SAMALIYA KISHANLAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS is a revision by an accused directed against an appellate order of his re -trial.

(2.) THE prosecution story in brief was that on 10 -10 -1985 a Food, Inspector by name R. C. Mishra (P. W. 1) had visited along with flying squad the shop of accused Samaliya and purchased a sample of black pepper corns (whole) from him. The sample on being sent for analysis was found to be adulterated. The trial of the accused was held in the Court of Chief Judicial Magistrate, Shivpuri, Shri O. P. Sharma, who tried the case according to warrant -case procedure instead of summarily. The accused was convicted on conclusion of the trial of the offence under Section 7(i)/16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 and sentenced to rigorous imprisonment for 6 months and fined Rs. 1,000/ -, in default to further rigorous imprisonment for 6 months, vide judgment dated 64 -1989. The accused went in appeal to the Court of Sessions, Shivpuri. The First Additional Sessions Judge, Shivpuri, Shri W. A. Shah, who heard the appeal, held that section 16A of the Prevention of Food Adulteration Act, 1954, was attracted. The Chief Judicial Magistrate was specially empowered under that provision to try the case in a summary way. But the said Magistrate tried the case as a warrant case even without recording an order in terms of the proviso that it was undesirable to try the case summarily. The mandate contained in Section 16A was that the case shall be tried summarily. That was a mandatory provision which had been infracted. The entire trial was therefore, vitiated On that view, without considering the merits of the case, the learned appellate Court set aside the conviction and sentence of the accused but at the same time directed re -trial of the accused for the same offence by remanding the case, vide judgment dated 2 -12 -1989. Aggrieved by that judgment, the accused has now come in revision.

(3.) IT will be seen that Chapter XXIX of Criminal Procedure Code, 1973, deals with appeals. Powers of appellate Court are described in Section 386 contained in that Chapter. The appellate Court has undoubtedly power to direct a re -trial in an appeal from an order of acquittal as well as in an appeal from a conviction. Reference may be made to Clauses (a) and (b)(i) of Section 386. Such power may be exercised even in an appeal for enhancement of sentence vide Clause (c)(i). At the same time, it is an established legal principle that power ordering re -trial should be sparingly used and only for grave reasons. The considerations which should weigh with an appellate Court for directing re -trial cannot be mathematically enumerated. There is however, preponderance of judicial opinion in favour of the view that re -trial should not be ordered where there has been a long delay between the commission of the offence and the trial, in consequence of an order of retrial. If the sword of Damocles was kept hanging for a long time, the accused should be permitted to rest in peace without a further trial. In this regard, it may not be possible to lay down any rigid limit as was sought to be contended by learned counsel for the petitioner, that if the original trial had lasted for 3 years or more, the re -trial should not be ordered. It was inordinate delay which led the Supreme Court in S. Guin v. Grindlays Bank Ltd., AIR 1986 SC 289 to take the view that proceedings should have been ordered to be dropped rather than re -trial ordered. In that case, accused persons were acquitted of the charge of obstructing bank officers from entering bank premises and transacting normal business. The Grindlays Bank Ltd. went in appeal against the acquittal before the High Court. That appeal remained pending before the High Court for 6 years. While disposing of the appeal, the High Court felt that the trial Court had missed the essence of the offences with which the accused had been charged and, therefore, there was failure of justice. The High Court, therefore, set aside the judgment of acquittal passed by the Magistrate and remanded the case for re -trial for offences punishable under Section 341 read with Section 34 or 149, Indian PenalCode. In appeal by special leave by the accused persons, the Supreme Court held that having regard to the inordinate delay of nearly 6 years that had ensued after judgment of acquittal, the nature and magnitude of the offences alleged to have been committed by the appellants, and the difficulties that may have to be encountered in securing the presence of witnesses in a case of that nature nearly 7 years after the incident, it would have been proper for the High Court to have dismissed the appeal rather than to have ordered re -trial. The termination of criminal proceeding in that way would have secured the ends of justice. The Supreme Court in those circumstances set aside the judgment of the High Court and restored the order of acquittal passed by the Magistrate. Again, in Srinivas Pal v. Union Territory of Arunachal Pradesh, AIR 1988 SC 1729, the Supreme Court was dealing with a case where appellant Srinivas Pal was accused of offences under Sections 279, 304A and 338, Indian Penal Code. The accident had taken place on November 20, 1976 in a jeep, which was said to have been driven by the appellant. Delivering judgment on July 19, 1988, the Supreme Court observed that: