David Joseph & Ors. v. The Food Inspector

BAIL SLIP The Appellant/Accused Viz., David Joseph(A2), M.Viswanathan(A3)said in Crl.R.C.No.223/07 in C.C.No.215/06, dated 10.10.2006 onthes file of the Judicial Magistrate, Sattyamangalam was directedto be released on bail as per order of the Court dated 13.2.2007and made in Crl.M.P.No.1/07 in Crl.R.C.No.223/07.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:6.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.223 of 20071.David Joseph2.M.Viswanathan... Petitioners/Accused No.2 and 3vs.The Food Inspector,Ariyappampalayam,Special Village Panchayat,Government Primary Health Centre,Ukkaram,Erode District.... Respondent/Complainant Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 10.10.2006 passed by the Judicial Magistrate,Sathyamangalam, in C.C.No.215 of 2006.For Petitioners : Mr.KamadevanFor Respondent : Mr.Hasan Md.Jinnah,A.P.P. O R D E R Animadverting upon the order dated 10.10.2006 passed by theJudicial Magistrate, Sathyamangalam, this criminal revision case isfocussed.2. The long and short and the epitome of the germane factsabsolutely necessary for the disposal of this criminal revision https://hcservices.ecourts.gov.in/hcservices/ case would run thus:The Food Inspector lodged the complaint with the Magistrate.From the records it could be understood that the Magistrateintended to follow the warrant procedure as contemplated underChapter XIX-B of Cr.P.C. (b) The learned Magistrate issued summons to the accused andsecured their presence. In the presence of accused, the evidenceof P.W.1-the complainant was recorded on 26.9.2006 and on28.9.2006, the Magistrate framed charges as against all the threeaccused. There is nothing to indicate and exemplify, demonstrateand display that the charges were read over to the accused and theplea of the accused was recorded. However, surprisingly therecords would reveal that in respect of three persons, in theformat relating to Section 281 Cr.P.C, their names were foundfilled up, but there is no indication as to why the remainingcolumns were left blank. I am at a loss to understand as to whythe Magistrate Court should obtain signatures in blank papers,which practice should be deprecated in unmistakable terms. To saythe least, avoiding strong meat, the Magistrate had no control overthe Court proceedings in this case.(c) It is also found from the record that straight away theMagistrate resorted to Section 313 examination, wherein certainexcerpts from the P.W.1's evidence were put to the accused, and theaccused accepted those versions. It is also found recorded at theend of examination under Section 313 Cr.P.C. that a question wasput to the accused whether they intend to recall P.W.1, for which,the accused stated 'no'. Once again the procedure adopted by theMagistrate is wrong because while examining the accused underSection 313 Cr.P.C., the question of asking them as to whether theywant P.W.1 to be recalled does not arise at all and it is quiteobvious and axiomatic.(d) It appears, the Magistrate imposed the following sentence,after recording the conviction as under:-Case No.accusedOffencePunishmentC.C.No.215of 2006A1 to A3Sec.7(ii) and 16(1)(A)(i) r/w.Sec.2(f)(k) and Rule 32(e)(f)(i) of the Preventionof Food AdulterationActThree monthsrigourousimprisonment each andfine of Rs.500/-each, in-default, onemonth rigourousimprisonment3. Being aggrieved by and dissatisfied with the order of thelower Court this revision is filed on various grounds, the warp andwoof of them would run thus: https://hcservices.ecourts.gov.in/hcservices/ At the instance of the compliant the accused were beguiled andbamboozled, floored and flummoxed, confused and nonplussed,obfuscated and confounded, thereby they have been made to pleadguilty, hoping that they would get mere sentence of fine. Whereas,on hearing the sentence of imprisonment, the accused felt very muchdepressed and dejected and hence this revision has been filed.4. The point for consideration is as to whether the procedurefollowed by the Magistrate is perverse and not in accordance withlaw and whether there is any illegality in the judgement of thelower Court.5. The learned counsel for the revision petitionersreiterating the grounds of revision would entreat and implore, prayand request that the accused/revision petitioners were lulled intothe belief as though only fine would be imposed by the Magistrateand that without understanding the implications and consequences,the revision petitioners did not contest the matter andfurthermore, the procedure adhered to by the Magistrate is not inaccordance with law.6. To the risk of repetition, without being tautalogous, Iwould point out that the Magistrate miserably failed to follow theprocedure as contemplated under law. It is quite clear from thePrevention of Food Adulteration Act itself that as per Section 16-Aof the Act, the offences referred to in this case could be triedsummarily. Section 16-A of the Prevention of Food AdulterationAct is extracted hereunder for ready reference:"16-A. Power of Court to try cases summarily –Notwithstanding anything contained in the Code of CriminalProcedure, 1973(2 of 1974), all offences under sub-section(1) of Section 16 shall be tried in a summary way by ajudicial Magistrate of the first class specially empoweredin this behalf by the State Government or by a MetropolitanMagistrate and the provisions of Sections 262 to 265 (bothinclusive) of the said Code shall, as far as may be, applyto such trial:Provided that in the case of any conviction in asummary trial under this section, it shall be lawful for themagistrate to pass a sentence of imprisonment for a term notexceeding one year:Provided further that when at the commencement of, orin the course of, a summary trial under this section itappears to the magistrate that the nature of the case issuch that a sentence of imprisonment for a term exceedingone year may have to be passed or that it is, for any otherreason, undesirable to try the case summarily, theMagistrate shall after hearing the parties, record an orderto that effect and thereafter recall any witness who may https://hcservices.ecourts.gov.in/hcservices/ have been examined and proceed to hear or rehear the case inthe manner provided by the said Code."7. However, the Magistrate, presumably, as per the currentpractice, thought fit to resort to Chapter-XIX-B of Cr.P.C. Inaccordance with the said procedure, she initially and that toocorrectly examined P.W.1 on 26.9.2006 before framing charge and atthat stage, it appears the accused did not express their intentionto cross-examine P.W.1. On 28.9.2006 charge was framed as againstall the three accused. However, as pointed out above, there isnothing to indicate that the charges were read out and the accusedwere asked to plead as per Section 246(2) of Cr.P.C. 8. In this connection, I would like to extract hereunderSection 246 Cr.P.C."246. Procedure where accused is not discharged – (1) If,when such evidence has been taken, or at any previous stageof the case, the Magistrate is of opinion that there isground for presuming that the accused has committed anoffence triable under this Chapter, which such Magistrate iscompetent to try and which, in his opinion, could beadequately punished by him, he shall frame in writing acharge against the accused.(2) The charge shall then be read and explained to theaccused, and he shall be asked whether he pleads guilty orhas any defence to make.(3) If the accused pleads guilty, the Magistrate shallrecord the plea, and may, in his discretion, convict himthereon.(4) If the accused refuses to plead, or does not pleador claims to be tried or if the accused is not convictedunder sub-section (3), he shall be required to state, at thecommencement of the next hearing of the case, or, if theMagistrate for reasons to be recorded in writing so thinksfit, forthwith, whether he wishes to cross-examine any, and,if so, which, of the witnesses for the prosecution whoseevidence has been taken.(5) If he says he does so wish, the witnesses named byhim shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (6) The evidence of any remaining witnesses for theprosecution shall next be taken, and after cross-examinationand re-examination (if any), they shall also be discharged.(emphasis supplied)9. However, the Magistrate simply resorted to examination of https://hcservices.ecourts.gov.in/hcservices/ the accused under Section 313 Cr.P.C. as pointed out above. It istherefore glaringly and explicitly, palpably and pellucidly clearthat the Magistrate failed to adhere to the procedure contemplatedunder the Code of Criminal Procedure. It is one thing to say thata case could be tried summarily, nonetheless it is another thing topoint out that once the Magistrate desires to treat a case as awarrant case instituted on complaint, then naturally that procedureshould necessarily be followed. But, here my above discussionsupra would highlight and spotlight the fact that the learnedMagistrate failed to adhere to proper procedure, warrantinginterference by this Court.10. The learned counsel for the revision petitioner, addingfuel to the fire, would point out that the complainant himself madethe accused to believe that only fine will be imposed and that alsomade the accused to give certain answers in that manner during thetime of examination under Section 313 of Cr.P.C. 11. At this juncture, I would like to point out that higherforum like the High Court should not look askance at or withsuspicious eye the recordings made by the lower Court. Whateverendorsements or recordings made by the lower Court should be takenas such, unless there are extraordinary circumstances to doubtthem. 12. Here, as highlighted supra, the procedure followed by theMagistrate is far from satisfactory. The Magistrate Court was notexpected to obtain signatures of the accused in blank papers andformats and that such illegal practise lends support to thesubmissions made by the learned counsel for the revisionpetitioners. I take it as an opportunity to record here that noMagistrate Court should entertain the practice of gettingsignatures of accused in blank formats whatever might be the workload. While judiciary is deprecating the misuse of power byvarious authorities, the lower Courts should be doubly careful inseeing that there is no misuse or abuse of power by them. Obtainingthe signature of any person in blank papers cannot be tolerated bythe High Court. Hence, in these circumstances, I am of theconsidered opinion that the conviction recorded and the sentenceimposed as against all the three accused, even though only two havefiled this revision, should be set aside and accordingly, it is setaside. On receipt of a copy of this order, the Magistrate shallstrictly follow the procedure as contemplated under the Code ofCriminal Procedure and proceed further with the matter from thestage immediately next after the framing of charges, strictly inaccordance with Chapter XIX-B of Cr.P.C.,and dispose of the matterwithin four months from the date of receipt of copy of this orderand report compliance.13. It is not readily known as to whether one other accused,namely the first accused, Muthuvel, who is a non-revisionpetitioner, is in jail or not. If he is in jail, he shall be https://hcservices.ecourts.gov.in/hcservices/ released forthwith and he shall be allowed to participate in thetrial. But, on the other hand, if he had already undergone thesentence, his case may be treated as closed and only the case asagainst the revision petitioners herein shall be processed furtheras per law.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmskTo1.The Judicial Magistrate, Sathyamangalam,2.The Chief Judicial Magistrate, Erode.3.The Food Inspector, AriyappampalayamSpecial Village Panchayat,Government Primary Health Centre,Ukkavam, Erode District.4.The Public Prosecutor,High Court, Madras.5.The Section Officer, Criminal Section, High Court, Madras.1 cc To Mr.S.Kamadevan, Advocate, SR.29117Crl.R.C.No.223 of 2007pur(co)pmk.20.7.2009.