Whether court will proceed against accused if no prima facie case is made out against him?

Equivalent Citation: 1997CriLJ563

IN THE HIGH COURT OF PUNJAB AND HARYANA

Criminal Misc. No. 3240-M of 1996

Decided On: 01.08.1996

Appellants: Subhash Chander
Vs.
Respondent: State of Punjab

Hon'ble Judges/Coram:
P.K. Jain, J.

Food Adulteration - Framing of charge - Section 16(i)(a) read with Section 7 of Food Adulteration Act, 1954 - Chief Judicial Magistrate passed order of framing of charge for offence under Section 16(i)(a) read with Section 7 of Act against Petitioner - Hence, this Petition - Whether, order passed by Chief Judicial Magistrate was liable to be quashed - Held, impugned order passed by Chief Judicial Magistrate did not refer to any material brought out on record, on basis of which it was concluded that prima facie case to frame charge for an offence under Section 16(i)(a) read with' Section 7 of Act was made out against Petitioner - Chief Judicial Magistrate has passed impugned order in mechanical way - There was no material on record to show prima facie that article of food in question was manufactured by Petitioner or polypack in which article in question was packed was sold by Petitioner to Non-applicant - Food Inspector had not collected documentary evidence which was available before filing of complaint - Hence, his oral testimony was not enough to make out prima facie case against Petitioner - Testimony of PW1 would not warrant conviction of Petitioner for offence under Section 16 read with Section 7 of Act - Thus, impugned order passed by Chief Judicial Magistrate was quashed - Petition allowed.

"Court shall not proceed against Accused person unless prima facie case is made out against him by relevant material documentary evidence."

1. This petition has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for quashing the order dated 23-12-1995 (Annexure P.4), passed by the Chief Judicial Magistrate, Hoshiarpur, whereby a charge for an offence under Section 16(i)(a) read with Section 7 of the Food Adulteration Act (for short 'the Act') has been framed against the petitioner.

2. The admitted facts are that on 23-6-1994, Shri Dhani Ram (PWI), the Food Inspector, Hoshiarpur, purchased 600 grams of Mirch powder (chillies) for Rs. 28.86 Paise for the purposes of analysis from Vinod Kumar carrying on business under the name and style of M/s. Lachhman Kohlu Char, Hoshiarpur. At that time, Vinod Kumar produced a bill No. 87 dated 17-5-1994 and disclosed under Section 14 of the Act that he had purchased the said Mirch Power from M/s Lalji Karyana Store, Khanpuri Gate, Hoshiarpur, the manufacturer of the said article. A copy of the notice on Form VI was sent to the said manufacturing concern stated to be owned by the present petitioner. On analysis by the Public Analyst, as per his report (Annexure P.2), the sample was found to have been adulterated. Consequently, a complaint (Annexure P. 1) was filed against both, Vinod Kumar from whom the sample was purchased and Subhash Chander, the petitioner, who is stated to be the manufacturer of the said article of food under Section 16 of the Act. Both these accused were summoned by the Chief Judicial Magistrate.

3. After recording pre-charge evidence and hearing the prosecution as well as the defence, the Chief Judicial Magistrate passed the following order:-

Heard, From the perusal of the evidence and documents, prima facie a case for framing of charge under Section 16(i)(a) read with Section 7 of the Food Adulteration Act is made out against the accused, the same has been read over and explained to the accused, in reply to which, he pleaded not guilty ' and claimed trial. The accused also want to further cross-examine the P. witness. To come up on 27-2-1996.
Sd/-
CJM/23.12.1995.

Feeling aggrieved, the petitioner has challenged the above order on the ground that from the pre-charge evidence recorded by the Chief Judicial Magistrate, no prima facie case was made out against him and as such the petitioner ought to have been discharged.

4. In reply, it has been stated that the trial Court after being satisfied from the precharge evidence and other material on the record has come to a under Section 16 read with Section 7 of the Act has been made out and as such the impugned order does not suffer from any infirmity. It has been further stated that the petitioner is the manufacturer of the article of Food in question arid Vinod Kumar had produced the bill issued by the petitioner which amounts to a warranty within the meaning of Section 14 of the Act and as such the petitioner has been rightly charged for the said offence as being the manufacturer.

5. I have heard the learned counsel for the parties and have perused the record. Section 245 of the Code, so fur as it is material for our purposes, reads as under:-

245. When accused shall be discharged:- If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

In the present case the complaint (Annexure P. 1) shows that Shri Dhani Ram, Food Inspector, who had purchased the sample in question, is the only witness regarding the factual position of the case. Dr. A. C. Sood has been cited as a witness in whose presence the sample is stated to have been taken. The Public Analyst has been cited as a witness to prove his report. Sh. Chhinder Pal and Shri Chaman Lal, who are officials of the office of Civil Surgeon, Hoshiarpur, have been cited to produce the record of the sample in question. Thus, it would be seen that for the purposes of Section 245 of the Code Shri Dhani Ram (PWI) is the sole witness who has been examined and cross-examined. There is no other witness that remains to be examined in this respect.

6. From the bare perusal of Section 245 of the Code, as reproduced above, it is evident that before framing a charge, it is the paramount duty of the Court to consider the evidence produced by the prosecution/complainant and to see whether the same constitute prima facie case against the accused. The scope of Section 245 of the Code does not speak about meticulous consideration of evidence, but it definitely mandates a sincere and honest application of mind to she allegations made and that the Court shall find out that the grounds or ingredients of an offence alleged are made out. This Section does not contemplate a mechanical approach, but it expects a reasonable and judicious approach to know the existence of grounds and establishment of a prima facie case. If there is no prima facie case, or sufficient and strong grounds to proceed against the accused are not made out and the allegations are baseless or the proceedings are mainly aimed at harassing an accused, under such circumstances it is just and proper for the Court to discharge the accused and thus prevent abuse of the process of the Court. In Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra MANU/SC/0080/1971 : AIR 1972 SC 545 : 1972 Cri LJ 329.

It cannot be said that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person's liberty and it cannot be said that the Court automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in Section 173 consider it proper to institute the case. The responsibility of framing the charges is that of the Court and has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.
Held that the trial Court rightly came to the conclusion that the prosecution for the offence charged was groundless. Order of discharge made by him was eminently just and fair order. The High Court was in error in reversing that order.

Bearing this principle in mind, it is to be considered whether the evidence led by the complainant in the present case satisfies that test.

7. Turning to the case in hand, it may be stated at the outset that the impugned order passed by the Chief Judicial Magistrate, as reproduced above, is evidently a sketchy one and does not refer to any material brought out on the record, on the basis of which it has been concluded that a prima facie case to frame charge for an offence under Section 16(i)(a) read with' Section 7 of the Act has been made out against the present petitioner. It appears that the Chief Judicial Magistrate has not applied his judicial mind at all and has passed the impugned order in a mechanical way.

8. The case against the petitioner is that he is the manufacturer of the article of food which was purchased by the Food Inspector (PW1) from Vinod Kumar (Non-applicant) who had produced a bill No. 187 dated 17-5-1994 purported to have been issued by the petitioner. In this respect, the complainant has examined himself in precharge evidence. After deposing to the factual position mentioned in para 3 of his complaint (Annexure P. I). in his cross-examination he has deposed as under:-

The sample in question was Mirch powder (Kutti Murch). The mirch was packed in a polythene bag and quantity of Mirch was one kilogram. There was no print on packet showing that the sample in question was concerned with M/s. Lalji Karyana Store Khanpuri Gate, Hoshiarpur. There was not any code number, batch number, address of the manufacturer on the sample in question and the said sample was not as per Rule 32 of the Food Adulteration Rules. Volunteered:-There was a slip inside the packet and the name of the manufacturer Lalji Karyana Store was written. And that slip was not taken into possession by the sampling authority. Date of manufacturing and the date of expiry of the food article was not mentioned, on the slip. On the slip name of Subhash Chander Khullar was not written. Accused !No. 1 had produced bill and from that bill I came to know that accused No. 2 is the manufacturer. There was not any name mentioned in the bill which 1 took from the vendor i.e. accused No. ' 1 Accused No. I had disclosed me about the name of Subhash Chander that is why accused No. 2 was impleaded as accused in present case. I did not take that bill in my custody at that time, but I signed on that bill and returned the same to accused No. 1 The said facts were not mentioned by me in form No. VI.

From a perusal of this testimony, it becomes evident that there is no material on the record to show prima facie that the article of food in question was manufactured by the petitioner or the polypack in which the article in question was packed was sold by the petitioner to Vinod Kumar. According to the Food Inspector, there was a slip inside the packet on which the name of the manufacturer was written as Lalji Karyana Store, but interestingly that slip was not taken into possession by the Food Inspector for the reason best known to him. In the absence of the best evidence, the oral testimony of the Food Inspector does not carry any weight in this context. Still further, he did not take into possession the so-called bill produced by Vinod Kumar at the time when the Food Inspector purchased the sample from him. That bill could have been some sort of evidence to prove as to whether the article of Food in question was ever sold by the present petitioner to Vinod Kumar. When the best evidence in the shape of documentary evidence was available and the Food Inspector has not collected that best evidence before filing of the complaint, his oral testimony is not enough to make out a prima facie case that the Mirch powder in question was manufactured by the petitioner, more particularly at the time when the polypack does not contain the name or the description of the manufacturer at all.

9. Another factor which gains importance and has come out in the cross-examination of the Food Inspector, is that some inquiry was pending against this Food Inspector at Hoshiarpur and the present', petitioner along with others had appeared as a witness and deposed against him. This admission reveals an oblique motive on the part of the Food Inspector (PW1) to implicate the petitioner in this case. In his cross-examination he stands exposed. There is not an iota of evidence on the record to prove that the petitioner is the manufacturer of the article of food in question or that it was the petitioner who had sold this article: of food to Vinod Kumar. The testimony of Dhatti Ram (PW1), even if unrebutted, would not warrant the conviction of the petitioner for an offence under Section 16 read with Section 7 of the Act. If on the existing material, there is no ground for presuming the petitioner to be guilty, then there can hardly be any point in framing a charge against him and going through the formality of a trial and then acquitting him. Such a course would merely result in unnecessary harassment to the petitioner without serving the cause of justice.

10. For the reasons mentioned above, this petition is allowed. The impugned order (Annexure P.4) dated 23-12-1995, passed by the Chief Judicial Magistrate, Hoshiarpur, is hereby quashed qua the petitioner and he is discharged in the complaint case No. PFA-10 of 1994, pending in the said Court. The Chief Judicial Magistrate shall be free to proceed with the trial against the other accused.

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