Bhushan Kumar vs State of Haryana

S.K. Jain, J. (Oral)

The petitioner has moved this Court vide this petition under Section 401 of the Code of Criminal Procedure for setting aside the order of the Chief Judicial Magistrate, Karnal and the charge sheet dated August 31, 1988 as also the proceedings.

The petitioner was tried for an offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act by the learned Chief Judicial Magistrate, Kernal. During the course of trial, the learned Chief Judicial Magistrate found that the case ought not to have been tried as a warrant case rather it should have been tried summarily, therefore, he framed the charge afresh on August 31, 1988.

The learned counsel for the petitioner submits that the petitioner has been harassed for a considerably long time. It was obligatory for the trial Court to summarily try the complaint as has been held by this Court in Budh Ram and another v. State of Haryana, 1985(1) Recent Criminal Reports 510 : 1984 (II) FAC 179. There appears to be substance in the submission made. It is evident that the sample was seized on September 16, 1983 whereafter the complaint was filed which was tried as a warrant case. It was during the course of trial that the Chief Judicial Magistrate found that the complaint ought to have been tried summarily and therefore, he had framed the charge afresh on August 31, 1988. On the facts and circumstances of the case it appears that the petitioner had to undergo mental agony because of the wrong procedure adopted by the trial Magistrate. It is settled rule that the accused should not suffer because of the mistake of the Court. In these circumstances of the case, since the petitioner has suffered mental agony and harassment for a long period because of the wrong procedure adopted by the Court, I think it will meet the ends of justice if this Revision Petition is allowed and the order dated August 31, 1988 is set aside. I order accordingly.