Delhi High Court
M/S. Barista Coffee Company ... vs Govt. Of Nct Of Delhi on 8 March, 2011
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: March 08, 2011
+ CRL.M.C.NO.3363/2010
M/S. BARISTA COFFEE COMPANY LIMITED
& ANR. ....PETITIONERS
Through:Mr.D.C.Mathur, Senior Advocate with
Mr.Shashank Sudhir, Advocate.
Versus
GOVT. OF NCT OF DELHI .....RESPONDENT
Through: Ms.Fizani Husain, APP.
WITH
CRL.M.C. NO. 3365/2010
C.RAMANATHAN SITARAMAN & ORS. ....PETITIONERS
Through:Mr.Sidharth Luthra, Senior Advocate with
Mr.Trideep Pais, Advocate
Versus
STATE .....RESPONDENT
Through: Ms.Fizani Husain, APP.
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.(ORAL)
1. Short point for determination in the above referred petitions
under Section 482 Cr.P.C. is whether a revision court can set aside the
Crl.M.C.Nos.3363 & 3365/2010 Page 1 of 6
order of the lower court outside of a party to the proceedings without
serving the party with a notice and giving the party an opportunity of
being heard?
2. Briefly stated, facts relevant for the disposal of the above
petitions are that a complaint was filed against the petitioners and
others by the Food Inspector, Directorate of PFA for commission of
offence punishable under Section 7/16 of Prevention of Food
Adulteration Act, 1954.
3. From the complaint filed against the petitioners and others, it
transpires that Food Inspector Baljit Singh on 27.12.2006 purchased
sample of tomato ketchup (3 x 1200 gms) from petitioner Amit Kumar
who was found conducting business of M/s. Barista Expresso Bar 18,
Community Centre, New Friends Colony, New Delhi for the purpose of
analysis. One such sample was analysed by public analyst on
11.01.2007 and as per the opinion of public analyst, the sample was
misbranded as the size of level on the sample was only 17.58% of size
of the packet which amounted to violation of Rule 36(2) of PFA Rules,
1955.
4. Learned ACMM declined to take cognizance of the complaint filed
by Food Inspector Baljit Singh on the ground that the complaint was
time barred. The view taken by the learned ACMM was that Section
16A of PFA Act, 1954 provides that all the offences under Section 16(1)
of PFA Act shall be tried in a summary manner and it shall be lawful for
Crl.M.C.Nos.3363 & 3365/2010 Page 2 of 6
the Magistrate to pass a sentence of imprisonment for a period not
exceeding one year. Thus, he took the view that since the offence
under complaint was not punishable for imprisonment for a period not
exceeding one year from the date of offence i.e. the date of receiving
report of the public analyst as such the complaint was time barred.
5. Feeling aggrieved by the aforesaid order of learned ACMM,
respondent filed a revision petition and learned Additional Sessions
Judge without serving a notice of revision petition on the petitioners
and giving them an opportunity of being heard vide orders dated
18.08.2010 set aside the order dated 19.11.2009 passed by the
learned ACMM and directed the trial court to proceed with the trial of
the case in accordance with law.
6. Feeling aggrieved by the aforesaid orders, the petitioners have
filed instant petitions under Section 482 Cr.P.C. seeking quashing of
the order of learned Additional Sessions Judge dated 18.08.2010.
7. Learned Shri Dinesh Mathur, Sr. Advocate appearing for the
petitioners M/s. Barista Coffee Company Limited and Amit Kumar as
well as learned Shri Sidharth Luthra, Sr. Advocate appearing for the
petitioners C. Ramanathan Sitaraman and others have contended that
the impugned order of learned Additional Sessions Judge is liable to
quashed firstly on the ground that the revision petition was filed after a
delay of 140 days and application for condonation of delay was filed,
but the learned Additional Sessions Judge without deciding the
Crl.M.C.Nos.3363 & 3365/2010 Page 3 of 6
application of condonation of delay went on to decide the revision
petition that too without serving the petitioners with the notice of
revision petition and affording them an opportunity of being heard. In
support of this contention, the petitioners have relied upon the
judgment in the matter of State of Maharashtra Vs.
Sharadchandra Vinayak Dongre and Ors., AIR 1995 SC 231.
8. In State of Maharashtra (Supra), the Supreme Court while
dealing with a similar situation, inter alia, observed thus:
"4. The High Court found that the Chief Judicial Magistrate, on 21.11.1986,
had allowed the application for condonation of delay in filing the charge-
sheet, without recording any reasons and without hearing the respondents
and behind their back. The High Court further found that the Chief Judicial
Magistrate was aware from the application filed by the prosecution that the
charge-sheet was "incomplete" and as such, it could not have taken
cognizance of the offence and it had no jurisdiction to issue the process
against the respondents. The proceedings, including the issuance of process,
were accordingly quashed.
5. In our view, the High Court was perfectly justified in holding that the
delay, if any, for launching the prosecution, could not have been condoned
without notice to the respondents and behind their back and without
recording any reasons for condonation of the delay. However, having come
to that conclusion, it would have been appropriate for the High Court,
without going into the merits of the case to have remitted the case to the
Trial Court, with a direction to decide the application for condonation of
delay afresh after hearing both sides. The High Court however, did not
adopt that course and proceeded further to hold that the Trial Court could
not have taken cognizance of the offence in view of the application filed by
the prosecution seeking permission of the Court to file a "supplementary
charge-sheet" on the basis of an "incomplete charge-sheet' and quashed the
order of the CJM dated 21.11.1986 on this ground also. This view of the
High Court, in the facts and circumstances of the case is patently erroneous.
......
......
9. Since the Chief Judicial Magistrate condoned the delay for launching the
prosecution, without notice to the respondents and without affording any
opportunity to the respondents to have their say, the case deserves to be
remitted to the Chief Judicial Magistrate for deciding the application filed
by the prosecution seeking condonation of delay, if any, afresh in
accordance with law after hearing both the parties. It is after the decision of
the application for condonation of delay that the Chief Judicial Magistrate
shall proceed further in the matter. The finding of the High Court that the
CJM could not take cognizance of the offence on the basis of 'incomplete'
police report, for the reasons already recorded, is, however, set aside. The
Chief Judicial Magistrate shall proceed further in accordance with law after
deciding the application seeking condonation of delay. Nothing said herein
above, shall, however, be construed as any expression of opinion on the
merits of the case."
9. In P. Sundarrajan Vs. R. Vidhya Sekar, (2004) 13 SCC 472,
the Supreme Court took the view that the order passed by the High
Court without issuing notice to the appellant(respondent) was ex facie
unsustainable in law being violative of the principles of natural justice
as also the requirement of law to hear a party before passing an
adverse order against him.
10. From the above pronouncements of Supreme Court, it is obvious
that a superior court sitting in appellate or revision jurisdiction is under
legal obligation to put a party on notice and give him/her an
opportunity of being heard before passing an adverse order against
said party. In the instant case, the order dated 19.11.2009 of the
learned ACMM dismissing the complaint was in favour of the
petitioners. The learned Additional Sessions Judge vide the impugned
order has reversed that order to the detriment of the petitioners that
too without serving the petitioners with notice of revision petition and
giving them opportunity of being heard. Not only this, perusal of the
record of revision court reveals that an application under Section 5 of
the Limitation Act for condonation of delay in filing of the revision
petition was also moved, but the learned Additional Sessions Judge
without deciding the issue of condonation of delay has gone on to
decide the revision petition without putting the petitioners on notice.
The aforesaid order, in my considered view, is against the principles of
natural justice and is not sustainable under law.
11. The impugned order of the learned Additional Sessions Judge
dated 18.08.2010 is accordingly set aside. Matters are remanded back
to the court of concerned Additional Sessions Judge with the direction
that he shall decide the application for condonation of delay in filing as
also the revision petitions after giving due opportunity of being heard
to the petitioners.
12. Parties are directed to appear before the learned Additional
Sessions Judge on 21.03.2011.
13. Revision petitions are disposed of accordingly.
14. The record of trial court as also the revision court be sent back to
the concerned courts immediately.
(AJIT BHARIHOKE)
JUDGE
MARCH 08, 2011/pst
