AI Structured Summary
Not yet generated for this judgment
Judgment
Heard the parties.
The present quashing petition has been preferred to quash the order taking cognizance dated 19.03.1998 along with entire proceeding as passed in Trial No. 2172/2018 arising out of Complaint Case No. 580/1996 by which learned SDJM, Sikrahana at Dhaka, East Champaran took cognizance for the offences punishable under Sections 323 and 379/34 of the IPC and also issued permanent warrant vide order dated 11.07.2018 against petitioners.
This case is of year 1996.
The prosecution case in brief is that complainant, Manoj Kumar, filed a complaint on 12.12.1996 before the learned S.D.J.M., Sikrahana at Motihari, alleging that on 08.12.1996, while waiting for a bus at Dhaka Bus Stand along with the accused persons, a political discussion took place. During the discussion, accused Shiv Pujan Pandey allegedly abused Ex-Chief Minister Kalyan Singh. When the complainant objected, the accused persons allegedly abused and assaulted him with fists and slaps and tore his clothes. The complainant further alleged that during the incident, he lost ₹200/-, while accused Sunil Kumar allegedly took away ₹500/- from him. Consequently, the complaint was filed.
It is submitted by learned counsel appearing on behalf of the petitioners that out of minor altercation, these petitioners were implicated with the present case while waiting for a bus alongwith complainant. It is submitted that learned Jurisdictional Magistrate took cognizance on 19.03.1998 for the offences punishable under Sections 323 and 379/34 of the IPC and issued summon against the petitioners, though it was never served upon. It is pointed out that thereafter the complainant also left parivi of this case and he never appeared. It is submitted that summon was never served upon petitioners, but bailable warrant was issued and in same manner without service of bailable warrant, non-bailable warrant was also issued against the petitioners. It is submitted that at no point of time proceedings of learned trial court came into the knowledge of these petitioners and finally by impugned order dated 11.07.2018 taking reference of the administrative letter of this High Court as issued on 27.01.1983 through letter no. 952-79, the proceeding was dropped and both these petitioners were declared as permanent absconder.
It is submitted by learned counsel that cognizance was taken in very mechanical manner without considering the circumstances. It is submitted that while waiting for a bus a minor altercation took place and out of said the present false allegation was raised and cognizance was taken. It is submitted that with such superficial allegation, summoning petitioners for facing a criminal trial is bad in the eyes of law and in support of this learned counsel relied upon the legal report of Supreme Court as available through legal report of Pepsi Foods Ltd. And Another Vs. Special Judicial Magistrate and Others, [(1998) 5 SCC 749].
At this stage, it would be apposite to reproduce para no. 29 of the Pepsi Foods Case supra, which is as under:-
“29.No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants. If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused". We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the Magistrate as well, as the Magistrate will not give any different conclusion on an application filed under Section 245 of the Code. The High Court says that the appellants could very well appear before the court and move an application under Section 245(2) of the Code and that the Magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding that there are sufficient grounds for proceeding against the appellants. If we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants do not make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such allegations. The allegations in the complaint merely show that the appellants have given their brand name to "Residency Foods and Beverages Ltd." for bottling the beverage "Lehar Pepsi". The complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturers of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as Accused 3. The preliminary evidence on which the first respondent relied in issuing summons to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both. There is another aspect of the matter. The Central Government in the exercise of their powers under Section 3 of the Essential Commodities Act, 1955 made the Fruit Products Order, 1955 (for short "the Fruit Order"). It is not disputed that the beverage in question is a "fruit product" within the meaning of clause (2)(b) of the Fruit Order and that for the manufacture thereof certain licence is required. The Fruit Order defines the manufacturer and also sets out as to what the manufacturer is required to do in regard to the packaging, marking and labelling of containers of fruit products. One of such requirements is that when a bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying the licence number and the special identification mark of the manufacturer to be displayed on the top or neck of the bottle. The licence number of the manufacturer shall also be exhibited prominently on the side label on such bottle [clause (8)(1) (b)]. Admittedly, the name of the first appellant is not mentioned as a manufacturer on the top cap of the bottle. It is not necessary to refer in detail to other requirements of the Fruit Order and the consequences of infringement of the Order and to the penalty to which the manufacturer would be exposed under the provisions of the Essential Commodities Act, 1955. We may, however, note that in Hamdard Dawakhana (Wakf) v. Union of India? an argument was raised that the Fruit Order was invalid because its provision indicated that it was an Order which could have been appropriately issued under the Prevention of Food Adulteration Act, 1954. This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the a manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof.”
Upon perusal of record, it appears that after recording of SA, complainant never turned up before learned trial court. Similarly certified copies of the learned trial court orders categorically suggest that service of bailable warrant and non-bailable warrant was never served upon petitioner. Complaint is also not supported by affidavit and moreover occurrence is of year 1996.
In view of aforesaid discussed factual and legal scenario, impugned cognizance order dated 19.03.1998 and further the impugned order dated 11.07.2018 declaring both the petitioners absconder arising out of Trial No. 2172/2018 and Complaint Case No. C-580/1996, pending before learned Sub-Divisional Judicial Magistrate, Sikrahna at Dhaka, East Champaran is hereby quashed and set aside qua both petitioners with consequential proceedings, if any.
Hence, this application stands allowed.
TCR (Trial Court Records), if any, be returned to the learned Trial Court alongwith the copy of this judgment.