Trilok Chand Garg and Ors. Vs State

Instant S.B. Criminal Revision Petition is preferred by petitioners-accused Trilok Chand, Sandeep Garg and Rajendra Vijayvergiya aggrieved from order dated 05.01.2006 in Criminal Revision No.98/2005 passed by learned Additional Sessions Judge No.2, Jaipur City, whereby he set aside the order of discharge dated 08.05.2002 in Criminal Case No.149/2001 passed by learned Judicial Magistrate No.14, Jaipur City, Jaipur.

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During pendency of this revision petition, petitioner No.1 Trilok Chand and petitioner No.3 Rajendra Vijayvergiya have expired, so the instant revision petition stands abated qua petitioner Nos.1 and 3. We are dealing the petition in respect of petitioner No.2 Sandeep Garg.

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Learned counsel for petitioner while relying upon the grounds of revision petition submits that Police Station Jhotwara on basis of alleged information has registered an FIR on 01.06.2000 and

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after investigation has filed a charge-sheet against three accused persons and the Trial Court has taken cognizance under Section 420 of IPC. He submitted that as per record procured by police, petitioner Sandeep Garg is not connected with alleged act. He referred the statement under Section 161 Cr.P.C. and also the conclusion drawn by police and submitted that as per seizure memo, two persons Trilok Chand and Rajendra Vijayvergiya were found responsible for preparing fake Desi Ghee of different brands. He further submitted that on the basis of facts narrated in chargesheet, the petitioner accused was allowed anticipatory bail. He further submitted that on basis of fact, no case under any of provisions of IPC is made out rather facts suggest that on search the police has found that there was adulteration or manufacturing of spurious edible articles but no proceedings under the Prevention of Food Adulteration Act was initiated. He further referred the order dated 08.05.2002 passed by the Trial Court and submitted that without following the provision of Prevention of Food Adulteration Act, an FIR was registered by police and a chargesheet was filed. He further submitted that the charge-sheet has been filed only on basis of presumption and there is not a single iota of evidence to connect the petitioner-accused Sandeep Garg with alleged act. He further referred the order passed by Trial Court and submitted that the petitioner accused was discharged after considering the material on record, but the Revisional Court only on the basis of assumption and presumption has remitted back the matter to Trial Court for fresh consideration. He further submitted the reason assigned by the Revisional Court is not in accordance with law rather without assigning a sufficient reason,

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the revision was allowed by learned Additional Sessions Judge. At last, he submitted that this is a false case prepared by police and police has no authority to act under the Prevention of Food Adulteration Act.

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Aforesaid contentions were opposed by learned Public Prosecutor.

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Heard learned counsel for the petitioners and learned Public Prosecutor. Perused the record.

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On basis of an information received by SHO, P.S. Jhotwara about manufacturing of spurious and fake Desi Ghee, a raid and search was conducted and on basis of search report, FIR No.275/2000 under Section 420 IPC was registered at P.S. Jhotwara, District Jaipur. After investigation, police has filed charge-sheet against Trilok Chand, Sandeep Garg and Rajendra Vijayvergiya under Section 420 of IPC.

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While considering the charge on 08.05.2002, the Trial Court has found that in absence of compliance under the provision of Prevention of Food Adulteration Act, a charge under Section 420 IPC is not made out and ultimately discharged the accused Trilok Chand, Sandeep Garg and Rajendra Vijayvergiya. The State has preferred a revision petition before learned Sessions Judge Jaipur City and same was transferred to learned Additional Sessions Judge No.2, Jaipur City, Jaipur. On 05.01.2006, learned Additional Sessions Judge disagreeing with opinion expressed by the Trial Court, has remitted back the matter after setting aside the order of discharge passed by the Trial Court.

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A perusal of order dated 05.01.2006 clearly indicate that without assigning any reason, the Revisional Court has drawn a

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conclusion that selling spurious Desi Ghee to general public is an offence punishable under Section 420 IPC. This conclusion is not based on any of material on record. The Revisional Court neither referred any evidence on record nor any provision of law. Moreover, the Revisional Court has not considered that whether the essential elements to constitute an offence under Section 420 IPC is made out or not. The Revision Court was of the view that if police has filed a charge-sheet then without groundless case accused should not be discharged.

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When we consider the provision of Sections 239 and 240 of Cr.P.C. then Section 239 of Cr.P.C. deals with discharge of an accused person and it empowers the Magistrate to discharge an accused, if after considering the police report and other relevant documents, the charge appears to be groundless. This provision is applicable in case of warrant trial case. Though, the roving enquiry to discharge any accused is not permissible, but a Magistrate Court is duty bound to consider the case of discharge under Section 239 of Cr.P.C. A similar provision is there under Section 227 Cr.P.C. A Magistrate cannot frame a charge without considering the provision of Section 239 of Cr.P.C. The Revisional Court without considering the provision of Section 239 set aside the order of discharge. Moreover, the Revisional Court instead of giving a reasoned finding about the prima facie case against the petitioner-accused has remitted back the matter again to the Court of Magistrate. The tendency of remand is not appreciable in each and every case. If the Revisional Court is of the view that the matter requires consideration then same has to be decided on

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basis of material on record and not on basis of surmises and conjectures.

¶38

A perusal of order of Revisional Court clearly indicate that the reasons are missing and an order without reason cannot be appreciated. It is mandatory for Revisional Court to draw a conclusion that the Trial Court acted illegally, failed to exercise its jurisdiction or has committed material illegality.

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A perusal of material on record indicate that the Trial Court has applied its own mind while considering the application for discharge. Police has filed charge-sheet under Section 420 IPC and essential ingredients are required to be present before framing a charge. The Trial Court has relied upon several judgment referred in order dated 08.05.2002, before passing an order to discharge. The Trial Court has also relied upon provision under the Prevention of Food Adulteration Act, but the Revisional Court without considering those provisions has set aside the order. Thus, the Revisional Court acted contrary to provision of law while setting aside the order and remitting the matter.

¶40

In view of discussion made herein above, the revision petition preferred by petitioner-accused Sandeep Garg is hereby allowed and order dated 05.01.2006 passed by learned Additional Sessions Judge No.2, Jaipur City, Jaipur is set aside.

¶41

As a result, the order dated 08.05.2002 in Criminal Case No.149/2001 passed by the Trial Court is restored. 14. Misc. application, if any, stands disposed of.

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(ASHOK KUMAR JAIN),J

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GAURAV /181-S

Trilok Chand Garg and Ors. v. State

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Trilok Chand Garg and Ors. v. State

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