Animadverting upon the order dated 10.10.2006 passed by the Judicial Magistrate, Sathyamangalam, this criminal revision case is focussed.
2. The long and short and the epitome of the germane facts absolutely necessary for the disposal of this criminal revision case would run thus:
The Food Inspector lodged the complaint with the Magistrate. From the records it could be understood that the Magistrate intended to follow the warrant procedure as contemplated under Chapter XIX-B of Cr.P.C.
(b) The learned Magistrate issued summons to the accused and secured their presence. In the presence of accused, the evidence of P.W.1-the complainant was recorded on 26.9.2006 and on 28.9.2006, the Magistrate framed charges as against all the three accused. There is nothing to indicate and exemplify, demonstrate and display that the charges were read over to the accused and the plea of the accused was recorded. However, surprisingly the records would reveal that in respect of three persons, in the format relating to
Section 281 Cr.P.C, their names were found filled up, but there is no indication as to why the remaining columns were left blank. I am at a loss to understand as to why the Magistrate Court should obtain signatures in blank papers, which practice should be deprecated in unmistakable terms. To say the least, avoiding strong meat, the Magistrate had no control over the Court proceedings in this case.
(c) It is also found from the record that straight away the Magistrate resorted to
Section 313 examination, wherein certain excerpts from the P.W.1's evidence were put to the accused, and the accused accepted those versions. It is also found recorded at the end of examination under
Section 313 Cr.P.C. that a question was put to the accused whether they intend to recall P.W.1, for which, the accused stated 'no'. Once again the procedure adopted by the Magistrate is wrong because while examining the accused under
Section 313 Cr.P.C., the question of asking them as to whether they want P.W.1 to be recalled does not arise at all and it is quite obvious and axiomatic.
(d) It appears, the Magistrate imposed the following sentence, after recording the conviction as under:-
Case No. accused Offence Punishment C.C.No.215 of 2006 A1 to A3 Sec.7(ii) and 16(1)(A)(i) r/w.Sec.2(f)(k) and Rule 32(e)(f)(i) of the Prevention of Food Adulteration Act Three months rigourous imprisonment each and fine of Rs.500/- each, in-default, one month rigourous imprisonment
3. Being aggrieved by and dissatisfied with the order of the lower Court this revision is filed on various grounds, the warp and woof of them would run thus:
At the instance of the compliant the accused were beguiled and bamboozled, floored and flummoxed, confused and nonplussed, obfuscated and confounded, thereby they have been made to plead guilty, hoping that they would get mere sentence of fine. Whereas, on hearing the sentence of imprisonment, the accused felt very much depressed and dejected and hence this revision has been filed.
4. The point for consideration is as to whether the procedure followed by the Magistrate is perverse and not in accordance with law and whether there is any illegality in the judgement of the lower Court.
5. The learned counsel for the revision petitioners reiterating the grounds of revision would entreat and implore, pray and request that the accused/revision petitioners were lulled into the belief as though only fine would be imposed by the Magistrate and that without understanding the implications and consequences, the revision petitioners did not contest the matter and furthermore, the procedure adhered to by the Magistrate is not in accordance with law.
6. To the risk of repetition, without being tautalogous, I would point out that the Magistrate miserably failed to follow the procedure as contemplated under law. It is quite clear from the Prevention of Food Adulteration Act itself that as per
Section 16-A of the Act, the offences referred to in this case could be tried summarily.
Section 16-A of the Prevention of Food Adulteration Act is extracted hereunder for ready reference:
"16-A. Power of Court to try cases summarily Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), all offences under sub-section (1) of
Section 16 shall be tried in a summary way by a judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial:
Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the magistrate to pass a sentence of imprisonment for a term not exceeding one year:
Provided further that when at the commencement of, or in the course of, a summary trial under this section it appears to the magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code."
7. However, the Magistrate, presumably, as per the current practice, thought fit to resort to Chapter-XIX-B of Cr.P.C. In accordance with the said procedure, she initially and that too correctly examined P.W.1 on 26.9.2006 before framing charge and at that stage, it appears the accused did not express their intention to cross-examine P.W.1. On 28.9.2006 charge was framed as against all the three accused. However, as pointed out above, there is nothing to indicate that the charges were read out and the accused were asked to plead as per
Section 246(2) of Cr.P.C.
8. In this connection, I would like to extract hereunder
Section 246 Cr.P.C.
"246. Procedure where accused is not discharged (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make.
(3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon.
(4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken.
(5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged.
(6) The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged.(emphasis supplied)
9. However, the Magistrate simply resorted to examination of the accused under
Section 313 Cr.P.C. as pointed out above. It is therefore glaringly and explicitly, palpably and pellucidly clear that the Magistrate failed to adhere to the procedure contemplated under the Code of Criminal Procedure. It is one thing to say that a case could be tried summarily, nonetheless it is another thing to point out that once the Magistrate desires to treat a case as a warrant case instituted on complaint, then naturally that procedure should necessarily be followed. But, here my above discussion supra would highlight and spotlight the fact that the learned Magistrate failed to adhere to proper procedure, warranting interference by this Court.
10. The learned counsel for the revision petitioner, adding fuel to the fire, would point out that the complainant himself made the accused to believe that only fine will be imposed and that also made the accused to give certain answers in that manner during the time of examination under
Section 313 of Cr.P.C.
11. At this juncture, I would like to point out that higher forum like the High Court should not look askance at or with suspicious eye the recordings made by the lower Court. Whatever endorsements or recordings made by the lower Court should be taken as such, unless there are extraordinary circumstances to doubt them.
12. Here, as highlighted supra, the procedure followed by the Magistrate is far from satisfactory. The Magistrate Court was not expected to obtain signatures of the accused in blank papers and formats and that such illegal practise lends support to the submissions made by the learned counsel for the revision petitioners. I take it as an opportunity to record here that no Magistrate Court should entertain the practice of getting signatures of accused in blank formats whatever might be the work load. While judiciary is deprecating the misuse of power by various authorities, the lower Courts should be doubly careful in seeing that there is no misuse or abuse of power by them. Obtaining the signature of any person in blank papers cannot be tolerated by the High Court. Hence, in these circumstances, I am of the considered opinion that the conviction recorded and the sentence imposed as against all the three accused, even though only two have filed this revision, should be set aside and accordingly, it is set aside. On receipt of a copy of this order, the Magistrate shall strictly follow the procedure as contemplated under the Code of Criminal Procedure and proceed further with the matter from the stage immediately next after the framing of charges, strictly in accordance with Chapter XIX-B of Cr.P.C.,and dispose of the matter within four months from the date of receipt of copy of this order and report compliance.
13. It is not readily known as to whether one other accused, namely the first accused, Muthuvel, who is a non-revision petitioner, is in jail or not. If he is in jail, he shall be released forthwith and he shall be allowed to participate in the trial. But, on the other hand, if he had already undergone the sentence, his case may be treated as closed and only the case as against the revision petitioners herein shall be processed further as per law.
msk To
1.The Judicial Magistrate, Sathyamangalam