Manan Kumar Mishra @ Manan Mishra v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.22603 of 2017 Arising Out of PS. Case No.-61 Year-2009 Thana- SIKARPUR District- West Champaran ====================================================== Manan Kumar Mishra @ Manan Mishra S/o Late Sheo Chandra Mishra, R/o Village- Tiwari Kharaya, P.S.- Kuchaikote, District- Gopalganj. ... ... Petitioner/s
Versus
The State Of Bihar ... ... Opposite Party/s ====================================================== Appearance :
For the Petitioner/s :
Mr. Ramakant Sharma, Senior Advocate Mr.Ashutosh Tripathy For the Opposite Party/s :
Mr. Braj Kishore Prasad Mr. Jharkhandi Upadhyay, APP Incharge ====================================================== CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR ORAL ORDER 20-07-2023 Heard the parties.
2. This application has been filed for quashing the order dated 27.08.2010 passed by the learned Chief Judicial Magistrate, Bettiah in connection with Sikarpur P.S. Case No. 61/09 whereby and whereunder cognizance has been taken for the offence punishable under Section 188 of the Indian Penal Code and Section 123 of the R.P. Act.
3. The prosecution case in brief is that On 22.03.2009, the complainant gave his written statement before the S.H.O. Sikarpur that during the course of patrolling/investigation some posters were found stuck on the wall of the Dhum Nagar Temple and banners in the name of the petitioner, who was a candidate of the B.S. Party, was also found hanging in the Semra Market
2/6 Chowk.
4. Learned Senior Counsel appearing on behalf of the petitioner has submitted that the cognizance has been taken against the petitioner without any application of mind and the order of cognizance reflects that the magistrate has passed an order of cognizance on a written format by the office. There is no application of mind.
5. Hon'ble Supreme Court in the case of Pepsi Food Ltd Vs. Special Judicial Magistrate reported in (1998) 5 SCC
749. Paragraph no. 28, 29, 30 of the aforesaid judgment reads as follows:- "(28) Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused.
It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused.
3/6 facie committed by all or any of the accused.
(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, a 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 b 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.
4/6 "Residency Foods and Beverages Ltd." for bottling the beverage "Lehar c 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 d 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 e 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 (Wak) v.
5/6 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 h 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 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 them. 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 their 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 the High Court should not have adopted such a c 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."
6. In view of the law laid down by the Hon'ble Supreme Court in the case of Pepsi Foods Ltd. & Another (supra) and the facts that the impugned order is a non-speaking order passed without any application of mind, this application is allowed.
7. Accordingly, the order dated 27.08.2010 passed by
6/6 the Chief Judicial Magistrate, Bettiah in connection with Sikarpur P.S. Case No. 61/09, Tr. No. 564/16 whereby and whereunder cognizance has been taken for the offence punishable under Section 188 of the Indian Penal Code and Section 123 of the R.P. Act are hereby quashed. (Sandeep Kumar, J) Saif/- U T