|HC of MAHARASTRA at MUMBAI|
2016-10-10Criminal Writ Petition No 846 of 2016J. S.S.ShindeRajendra vs State of MaharastraCrPC 482
Court Can't Rely on Police Report
1) Indisputably, the cognizance of the offence punishable under section 27 (b) (ii) of the Act alleged to have been committed by the petitioner has not been taken by the learned Judicial Magistrate, First Class on the basis of the complaint as defined under section 2 r(d) of the Code of Criminal Procedure, u 1973, filed by respondent No. 2 - the Drugs Inspector. Consequently, the cognizance of the said offence taken on the basis of the chargesheet filed by the police officer cannot be said to be legal. The learned Judicial Magistrate First h Class had no jurisdiction to take cognizance of the said offence against the petitioner on the basis of the chargesheet filed by the police officer ignoring the provisions of section 32 of the Act.
2) The learned counsel for the petitioner relies on the judgment in the case of G. Sagar Suri and another m Vs. State of U.P. and others (2000) 2 S.C.C. 636, wherein it has been held that the High Court can exercise the jurisdiction of quashing criminal proceedings even when the application for discharge of the accused is pending with the trial Judge. However, such power should be exercised cautiously to prevent abuse of process of court. He further cited the judgment in the case of Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others 1998 (1) Mh.L.J. 599 (S.C.), wherein also it has been held that though the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under section 482 of the Code or Article 227 of the Constitution to have the proceedings quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial.
3) In view of the above facts and circumstances of the present case and the rulings referred to above, we are of the y considered view that the continuation of a criminal proceedings against the petitioner would be a sheer abuse of process of the Court. In the result, we allow the writ petition with the following order : (i) The criminal writ petition is allowed. (ii) The criminal proceedings bearing Summary Criminal Case No. 671 of 2014, instituted in the Court of the Judicial Magistrate First Class, Chalisgaon, against the petitioner for the offence punishable under section 27 (b) (ii) of the Drugs and Cosmetics Act, 1940, are quashed and set aside.DOWNLOAD | GOOGLE DOCS | VIEW