Md. Shahnawaz Alam v. State Of Bihar And ANR

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.23747 of 2017 Arising Out of PS. Case No.-377 Year-2013 Thana- MADHUBANI TOWN DistrictMadhubani ====================================================== Md. Shahnawaz Alam Son of Afnozz alam, Resident of Village-Dokhar, P.S.- Kaluwahi Dist.-Madhubani ... ... Petitioner/s

Versus

1.

State Of Bihar 2.

Md. Arffan @ Irfan Son of late Md. Muslim, Resident of Village-Manihar Tola Bhauwara, Ward no. 23, P.S.-Madhubani, Dist-Madhubani ... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Bibhuti Narayan, Advocate For the Opposite Party/s :

Mr.Sri Jharkhandi Upadhyay, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR ORAL ORDER 07-08-2023 Heard learned counsel for the petitioner and learned APP for the State.

2. None appears for the Opposite Party No. 2 despite valid service of notice.

3. This application has been filed for quashing of order dated 24.03.2017 passed by learned Chief Judicial Magistrate, Madhubandi in connection with Madhubandi Nagar P.S. Case No. 377 of 2013/G.R. No. 2986 of 2013 by which learned Magistrate has taken cognizance against the petitioner after differing with the Final Form submitted by the police for the offences under Sections 419, 420, 465, 467, 468, 471 of the Indian Penal Code.

4. As per the F.I.R, father of the informant had

2/7 purchased a plot of land through registered sale deed no. 1652 dated 1.4.1942 from Abdul Latif Darzee and since the purchase of said land, tt remained in continuous possession of his father. After death of his father, the informant and his three brothers are in possession of the said land. It is further alleged that the said land has fraudulently been sold by niece of informant through registered sale deed no. 570 and 604 to Md. Shahnwaz Alam. It is further alleged that the informant and his brothers were threatened if they would challenge the same.

5. Learned counsel for the petitioner submits that Final Form was submitted by the police and the learned Magistrate has differed with the Final Form submitted by the police and taken cognizance against the petitioner. The impugned order dated 24.03.2017 passed by learned Magistrate does not show any application of mind. It is a non-speaking and cryptic order as some paragraphs have been maintained but the learned court below has not discussed the materials relying on which he has taken cognizance. He further submits that the impugned order dated 24.03.2017 passed by learned Magistrate is in teeth of law laid down by the 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,

3/7 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.

The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima 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

4/7 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.

5/7 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 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.

6/7 [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. Union of 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

7/7 devised to advance justice and not to frustrate it. In our view the 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."

6. The Final Form has already been submitted by the police and from reading of the F.I.R, it appears that this case is false and fabricated. There is dispute of land between the parties which is being given a colour of criminal case.

7. Considering the aforesaid facts and also considering the law laid down by the Hon'ble Supreme Court in case of Pepsi Food Ltd Vs. Special Judicial Magistrate reported in (1998) 5 SCC 749, this application is allowed. The impugned order dated 24.03.2017 passed by learned Chief Judicial Magistrate, Madhubandi in connection with Madhubandi Nagar P.S. Case No. 377 of 2013/G.R. No. 2986 of 2013 is hereby quashed in the interest of justice. (Sandeep Kumar, J) Harsh/ U T