Madhya Pradesh High Court
M/S Super Pharma Products vs The State Of Madhya Pradesh on 16 January, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:1132
1 CRR-1209-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 16th OF JANUARY, 2025
CRIMINAL REVISION No. 1209 of 2017
M/S SUPER PHARMA PRODUCTS AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vijay Kumar Asudani and Shri Prashant Kashyap, counsel for
applicant.
Shri Tarun Pagare, Govt. Advocate for respondent/State.
WITH
CRIMINAL REVISION No. 3010 of 2017
M/S SUPER PHARMA PRODUCTS AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vijay Kumar Asudani and Shri Prashant Kashyap, counsel
for applicant.
Shri Tarun Pagare, Govt. Advocate for respondent/State.
ORDER
These Criminal Revisions have been preferred against the common order dated 5.09.2017 passed by JMFC, Jhabua in criminal case No. 287/2005 and 286/2005 respectively, therefore both these Revisions are being disposed off by this common order. By the impugned order, learned Signature Not Verified Signed by: MUKTA KOUSHAL Signing time: 20-01-2025 10:22:08 NEUTRAL CITATION NO. 2025:MPHC-IND:1132 2 CRR-1209-2017 trial court has allowed the application of the respondent/State filed under section 33 of the Indian Evidence Act for admitting the statement of the deceased Drug Inspector, R. C. Varandani in the evidence, as he passed away before his cross-examination could be completed in evidence, after charge.
2. The application filed on behalf of the prosecution was opposed by the applicants on the ground that at the time when the statement of R.C.Varandani, the then Drug Inspector was recorded before the trial court before charge, the applicant had no right to cross-examine the then Drug Inspector on merits of the case, therefore ingredients of section 33 of the Evidence Act are not fulfilled, hence the statement of deceased Drug Inspector can not be admitted in evidence at the time of judgment. Learned trial court after giving opportunity of hearing to both the parties and ruminating the judgments as cited by both the parties allowed the application filed on behalf of the prosecution which gave rise to these Criminal Revisions.
3. Counsel for the applicant submits that at the time of recording of statement of the deceased Drug Inspector before charge, though the applicant was given opportunity to cross-examine the witness and that opportunity was availed by the applicant but it was only to the extent of charge. It was not full fledged cross-examination in respect of 47 documents marked as Exhibits during trial, therefore, learned trial court has erred in passing the impugned orders.
4. Per contra, learned Govt. Advocate for respondent/State submits that these revisions are not maintainable before the High Court as applicant has Signature Not Verified Signed by: MUKTA KOUSHAL Signing time: 20-01-2025 10:22:08 NEUTRAL CITATION NO. 2025:MPHC-IND:1132 3 CRR-1209-2017 not availed the remedy available before the Sessions Court and on merit, learned Govt. Advocate submits that impugned orders passed by the trial court are as per provisions of law and no factual or legal error has been committed by the trial court, hence these Revisions which are sans merit need dismissal.
5. Answering to this, learned counsel for applicant placing reliance on the judgment of Division Bench of this Court in the matter of State of Madhya Pradesh Vs. Khizar Mohammad, 1996 MPLJ 1007 submits that Revisions before this Court are maintainable. Relevant para N.11 is reproduced below :
"In our opinion these observations in Shridhar Shastri's case (supra) are somewhat misleading. We are fortified in our opinion by the decision of the Supreme Court in Dharmpal Vs. Ramshri, AIR 1993 SC 1360 where the Apex Court has held that a second revision application by the same person after disposal of the first cannot be entertained by High Court in exercise of section 482 Cr.P.C.. It is well settled that the inherent powers under section 482 Cr.P.C. cannot be utilised for exercising powers which are expressly barred by the Code. In view of decision of the Supreme Court the observation quoted above in Shridhar Shastri's case cannot be supported. The provisions under the new Code also indicate that the option is given to the person to approach either to the High Court or the Court of Sessions and same is also clear from the provisions of section 397(3) of Cr.P.C. which categorically states that where an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by Signature Not Verified Signed by: MUKTA KOUSHAL Signing time: 20-01-2025 10:22:08 NEUTRAL CITATION NO. 2025:MPHC-IND:1132 4 CRR-1209-2017 the same person shall be entertained by the other of them. It is also made clear that by the provision of section 397 Cr.p.C. that if an application has been made by any party to the Sessions Judge the same party cannot approach the High Court. Reading of this, thus, shows that if a party approaches the Sessions Court and the order is passed then the other party or opposite party has a right to approach the High Court."
6. Heard learned counsel for the parties and perused the record.
7. So far as the contention with regard to maintainability of the Revisions are concerned, in view of the judgment of Khizar Mohammad (supra) as cited by counsel for applicant, the Revisions are maintainable. In view of aforesaid, contention raised in this regard by respondent / State has no force and therefore, rejected.
8. So far as merit of the cases are concerned, learned trial court failed to appreciate the provisions as enshrined in section 33 of the Indian Evidence Act which is reproduced below:
"33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the Court considers unreasonable :
Provided that the proceeding was between the same parties or their representatives in interest;that the adverse party in the first proceeding had the right and opportunity to cross-examine;that the questions in issue Signature Not Verified Signed by: MUKTA KOUSHAL Signing time: 20-01-2025 10:22:08 NEUTRAL CITATION NO. 2025:MPHC-IND:1132 5 CRR-1209-2017 were substantially the same in the first as in the second proceeding."
9. Following essentials are provided in the proviso attached to Section 33 of the Indian Evidence Act are as under:-
"1. It was between the same parties;
2. If the adverse party in the first proceeding had the right and opportunity to cross examine the witness; and
3. The question in issue were substantially the same in the first as in the second proceeding."
10. From perusal of the aforesaid provision, it is clear that though the parties are same between whom the statement of deceased Drug Inspector was recorded before charge but the second ingredient which is required for fullfilment of section 33 of the Evidence Act that if the adverse party in the first proceeding had the right and opportunity to cross examine the witness, has not been fulfilled. At the time of framing of charge, the cross- examination as done by the counsel for applicant was limited to the proceedings of charge only and after that several documents were tendered and admitted in evidence and before giving opportunity of cross-examination to the applicant, the Drug Inspector passed away, therefore, he could not come before the trial court. It would be profitable to refer to the judgment of this Court in the matter of Nandram Khemraj Vs. State of Madhya Pradesh, 1995 MPLJ 83 relied upon by the applicant. Relevant paragraph Nos.15,16 and 17 are reproduced below :
"15. Thus, it would be quite clear from the language used in above mentioned sections that in a private complaint the accused does not have a right to cross-examine the witness examined by the prosecution before charge stage. In the interest of justice and as a matter of convenience he has been given a right to cross-examine those witnesses. It is not the right which the accused persons having in committal proceeding to cross-examine the Signature Not Verified Signed by: MUKTA KOUSHAL Signing time: 20-01-2025 10:22:08 NEUTRAL CITATION NO. 2025:MPHC-IND:1132 6 CRR-1209-2017 witnesses examined on behalf of the prosecution, when cases used to be committed to Court of Session under Code of Criminal Procedure, 1898. Therefore, it would be totally against the spirit of law to blame the accused (revision-petitioner) in the way in which two courts below have blamed him for not cross-examining the Food Inspector Shri Karandikar before the stage of framing of charge in the present matter.
16. In a case filed against the accused for offence punishable under the provisions of Food Adulteration Act, the evidence given by the Food Inspector is of immense importance. Food Adulteration cases revolve mainly around technical points. In such cases the Food Inspector who collects the sample and sends it to the office of the Public Analyst is required to follow certain procedure for the purpose of collecting the sample, sealing it and sending it to the office of Public Analyst. Thereafter also he is obliged to follow certain procedure in sending two samples to the local authority. Thereafter, he has to give a notice to the accused after receipt of the report of the Public Analyst and after filing of complaint against the accused within the prescribed time enabling such an accused to get his sample analysed from Central Laboratory. In the cases which are revolving around the sample of milk, cross-examination of such Food Inspector is important in view of other important points also like addition of formalin, stirring of the sample milk or not stirring of the sample milk, stirring of milk sample in the bottle in bottles etc. His cross- examination is also important in respect of things which are relevant in view of the Rules 17 and 18 under the Adulteration Act. When the Panch-witnesses do not support the case of the Food Inspector mentioned in the complaint, the cross-examination of Food Inspector assumes more importance.
17. When the Food Inspector is not cross- examined on necessary details in view of the technicalities involved in a case under relevant provisions of the Adulteration Act, and when the Panch-witnesses have* not supported his case, if in such cases such evidence is acted upon for basing the Signature Not Verified Signed by: MUKTA KOUSHAL Signing time: 20-01-2025 10:22:08 NEUTRAL CITATION NO. 2025:MPHC-IND:1132 7 CRR-1209-2017 conviction against the said accused, in my opinion, it would cause great miscarriage of justice. It is to be noted at this juncture that weapon of cross-examination is a powerful weapon by which the defence can separate truth from falsehood piercing through the evidence given by the witness, who has been examined in examination-in-chief. By the process of cross-examination the defence can test the evidence of a witness on anvil of truth. If an opportunity is not given to the accused to separate the truth from the evidence given by the witness in examination-in-chief, it would be as good as cutting his hands, legs and mouth and making him to stand meekly before the barrage of statements made by the witnesses in examination-in-chief against him for sending him to jail. Law does not allow such thing to happen."
11. From perusal of the aforesaid observations as reflected above, this court is in full agreement with the exposition of law by the co-ordinate Bench. In case of Sukhdev Vs. State of Madhya Prdesh, 2003(4) MPLJ 157 it has been held that on death of witness before cross-examination, his evidence does not become inadmissible but as discussed by this Court hereinabove when right to cross-examine the witness with regard to merits of the case on evidence after charge could not be availed due to death of prosecution witness Drug Inspector, then ingredients of Section 33 of the Indian Evidence Act cannot be said to have been fulfilled, therefore testimony of the deceased Drug Inspector cannot be relied upon as evidence as per provisions of section 33 of the Evidence Act.
12. In the light of aforesaid discussion, both the Revisions are allowed. The impugned orders passed by the court below are hereby set aside with specific mention that in the original cases statement of the deceased Drug Inspector cannot be read as evidence under section 33 of the Indian Signature Not Verified Signed by: MUKTA KOUSHAL Signing time: 20-01-2025 10:22:08 NEUTRAL CITATION NO. 2025:MPHC-IND:1132 8 CRR-1209-2017 Evidence Act in the attending circumstances of the case.
Copy of this order be placed in Cr.Revision No. 3010 of 2017.
(BINOD KUMAR DWIVEDI) JUDGE MK Signature Not Verified Signed by: MUKTA KOUSHAL Signing time: 20-01-2025 10:22:08