Andhra Pradesh High Court - Amravati
M/S Vusirikala Nataraju Co., vs The State Of Andhra Pradesh, on 21 November, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Criminal Petition No.3459 of 2013
ORDER:
1. This petition under Section 482 of Criminal Procedure Code (for short 'Cr.P.C') is filed to quash the order dated 31.10.2012, passed in Crl.M.P No.1247 of 2012 in C.C No.153 of 2011 by Judicial Magistrate of First Class, Pathapatnam, Srikakulam District.
2. The 2nd respondent/accused in the above calendar case, filed petition under Section 20-A of Prevention of Food Adulteration Act, 1954 (for short 'the Act'), alleging that he is facing charge for the offence under Section 16 (1-A) (i) of the Act and it is posted for trial. The basis for charge against this petitioner is lifting samples by the listed witness No.1 S. Ghouse Mohiddin, Food Inspector, Division-I, Srikakulam District for analysis and on examination, the analyst opined that the sample was adulterated and thus, committed the offences punishable under Sections 7(1) and 2(ia) (j) of the Act read with Rule 29 of P.F.A Rules, 1955. The petitioner further contended that the commodity lifted for sample by L.W.1, S. Ghouse Mohiddin, Food Inspector, Division-I, Srikakulam District is Green Gram Dhall, which is a part of commodity, the petitioner purchased from dealer, M/s. Vusirikala Nataraju & Co, 8-3-30, Kolla Bazaar, Vizianagaram, vide cash receipt/invoice No.07731/dated 27.08.2008 and the same is annexed to the petition.
3. It is further contended that the Green Gram Dhall commodity is purchased from the above dealer/wholesaler against valid receipt/invoice and properly stored, the alleged sample in question is 2 MSM, J Crl.P No_3459_2013 in the same state, as purchased from the dealer. The particulars such as name and address, bill and quantity, price etc., and the particulars of dealer/distributor for the Green Gram Dhall, commodity in question was disclosed to the Food Inspector and furnished the said particulars also. But the Inspector did not take any steps or action against the said dealer. When the petitioner asked as to the action not taken against the dealer, the Inspector replied that since the original cash receipt/invoice was not produced at the early stage, no action was taken against the dealer.
4. It is further contended that since the original cash receipt/invoice with regard to the Green Gram Dhall in question was not traced at the earlier stage, it was not produced before the Inspector and the same was traced recently and thereby the dealer/wholesaler is liable for punishment in view of exemption under Section 19 (2) of the Act and requested to implead the said M/s. Vusirikala Nataraju & Co, 8-3-30, Kolla Bazaar, Vizianagaram as 2nd accused in C.C No.153 of 2011.
5. The complainant filed counter, denying the material allegations, while admitting that the Food Inspector, S. Ghouse Mohiddin, Division-I, Srikakulam District, lifted the sample, sent the sample to analyst and on analysis found that it was adulterated. After institution of prosecution and while the matter is posted for trial, submitting an invoice of purchase of the said sample stock, cannot be treated as a valid proof, the adulterated sample was drawn from a open gunny bag of 50 kgs capacity having approximately 25 kgs of sample stock. However though the petitioner submitted alleged 3 MSM, J Crl.P No_3459_2013 purchase bill, attributing liability to the supplier, it cannot be accepted that the sample has drawn from the sealed gunny bag. It is further contended that either the distributor or the supplier or the manufacturer, if supplied the commodity is in a sealed container to the retailer and the sample was drawn duly unsealing the sealed container, then only liability can be fastened against the distributor/wholesaler/manufacturer. But in the present case, the sample was lifted from gunny bag of 50 kgs capacity, containing 25 kgs of Green Gram Dhall. Therefore, the said proposed accused cannot be impleaded as 2nd accused in the calendar case and prayed for dismissal of the petition.
6. Upon hearing argument of both the counsel, the learned Magistrate passed order dated 31.10.2012, ordering summons to M/s. Vusirakala Nataraju & Co, 8-3-30, Kolla Bazaar, Vizianagaram.
7. Aggrieved by the order, the present petition under Section 482 of Cr.P.C is filed to quash the proceedings against this petitioner, on the ground that though the calendar case is under trial, P.W.1 was examined, no incriminating material was elicited in the evidence of P.W.1, with regard to disclosure of the dealer or supplier of the Green Gram Dhall to the 2nd respondent herein. In the absence of any incriminating evidence against the dealer, the court ought not to have exercised power under Section 20-A of the Act. But the learned Magistrate, without recoding his/her satisfaction, as to the incriminating material available during trial against this petitioner, passed the order summoning M/s. Vusirikala Nataraju & Co, as 2nd 4 MSM, J Crl.P No_3459_2013 accused by exercising power under Section 20-A of the Act and thus, committed an error.
8. During hearing, the learned Counsel for the petitioner reiterated the said contention and drawn the attention of this Court to the deposition of P.W.1, S. Ghouse Mohiddin dated 14.10.2011, recorded by the Judicial Magistrate of First Class, Pathapatnam. In the last five lines of page No.1 of deposition, the witness admitted that:
"on enquiry, the accused disclosed that it is Green Gram Dhall and kept in the shop for sale to the public for human consumption and failed to disclose the source of supply".
Therefore, there is absolutely no incriminating material in the examination in chief of P.W.1 to summon M/s. Vusirikala Nataraju & Co., since the cross examination of P.W.1 was deferred at request of the counsel and till date no cross examination is taken place. Therefore, the material against this petitioner is not sufficient to issue summons and try the petitioner as 2nd accused along the petitioner in Crl.M.P No.1247 of 2012 in C.C No.153 of 2011 on the file of Judicial Magistrate of First Class, Pathapatnam, Srikakulam District and requested to set aside the order.
9. The learned Counsel for the 2nd respondent though not filed any counter, contended that the court can summon any person as an accused, during trial, if any incriminating material is brought to the notice of the Magistrate and if the court satisfied that the material is sufficient to issue summons against the additional accused, the court can summon such person. Therefore, the power under Section 20-A of the Act is purely discretionary in nature and such discretion has to be exercised judiciously, based on evidence and as such the Magistrate 5 MSM, J Crl.P No_3459_2013 exercised his/her jurisdiction based on material available on record, did commit no error, warranting interference of this Court, requested to affirm the order passed by the Judicial Magistrate of First Class, Pathapatnam, Srikakulam District in Crl.M.P No.1247 of 2012 in C.C No.153 of 2011.
10. Considering rival contentions and perusing the material available on record, the point that arise for consideration is:
Whether any incriminating material was brought to the notice of the court, during trial, against the summoned accused/petitioner herein, if not whether summoning of the petitioner herein as accused by the Judicial Magistrate of First Class, Pathapatnam, Srikakulam District be sustained?
POINT:-
11. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court. In proceedings instituted on complaint or on police report exercise of the inherent power to quash the proceedings is called for only in cases where the complaint or police report does not disclose any offence or is frivolous, vexatious or oppressive. If, the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint or charge sheet has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of 6 MSM, J Crl.P No_3459_2013 the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. In that event there would be no justification for interference by the High Court as held by the Apex Court in Mrs.Dhanalakshmi v. R.Prasanna Kumar1.
In State of Haryana v. Bhajan Lal2 the Apex Court considered in detail the powers of High Court under Section 482 and the power of the High Court to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever 1 AIR 1990 SC 494 2 1992 Supp (1) SCC 335
7 MSM, J Crl.P No_3459_2013 reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
The scope of Section 482 Cr.P.C. is well defined and inherent powers could be exercised by the High Court to give effect to an order under the Cr.P.C.; to prevent abuse of the process of court; and to otherwise secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae. However, in exercise of such powers, it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused and the court cannot look into materials, the acceptability of which is essentially a matter for trial. Any document filed along with the petition labelled as evidence without being tested and proved, cannot be examined. Law does not prohibit entertaining the petition under Section 482 Cr.P.C. for quashing the charge sheet even before the charges are framed or before the application of discharge is filed or even during its pendency of such application before the court concerned. The High Court cannot reject the application merely on the ground that the accused can argue legal and factual issues at the time of the framing of the charge. However, the inherent power of the court 8 MSM, J Crl.P No_3459_2013 should not be exercised to stifle the legitimate prosecution but can be exercised to save the accused to undergo the agony of a criminal trial.
In M/s. Medchl Chemicals and Pharma Private Limited v. M/s. Biological E. Limited3 the Apex Court held that the power under Section 482 Cr.P.C has to be exercised with care and sparingly, High Court has only to see whether allegations in complaint make out prima facie case. It has no power to examine truth and correctness of allegations. Exercise of jurisdiction under the inherent power as envisaged in Section 482 Cr.P.C to have the complaint or the charge- sheet quashed is an exception rather a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. To exercise powers under Section 482 of Cr.P.C. the complaint in its entirety shall have to be examined on the basis of the allegations made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness. Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same, but the offence ought to appear ex facie on the complaint.
In view of the law declared by the Apex Court in various judgments referred supra, this Court can exercise its power in rarest of rare cases, and it cannot be used to stifle the legitimate prosecution, the only requirement is verification of the allegations made in the charge sheet to find out whether the allegations on their face value would constitute offence punishable under the penal provisions of any Act and in view of the power conferred on this Court, by exercising power under Section 3 AIR 2000 SC 1869 9 MSM, J Crl.P No_3459_2013 482 Cr.P.C, this Court has to examine the issue before this Court with reference to the law declared by various Courts.
12. Coming to the facts of the present case, the petitioner before the trial court/2nd respondent herein Gundla Ananda Rao and on analysis of the sample lifted from the shop of the 2nd respondent herein, the same was found adulterated, thereby filed complaint before the Magistrate, who in turn took cognizance, after following necessary procedure and proceeding with the trial of the case. During trial, L.W.1, S. Ghouse Mohiddin was examined as P.W.1 in chief on 14.10.2011, cross examination of P.W.1 was deferred at request of the counsel appearing for the accused before the trial court. At that juncture, petition under Section 20-A of the Act is filed to summon M/s. Vusirikala Nataraju & Co/petitioner herein, as additional accused, exercising power under Section 20-A of the Act, as 2nd respondent herein allegedly purchased the food item and analyzed, found adulterated, on analysis by the analyst and 2nd respondent herein also produced a receipt/invoice No.07731/dated 27.07.2008, evidencing purchase of Green Gram Dhall from M/s. Vusirikala Nataraju & Co, since the receipt was not traced earlier, to produce the same before P.W.1, S Ghouse Mohiddin, Food Inspector, Division-I, Srikakulam District. On the strength of the receipt/invoice to claim immunity from prosecution under Section 19 (2) of the Act, 2nd respondent herein filed a petition under Section 20-A of the Act before the trial court. Though the Public Prosecutor, opposed the petition, the Magistrate ordered summons to this petitioner exercising power under Section 20-A of the Act.
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13. Section 20-A of the Act deals with, power of the court to implead manufacturer, where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the court if satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then, the court may notwithstanding anything contained in sub-section 3 of Section 319 of Cr.P.C or in Section 20 of the Act, proceed against him as though a prosecution had been instituted against him under Section 20 of the Act. Thus, there is thin distinction between power conferred on the court under Section 20-A of the Act and Section 319 of Cr.P.C. Section 319 of Cr.P.C deals with power of the court to proceed with other persons other than the accused, facing trial, but Section 20-A of the Act empowers the court trying the offence under the Act to proceed against the manufacturer, distributor or dealer of any article of food, during the course of trial, it is in the nature of an exception to Section 20 of the Act.
14. The jurisdiction conferred on the Magistrate under Section 20-A of the Act can be exercised by the Magistrate only during trial for an offence under the Act against a person other than the manufacturer, distributor or dealer of an article of food. By necessary implication it would fall that such jurisdiction cannot be exercised by the Magistrate before commencement of the trial against the person other than manufacturer, distributor or dealer, since it is only on the basis of the evidence produced in the course of such trial, the Magistrate has to arrive at the satisfaction that the manufacturer, distributor or dealer 11 MSM, J Crl.P No_3459_2013 is concerned with the offence, forming part of the subject matter of the trial.
15. Section 20-A of the Act contemplates, the addition of an accused under the Section, constitutes and expressly laid down an exception to the requirement of Section 20 of Act. The object of this Section seems to be that prosecution of a person impleaded as an accused in the course of trial does not require separate sanction. Another object of the Section seems to be that such power enables the trials of really guilty parties vide Bhagawandas Jagdish Chander v. Delhi Administration4. Therefore, it is necessary that in every case under the Act, there has to be initially a prosecution of seller only, but who may have passed on or sold the adulterated article of food to the vendor, who is being prosecuted, could only be brought in subsequently after a warranty set up under Section 19 (2) of the Act has been pleaded and shown to be substantiated. The special provision under Section 20-A, 19 (2) and 20 of the Act, do not take away or derogate from the effect of ordinary provisions of Cr.P.C. On the other hand, there seems to be no logically sound reason why, if a distributor or a manufacturer can be subsequently impleaded, under Section 20-A of the Act, he cannot be joined as a co-accused initially in a joint trial if the allegations made justify such a course. The activities of the manufacturer, the distributor and the retailer, seller are sufficiently connected, in a case of sale of an article of food to be adulterated, by a unity of purpose and design, and, therefore, of a transaction, so as to make their joint trial possible in a suitable case. 4 AIR 1975 S.C 1309 12 MSM, J Crl.P No_3459_2013 But at the same time, where a joinder of several accused persons concerned with dealing in different ways with the same adulterated article of food at different stages is likely to be jeopardized a fair trial, a separate trial ought to be ordered. It is not proper to acquit or discharge an accused person on this ground alone. Thus, Section 20- A of the Act conferred such power on the Magistrate, but such power can be exercised, subject to satisfying himself that there is material against the proposed accused to be summoned, during trial. As such Section 20-A of the Act, clearly contemplates a contingency where the discretionary jurisdiction was under the Act can be exercised only during trial of any offence i.e. to say at the stage which the Magistrate can exercise his discretion under this Section must be before the trial has concluded and ended in acquittal or conviction. Where a distributor or manufacturer or any other person is impleaded in the course of trial, the obligation to get a fresh sanction for such person is discussed above and the sanction obtained for the last seller in the trial will ensure for the benefit of the prosecution of the other person impleaded also and no further sanction is necessary. Thus, a dealer can always be impleaded in a suitable case, if the material available on record, justify such summoning of an additional accused during trial. To exercise such discretionary power, the following are the three conditions as per Section 20-A of the Act. They are as follows:
1.The trial for an offence under the Act should be pending against the person other than manufacturer, distributor or dealer of any article of food;
2.There must be evidence before the court that such manufacturer, distributor or dealer was concerned with the offence with which the person concerned was charged; and
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3.The court should be satisfied by evidence that such manufacturer, distributor or dealer is concerned with the offence.
16. It is only if all three conditions are satisfied that the court can proceed against such manufacturer, distributor or dealer. Keeping in view, all the requirements, issue summons to the additional accused, exercising power under Section 20-A of the Act, I would like to examine, the present case with reference to the material.
17. It is an undisputed fact that P.W.1 S. Ghouse Mohiddin, lifted sample from the open gunny bag of 50 kgs capacity, having found 25 kgs of Green Gram Dhall and the food lifted for sample was analyzed and found adulterated. After compliance of necessary formalities, P.W.1 filed a complaint before the Magistrate against the 2nd respondent herein. Before launching prosecution, the 2nd respondent herein did not make any attempt to produce any material like receipt which he produced along with the petition in Crl.M.P No.1247 of 2012, bearing cash receipt/invoice No.07731 dated 27.07.2008, allegedly issued by M/s. Vusirikala Nataraja & Co, 8-3-30, Kolla Bazaar, Vizianagaram. Having maintained silence, at the time of lifting sample, or even during subsequent stages and at least after on receipt of summons in the complaint, but for the first time, 2nd respondent herein, raised such plea before the Magistrate by filing petition under Section 20-A of the Act. The basis is the receipt which is not marked as documentary evidence, before the Magistrate. P.W.1, S. Ghouse Mohiddin was examined in chief on 14.10.2011. In the entire evidence, P.W.1 did not speak anything about the disclosure of name of the dealer, manufacturer or supplier of Green Gram Dhall to 2nd 14 MSM, J Crl.P No_3459_2013 respondent herein, except stating that on enquiry, accused disclosed that it is Green Gram Dhall and kept in the shop for sale to the public for human consumption and failed to disclose its source of supply. This would not enable the Court to conclude that there is material to proceed against the petitioner prima facie by exercising power under Section 20-A of the Act.
18. The basic requirement is finding of material against the person who sought to be summoned by exercising power under Section 20-A of the Act and recording of satisfaction by the Magistrate that there is material to proceed against this petitioner.
19. A bare look at the entire order, the Magistrate did not record his/her satisfaction, so as to proceed against the petitioner who is not arrayed as an accused before the Magistrate. In the absence of any evidence brought on record during trial and recording satisfaction to exercise such discretionary power that conferred on the Magistrate by Section 20-A of the Act, the order passed by the Magistrate cannot be sustained. The document produced along with the petition, cannot be treated as evidence, till it is marked as exhibit before the Magistrate. Therefore, prima facie, the Magistrate failed to exercise the discretion that conferred on him/her by Section 20-A of the Act, judiciously, recording his/her satisfaction as to the prima facie evidence available against the proposed accused to be summoned as additional accused by exercising power under Section 20-A of the Act. In the absence of recording of such finding, the order cannot be sustained and this Court can exercise power under Section 482 of Cr.P.C to quash such an order.
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20. Summoning of a person as an accused by exercising power under Section 20-A of the Act or by exercising power under Section 319 (3) of Cr.P.C, will have its serious consequences as held by the Apex Court in Ramdev Food Products Pvt. Ltd v. State of Gujarat5, the Apex Court relying on Pepsi Foods Ltd. v. Judicial Magistrate6 held as follows:
"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 scrutinise 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."
In Priyanka Srivastava v. State of Uttar Pradesh7, the Apex Court reiterated that while considering the legality of the order passed under Section 156(3) of Cr.P.C, discussed the scope of various provisions of Cr.P.C and held as follows:
"Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to."5
(2015) 6 SCC 439 6 (1998) 5 SCC 749 7 (2015) 6 SCC 287 16 MSM, J Crl.P No_3459_2013 While exercising power under Section 156(3), the Court must record its satisfaction as to what weighed the Magistrate to pass such an order which reflects the application of mind to the facts of the case in its entirety so as to enable the Higher Court to form an opinion.
21. In view of the law declared by the Apex Court in all the judgments, it is imperative to record satisfaction by the Magistrate that there is prima facie material to exercise such power to summon an additional accused in the pending calendar case during trial. But failure to record such satisfaction which is sina quo nan, vitiates the entire order. Such order is liable to be quashed by this Court, while exercising power under Section 482 of Cr.P.C.
22. The learned Counsel for the petitioner Sri Gudapati Venkateswara Rao contended that such power can be exercised only when the court find any material against this petitioner during trial, recording satisfaction, placed reliance on several judgments in support of his contention. The learned Counsel would draw the attention of this Court to Roshan Lal Singhania and others v. Municipal Corporation of Delhi and another8, wherein the court laid down the three conditions to exercise power under Section 20-A of the Act which I extracted in the earlier paras and further held that Section 20-A is the solitary provision which makes it possible for the court to issue summons to a person who is a manufacturer, distributor or dealer of article of which a sample has been taken even without insisting it requirement of written consent of the competent authority as provided under Section 20-A of the Act, because this is 8 1978 Cri.L.J 1027 17 MSM, J Crl.P No_3459_2013 an effective way of combating the evil of adulteration of food. This has to be obviously confined only to cases where the manufacturer has not already been made a party to the prosecution. It cannot certainly be extended to a case where the competent authority had given its written consent to prosecute the manufacturing company and certain Managing Director alone as being its Director in charge and if the Magistrate satisfied that the three requirements are existing as on date of filing petition, the court can exercise such power. The learned Counsel also relied on another judgment of Apex Court in Shiv Prakash Mishra v. State of Uttar Pradesh and another9. The question before the Court was, exercise of power under Section 319 of Cr.P.C by the criminal Court. The Apex Court while relying on the earlier judgment in Hardeep Singh v. State of Punjab and others10 and Brijendra Singh v. State of Rajasthan11, held that the power under Section 319 of Cr.P.C, can be exercised only in the circumstances enumerated in Section 319 (3) of Cr.P.C, while holding that by reading of Section 319 of Cr.P.C, it is clear that power under Section 319 of Cr.P.C can be exercised by the trial court at any stage during trial to summon any person as an accused to face the trial if it appears from the evidence that such person has committed any offence for which such accused could be tried along with the accused. The standard of proof employed for summoning a person as an accused person under Section 319 of Cr.P.C is higher than the standard of proof employed for framing of a charge against the accused person. The power under Section 319 of Cr.P.C should be 9 (2019) 7 SCC 806 10 (2014) 3 SCC 92 11 (2017) 7 SCC 706 18 MSM, J Crl.P No_3459_2013 exercised sparingly as held in Kailash v. State of Rajasthan and another12, "the power of summoning an additional accused under Section 319 of Cr.P.C should be exercised sparingly. The key words in Section are "it appears from the evidence", "any person", "has committed any offence". It is not, therefore, that merely because some witnesses have mentioned the name of such person or that there is some material against that person, the discretion under Section 319 of Cr.P.C would be used by the court". Therefore, the Constitution Bench in para No.105 in Hardeep Singh (10th cited supra), held that the power under Section 319 of Cr.P.C is discretionary and is to be exercised sparingly which reads as under:-
"105. Power under Section 319 of Cr.P.C is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 of Cr.P.C. In Section 319 of Cr.P.C, the purpose of providing if "it appears from the evidence that any person not being the accused has committed any offence" is clear from the words "for which such person could be tried together with the accused". The words used are not "for which such person could be convicted". There is therefore, no scope for the court acting under Section 319 of Cr.P.C to form any opinion as to the guilt of the accused."
23. In the light of the above principles, considering the facts of the case before the Apex Court, finally concluded that there must be satisfactory evidence to conclude prima facie that the person sought to be summoned is also committed an offence to try along with the 12 (2008) 14 SCC 51 19 MSM, J Crl.P No_3459_2013 accused who is facing trial and that too in the above facts of the case, two witnesses were examined and their evidence is contradictory to one another. Consequently the court by exercising its power set aside the order passed by the trial court.
24. In Shiv Prakash Mishra (9th cited supra), the Apex Court again considered the scope of Section 319 of Cr.P.C and held that when the name of 2nd accused is mentioned in the F.I.R and overt act is also attributed to him. In the facts of the above judgment, few facts are relevant. But during investigation, the Investigating Officer recorded the statements of number of witnesses who have stated that 2nd respondent was not present at the place of occurrence, at the time of incident. The appellant/complainant has not filed any protest petition then and there. During investigation when it was found that the accused was not present at the place of incident, the courts below got right in refusing to summon the 2nd respondent as an accused. Though in his chief examination on 22.10.2016 P.W.1 has stated about the presence of 2nd respondent and attributed overt act against him. On 28.02.2017 P.W.1 in his cross examination stated that 2nd respondent was on duty at that time. Therefore, considering the few facts stated above, the court held that the evidence on record is not sufficient to exercise power under Section 319 of Cr.P.C to implead the 2nd respondent as accused, since the standard of proof for summoning a person is higher than the standard of proof for framing charges. But these principles cant be applied to the present facts, since the power under Section 20-A of the Act can be exercised, 20 MSM, J Crl.P No_3459_2013 notwithstanding the circumstances enumerated in sub-section 3 of Section 319 of Cr.P.C.
25. Similarly in Full Bench of Kerala High Court in Food Inspector, Palghat Municipality v. Seetharam Rice and Oil Mills13, reiterated the principle that the court can exercise such power only when there is sufficient material during trial to proceed against the accused recording its satisfaction. Thus, in view of the law declared by various courts referred supra, the power under Section 20-A of the Act is purely discretionary and subject to recoding satisfaction, thus such power can be exercised only after recording satisfaction during trial. Moreover, the power under Section 20-A of the Act is akin to the power of the criminal court under Section 319 of Cr.P.C. But a bare reading to Section 20-A of the Act, it appears that it is an exception to Section 319 (3) of Cr.P.C. But by judicial interpretation, the courts held that the power of the Magistrate is purely discretionary and such power has to be exercised judiciously, recording its satisfaction that the proposed accused also committed an offence along with the accused on record. In the absence of recording satisfaction, the order cannot be sustained.
26. The learned Counsel for the 2nd respondent while contending that the petitioner can be summoned at any time during trial, exercising power under Section 20-A of the Act by the Magistrate and relied on a judgment of Apex Court in Delhi Cloth and General Mills Company Limited v. State of Madhya Pradesh14, the Three Judge 13 1974 FAC 534 14 Laws (SC) 1995 9 70 21 MSM, J Crl.P No_3459_2013 Bench of Apex Court had an occasion to decide an identical issue to summon the manufacturer, held that a reading of Section 20-A of the Act clearly indicates that during course of trial, for any of the offence under the Act, alleged to have been committed by any person, if the evidence adduced before the court discloses that the manufacturer, distributor or dealer is also concerned with that offence, then the court has been empowered, notwithstanding anything contained in sub-section 3 of Section 319 of Cr.P.C to plead as if the manufacturer, distributor or the dealer is being proceeded against, under Section 20- A of the Act, as originally instituted thereunder. The concept of vendor and vendee is known to civil law and passing of title in the case is alien to the prosecution for an offence under the Act. It cannot therefore, be introduced in trial court for the offence under the Act. The Act advisedly made a person who sells adulterated articles of food, liable to be prosecuted for the offence of adulteration of article of food. During the trial when it comes to the notice of the Magistrate, from the evidence adduced that the manufacturer, distributor or dealer of the article of food which is subject matter of the adulteration is also concerned with the offence, then the court has been empowered to proceed against such manufacturer, distributor or dealer as if the prosecution has initially been instituted against him under Section 20 of the Act. In fact, for general offences, Section 319 (1) of the Code empowers the Court where during the course of enquiry, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which he appears to have committed. In view of the language of Section 20-A of 22 MSM, J Crl.P No_3459_2013 the Act, whatever is contained in sub-section (3) of Section 319 of the Code, would not stand in the way of the Magistrate to proceed at a trial against any person, i.e. the original accused and against others mentioned in Section 20-A of the Act. In other words, joint trial for the same offence is permitted. The object appears to be that in a case where common evidence discloses that the manufacturer, distributor or dealer is also concerned with the offence for which the prosecution was launched against a person from whom the article of food was purchased, to avoid multiplicity of prosecution and also keeping in view the doctrine of autrefois acquit the Legislature introduced Section 20-A to have joint trial.
27. The legal position laid down by the Apex Court relied on by the Counsel for 2nd respondent is not in dispute, but it is worthy to note the circumstances under which the Magistrate can exercise power under Section 20-A of the Act. In Section 20-A of the Act and the judgment highlighted the words "on the evidence adduced before it, it means evidence of witnesses recorded by the court". Therefore, aduction of evidence to connect the petitioner with the offence is a sina quo nan or a pre-condition to exercise such power under Section 20-A of the Act. In the present facts of the case, 2nd respondent except filing a cash receipt/invoice No.07731 dated 27.07.2008, no evidence was adduced to connect this petitioner with the offence under the Act. There is difference between evidence adduced and material produced. The document produced along with petition is not in evidence. It is only a material produced before the court, not evidence adduced. In view of the distinction between the material/evidence produced and 23 MSM, J Crl.P No_3459_2013 evidence adduced. Based on such receipt, without recording any satisfaction that this petitioner also committed any offence punishable under the Act, the court cannot exercise such power to summon the petitioner as an additional accused. Similarly the Kerala High Court in Satheesh Chandran v. State of Kerala took an identical view as to the power to be exercised by the Magistrate under Section 20-A of the Act stressing on the word "evidence adduced" before the Magistrate. He also drawn the attention of this Court to Omprakash Shivprakash v. K. I. Kuriakose15. Even in this judgment also, the Apex Court had an occasion to deal with Section 20-A of the Act referred in earlier judgment in Delhi Cloth and General Mills Limited (7th cited supra) and Bhagawandas Jagdish Chander (4th cited) which I referred in earlier paras and laid down the three requirements to exercise such power which I extracted in the earlier paras and laid more stress on the words "on the evidence adduced before it" and concluded that such power under Section 20-A of the Act can be exercised only during trial and in the absence of any indication that this petitioner also committed an offence, recording satisfaction by the Magistrate, the Court cannot issue summons to the additional accused/the petitioner herein.
28. On overall consideration of entire law declared by the Apex Court and other courts referred in the earlier paras, it is clear that there must be evidence to conclude prima facie that the petitioner herein also committed any offence under the provisions of the Act. But at the present stage, except examination of S. Ghouse Mohiddin as 15 Laws (SC) 1999 11 87 24 MSM, J Crl.P No_3459_2013 P.W.1, the Food Inspector who lifted the samples, in examination in chief, while deferring cross examination, at the request of counsel for the 2nd respondent/the accused before the trial court, no further evidence was adduced before the Magistrate. Even the examination in chief of P.W.1 is silent as to commission of an offence by this petitioner, the accused proposed to be summoned. At the same time, the order of the Magistrate is silent as to the requirement under Section 20-A of the Act i.e. finding material based on the evidence adduced that this petitioner also committed an offence along with the other accused, exercised power under Section 20-A of the Act and issued summons erroneously against this petitioner. Therefore, the Magistrate in utter disregard of mandatory requirement under Section 20-A of the Act, exercised such power and it is vitiated by an illegality and the same is liable to be set aside by exercising power under Section 482 of Cr.P.C, as summoning of an accused will have serious consequences as held by the Apex Court in the judgment referred supra.
29. On overall consideration of entire material on record, I find that the order of the Magistrate in Crl.M.P No. 1247 of 2012 in C.C No.153 of 2011 dated 31.10.2012 is illegal and accordingly the same is liable to be set aside.
30. In the result, the criminal petition allowed, setting aside the order passed by the Judicial Magistrate of First Class, Pathapatnam in Crl.M.P No. 1247 of 2012 in C.C No.153 of 2011 dated 31.10.2012. However, this order will not preclude the Magistrate to issue summons to the additional accused, if the Magistrate finds evidence 25 MSM, J Crl.P No_3459_2013 to conclude prima facie that this petitioner also committed an offence during trial, based on the evidence adduced.
31. Consequently, miscellaneous petitions, pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated: 21.11.2019 Note: L.R copy to be marked.
b/o Rvk