Court No. - 29
Case :- CRIMINAL REVISION No. - 3792 of 2011 Revisionist :- Smt. Chitra Devi Opposite Party :- State Of U.P. And Anr. Counsel for Revisionist :- Dharmendra Singhal Counsel for Opposite Party :- Govt. Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. This Court while entertaining this revision in the year 2011 passed the following order:-
"Affidavit filed today is taken on record.
Learned counsel for the revisionist submitted that at the time of inspection of the Fair Price Shop of the revisionist, only 881 liters of kerosene oil was found whereas according to the Stock Register, 1160 liters should have been stocked and there was shortage of 279 liters of kerosene oil. The stock was never seized. On this very allegations, the licence of the Fair Price Shop was cancelled by the District Magistrate and the said order has been quashed by this Court in Civil Misc. Writ Petition No. 37654 of 2009 vide order dated 29.11.2010.
Learned AGA prays for and is granted four weeks' time to file counter affidavit. Rejoinder affidavit may be filed within two weeks thereafter.
List thereafter before the appropriate Court.
Till the next date of listing, further proceedings in Case No. 728 of 2007 (State Vs. Smt. Chitra Devi), under Section 3/7 of Essential Commodities Act, P.S. Iglas, District- Aligarh pending in the court of Addl. Chief Judicial Magistrate, Court No. 1, Aligarh shall remain stayed."
2. Sections 216, 227 and 228 Cr.P.C. reads as follows :
"Section 216 in The Code Of Criminal Procedure, 1973 216. Court may alter charge.
(1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
Section 227 in The Code Of Criminal Procedure, 1973
227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
Section 228 in The Code Of Criminal Procedure, 1973
228. Framing of charge.
Section 228 in The Code Of Criminal Procedure, 1973
(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
3. The impugned order dated 25.8.2011 was passed without considering the report of the Supply Inspector. The Supply Inspector had opined in favour of the petitioner. One more circumstance is that the petition preferred by the petitioner was allowed and her shop was restored and, therefore, also the order of cognizance was bad.
4. The order of cognizance cannot be said to be bad is the submission of learned AGA as since 2007 the cognizance was taken.
5. It is submitted by the learned Advocate for the revisionist that all the documents were placed on record before the Trial Court and application was given for discharge. The learned Trial Judge while rejecting the application failed to consider the order of this Hon'ble Court and the the report of the concerned authority which were in favour of the petitioner, which goes to show that the basis of prosecution was no longer in existence. The edifice of the prosecution crumbled on the basis of the stock register. The learned Trial Judge did not taken into consideration these documents and has held that no such documents were produced before the concerned Judge and, therefore, has refused to discharge the accused.
6. I am unable to subscribe to the submission made by learned Advocate appearing on behalf of State that as the order of the High Court was not placed before the authorities concerned, no fault can be found with its order and this Court may not exercise its jurisdiction under Section 397/401 of Cr.P.C. As according to the learned counsel for State, prima facie case was made out against the accused and, therefore, there was no question of discharging the revisionist. No reply till date has been filed by the State in this revision, though enough opportunity was given. Once the finding of facts is that there was no malpractice and the suspension of the fair price shop was held to be bad by this Court. The continuation of the Trial was nothing else but furthering the agony of lady. The provision of Section 227 of Cr.P.C. ought to have been invoked by the learned Judge.
7. The revision is allowed. The proceedings in Case No. 728 of 2007 ( State Vs. Smt. Chitra Devi ) under Section 3/7 of Essential Commodities Act, P.S. Iglas, District Aligarh is quashed.
Order Date :- 30.11.2018/Mukesh