AT JAIPUR BENCH, JAIPUR v. The State of Rajasthan

Order

24/11/2008 PRESENTS HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. Prem Kumar Sharma, for the petitioners. Mr. B.K. Sharma, Public Prosecutor for the State. By the Court: (Oral). This criminal misc. petition has been filed by the petitioners seeking to challenge the order dated 24.02.1995 passed by the learned Civil Judge (Senior Division) and Additional Chief Judicial Magistrate, Shahpura, District Jaipur, whereby he has taken cognizance against them. The petitioners have prayed that the said order, passed by the learned Magistrate, be quashed and set aside. Further, it has been prayed that all subsequent proceedings sought to be undertaken in pursuance of the cognizance order may also be quahsed and set aside. It has also been prayed that the complaint itself be dismissed.

The brief facts of the case are that on 18.08.1994, a sample of Dimethoate 30% EC Batch No. 810 was taken from the premises of M/s. Bhagwati Agro's, Delhi Road, Shahpura, 2 District Jaipur. The said firm was a dealer of the manufacturer M/s. Northern Minerals Ltd., Daultabad Raod, Gurgaon (Haryana). All the petitioners are connected with M/s. Northern Minerals Ltd., in the manner as mentioned in the cause title. The date of expiry of the sample taken by the Agriculture Officer (Plant Protection), Shahpura was August 1995. The sample taken from M/s. Bhagwati Agro's was sent for chemical examination to the Insecticide Analyst, State Pesticide Testing Laboratory, Durgapura, Jaipur. The State Laboratory, vide its report dated

17.10.1994, declared the sample of Dimethoate as substandard. On receiving the said report, a complaint was filed in the Court of Civil Judge (Senior Division), Shahpura against the accused petitioners and four other persons. After having received the complaint, the learned Magistrate took cognizance against the accused persons vide his order dated 24.02.1995. The order of cognizance reads as under:- "आज यह चालान कृ (cid:466)ष अिधकार(cid:547) क(cid:551) ओर के ए पी पी ने अिभयु(cid:416)गण मै0 भगवती एमोस (cid:465)द(cid:227)ली रोड, लआमीनारायण मै0 ओम शेडस(cid:91) (cid:465)द(cid:227)ली गेट कोटपुतली ओम ूकाश गोयल, मै. नारदन िमनर(cid:227)स, गुडगाँव, ौी राम गोपाल अमवाल, अ(cid:509)ण कु मार धानुका, ौीमती पुंपा देवी के (cid:466)व(cid:509)(cid:424) धारा 29(1) ए इ(cid:219)से(cid:200)ट(cid:547) साइड ए(cid:200)ट 1968 म(cid:581) पेश (cid:465)कया | अिभयु(cid:416) गण के (cid:466)व(cid:509)(cid:424) उपरो(cid:416) अपराध के अंतग(cid:91)त ूसं(cid:163)ान िलया गया | ूकरण दज(cid:91) र(cid:468)ज. हो अिभयु(cid:416)गण को ज(cid:464)रये सै(cid:224)पल तलब होकर (cid:465)द. 17.6.95 को पेश है, कृ (cid:466)ष अिधकार(cid:547) क(cid:551) ओर से दर. हाजर(cid:547) माफ़(cid:551) पेश हयी जो ःवीकार क(cid:551) जाकर ए पी पी को पैरवी क(cid:551) इजाज़त (cid:465)द गयी |

3. The learned Public Prosecutor has raised an objection saying that the petitioners, in this petition, have sought to be challenged the order of cognizance, which is revisable and as ु 3 such, they should have preferred a revision petition under Section 397 Cr.P.C., before the appropriate Court. The submission made by the learned Public prosecutor has substance because the principle of law has now been well settled in that respect, in the case of Sessions Judge, Sawai Madhopur vs Dashrath Singh, 1996 RCC 592. The learned Division Bench, while answering a reference, has held that order of cognizance is an order final in nature, and therefore, it is revisable before the competent court. However, this matter can be considered on the merits also.

3. A perusal of the impugned order of cognizance goes to show that the learned Magistrate has passed the same in a summary manner. The order nowhere discloses the fact that the learned Magistrate had perused the material on record. All the objections, being raised before this Court, should have been considered by the learned Magistrate. In fact, he should have gone through the material on record, which was available upto the passing of the impugned order in the month of February,

1995. As a matter of fact, the order of cognizance passed by the learned Magistrate is non-speaking and without due application of mind. Therefore, in my opinion, the order of cognizance deserves to be set aside by this Court.

4. It would be relevant to mention here that the Hon'ble Supreme Court in the case of Narmada Prasad Sonkar @ Ramu vs. Sardar Avtar Singh Chabara & Ors., (2006) 9 SCC 601, had held as under:- 4 “3. Having perused the material placed before us, we are satisfied that no objection can be taken to the order of the High Court quashing the order dated 30.7.2005, Annexure 1 to the petition, but there is no justification for quashing the criminal complaint itself. If the Magistrate had not followed the procedure and failed to apply his mind as required by law, the order issuing process could be quashed, but the Magistrate should be directed to reconsider the matter and pass fresh order in accordance with law.

4. In our view, the High Court should not have quashed the complaint itself. We, therefore, set aside the order of the High Court to the extent it quashed the complaint itself and direct the Magistrate to hear the parties afresh and proceed in accordance with law.”

5. The learned counsel for the petitioner has primarily raised three contentions, namely, that neither from the complaint nor otherwise, it is disclosed that the two petitioners against whom process has been issued were the persons incharge of the firm or the business. In other words, he has submitted that there has been violation of Section 33 of the Insecticide Act, 1968. Secondly, he has submitted that there has been gross violation of Section 24 of the Act of 1968 because the accused had made a request, very much in the time prescribed, that the sample should be sent for chemical examination but the same has not been done. Therefore, the petitioners had been deprived of the legal right of having the sample examined by the Laboratory. Thirdly, the learned counsel for the petitioners has submitted that the sanction in this case has not been granted in accordance to law. He has submitted that the order of sanction is 5 rather a reply in the ordinary course and not a sanction under law to initiate the criminal proceeding in this case. In this regard, he has pointed out that even the required details have not been given in so-called sanction order so as to hold that it was an order of sanction in accordance to law.

6. As has been noted above, a perusal of the impugned order of cognizance goes to show that there has been total non- application of mind by the learned Magistrate and he has also not considered the material on record. So far as the quashing of criminal complaint as sought by the petitioners is concerned, in my considered view, the order of cognizance has already been passed subsequently and the petitioners have themselves challenged the same order in this very petition then the question of quashing of the complaint at the stage does not arise for the simple reason that the proceedings before the court below have already gone a step further.

7. However, for the reasons given hereinabove, I am of the considered opinion that the impugned order of taking cognizance passed by the learned Magistrate on 24.02.1995 deserves to be quashed and set aside. Further, the learned Magistrate is directed to consider the matter afresh, in accordance to law.

8. Consequently, this criminal misc. petition is allowed with the aforesaid directions. (RAGHUVENDRA S. RATHORE),J. tikam/-Jr.P.A.s-2