugned order of the learned Judicial Magistrate issilent about the fact of having no control of the petitioner over thefactory on the date of registration of the offence. A copy of thelease and the statement of the Manager were available with theMagistrate, but it seems that, the learned Magistrate, since thematter was filed by the State, has mechanically passed the orderof issuing process. The Court impressed the stamp on the record,filled the blank spaces and issued the summons to the petitioner. Itwas the only order, the learned Magistrate passed the orderissuing the process. The learned Magistrate was passing theserious orders of issuing process without application of mind. Itcould be safely said that he did not examine the papers availablewith the case and mechanically signed below the stamp. The orderof issue process, as observed by the Hon’ble Supreme Court inLalankumar (supra) is not a mechanical process. The order mustreflect an application of mind by the learned Magistrate andconsideration of the material produced in the charge sheet.Detailed reasons are not required in the order, but at least thereshould be some reasons mentioned in the application that prima 7 1010-CrWP-263-08.odtfacie evidence is available against the petitioner to issue process.14.Admittedly, the nomenclature of Exhibit-16 was ‘for recall ofprocess’ only. On reading the application, there was materialbefore both Courts to examine the facts, as such who was inmanagement and control of the factory on the date of the incident.The record includes the statement of the witness/Manager ofRamnath Glass Containers Ltd and the copy of the lease deedbetween Ramnath Glass Container Private Limited and TilaknagarIndustries Ltd. Both courts ought to have gone through thismaterial. Though the order of the learned Magistrate wasdiscussing the legal provisions, it was possible for the RevisionalCourt to go into the facts and material placed before the Court,and instead of considering the nomenclature of the application, itought to have considered the legality and validity of the orderissuing process. The learned Sessions Judge could have done thisfor the reason that the pleadings in the application were two fold;firstly, on the facts, and secondly, on the legal issue.15.The Hon’ble Supreme Court in the case of M/s. Pepsi FoodLtd. (supra), in paragraph No.26 observed thus;“26.Nomenclature under which petition is filed is not quiterelevant and that does not debar the Ccourt from exercisingits jurisdiction which otherwise it possesses unless there isspecial procedure prescribed which procedure is mandatory. 8 1010-CrWP-263-08.odtIf in a case like the present one the Ccourt find that theappellants could not invoke its jurisdiction under Article 226,the Court can certainly treat the petition one under Article227 or Section 482 of the Code. it may not however, be lostsight of that provisions exist in the Code of revision andappeal but sometime for immediate relief Section 482 of theCode or Article 227 may have to be resorted to for correctingsome grave errors that might be committed by thesubordinate courts. …..”16.In paragraph No.28, It has been observed thus;“28.Summoning an accused in a criminal case is a seriousmatter. Criminal law cannot be set into motion as a matterof course. It is not that the complainant has to bring onlytwo witnesses to support his allegations in the complaint tohave the criminal law set into motion. The order of theMagistrate summoning the accused must reflect that he hasapplied his mind to the facts of the case and the lawapplicable thereto. He has to examine the nature ofallegations made in the complaint and the evidence bothoral and documentary in support thereof and would that besufficient for the complainant to succeed in bringing chargehome to the accused. It is not that the Magistrate is a silentspectator at the time of recording of preliminary evidence