Court No. - 44
Case :- APPLICATION U/S 482 No. - 18800 of 2018 Applicant :- Kesharam And 16 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ashok Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Ashok Kumar Pandey, learned counsel for the applicants, the learned A.G.A. for the State and Mr. Subodh Kumar, who has put in appearance on behalf of the complainant-opposite party No. 2. Learned counsel for the opposite party No. 2 has filed his vakalatnama as well as a counter affidavit in Court today, which is taken on record. Learned counsel for the applicants does not wish to file rejoinder affidavit.
With the consent of the parties, the Court proceeds to decide this application finally.
This application under section 482 Cr. P. C. has been filed challenging the summoning order dated 19.02.2018 passed by the Additional Chief Judicial Magistrate, Court No. 2, Agra, in Complaint Case No. 576 of 2018 (Purusotham Agarwal Vs. Kesharam and others), under sections 420, 406, 120B, 504, 506 IPC, P.S. Hariparwat, District agra, as well as the entire proceedings of the above mentioned complaint case.
Learned counsel for the applicants submits that the impugned summoning order dated 19.2.2018 passed by the Court below is manifestly illegal and without jurisdiction. The Court below while passing the impugned order has failed to exercise its jurisdiction in accordance with law. The Court below has not undertaken the requisite exercise to ascertain how on the basis of the allegations made in the complaint filed by the opposite party No. 2 and the statement of the complainant and his witnesses recorded under section 200/202 Cr. P. C., the applicants could have been summoned. He submits that the Apex Court in the case of Pepsi Foods Ltd. vs. Special Judicial Magistrate and others, reported in 1998 (5) SCC, 749 has deprecated such practice and has further observed that the High Court should in such circumstances exercise its jurisdiction. The following was discussed by the Apex Court in paragraph Nos. 29 and 30 of the aforesaid judgement:-
"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 manufacturer 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 1st 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 the 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 labeling 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 manufacture to be displayed on the top or neck of the bottle. The licence number of 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) DELHI & Anr. vs. The Union of India & Ors. [AIR 1965 SC 1167 = (1965) 2 SCR 192], 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 manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof.
30. It is no comfortable thought for the appellants to be told that they could appear before the court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245 (2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against the. it is certainly one of those cases where there is an abuse of the process of the law and the courts and the High Court should not have shied away in exercising its jurisdiction. Provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. In our view High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it."
Learned counsel for the applicants next submits that the impugned summoning order passed by the Court below is cryptic. He has relied upon the judgement of this Court in the case of Mehboob vs. State of U.P. and another, reported in 2017 (2) JIC, 320, (ALL) (LB), wherein the Court has deprecated the practice of passing cryptic summoning orders. The learned Single Judge upon consideration of the entire gamut of the case law on the point as well as the provisions of Section 200-204 Cr. P. C. observed as follows in paragraph Nos. 10, 11 and 12, which are reproduced herein below:-
"(10) Hon'ble Apex Court has further dealt with the nature of inquiry which is required to be conducted by the Magistrate and referring the case of Vijay Dhanuka (supra) it was held as under:
"14. In view of our answer to the aforesaid question, the next question which falls for our determination is whether the learned Magistrate before issuing summons has held the inquiry as mandated under Section 202 of the Code. The word "inquiry " has been defined under Section 2(g) of the Code, the same reads as follows:
"2. (g) ''inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court,"
It is evident from the aforesaid provision, every inquiry other than a trial conducted by the Magistrate or the court is an inquiry. No specific mode or manner of inquiry is provided under Section 202 of the Code. In the inquiry envisaged under Section 202 of the Code, the witnesses are examined whereas under Section 200 of the Code, examination of the complainant only is necessary with the option of examining the witnesses present, if any. This exercise by the Magistrate, for purpose of deciding whether or not there is sufficient ground for proceeding against the accused, is nothing but an inquiry envisaged under Section 2002 of the Code."
(11) In the present case, the learned Magistrate has not conducted any inquiry so as to satisfy himself that the allegations in the complaint constitute an offence and when considered alongwith the statements recorded and the result of such inquiry. There is ground for proceedings against the petitioners under Section 204 CrPC. There is nothing on record to show that the learned Magistrate has applied his mind to arrive at a prima facie conclusion. It must be recalled that summoning of accused to appear the criminal court is a serious matter affecting the dignity self-respect and image in the society. A process of criminal court cannot be made a weapon of harassment.
(12) Learned Magistrate has passed a very cryptic order simply by saying that the statement of complainant as well as witnesses recorded under Sections 200 and 202 CrPC are perused and accused are summoned such order per se itself illegal which could not stand the test of law."
On the aforesaid legal premise, it is urged by the learned counsel for the applicants that there is absolutely no reason recorded in the impugned order passed by the Magistrate on the basis of which he formed an opinion to summon the applicants under the charging sections 420, 406, 120B, 504, 506 IPC, nor does the impugned order indicates as to on what circumstances, the Magistrate arrived at a satisfaction for summoning the applicants under the aforesaid charging sections. In this regard, reliance was placed upon the judgement of the Apex Court in the case of M.P. Singh Gill vs. Election Commissioner and others, AIR 1978 SC, 851, wherein the Apex Court has categorically held that the validity of an order is to be judged on the basis of the reasons contained in the order itself. The reasons cannot be supplemented by way of affidavit. It may also be noticed that reasons are the link in between the facts and the conclusion drawn. It is that which helps the Court to decide as to on what basis, the order has been passed.
From the perusal of the impugned order, the Court finds that there is absolutely no reason between the facts as noted by the Magistrate and the conclusion drawn by him.
In view of the aforesaid discussions, the impugned order dated 19.02.2018 passed by the Additional Chief Judicial Magistrate, Court No. 2, Agra cannot be sustained. It is, accordingly, set aside. The matter is remanded to the Court below for decision afresh in the light of the observations made herein above.
The Magistrate concerned shall undertake the necessary exercise in compliance of this order within a period of two months from the date of filing of the certified copy of this order before him.
With the aforesaid directions, the present criminal misc. application is allowed.
Order Date :- 29.5.2018 HSM