- (1.) Learned counsel for the petitioner has contended that the judgement dt. Nov. 9, 1989 of the learned Addl. Sessions Judge Karauli, Camp Hindaun, remanding the case to the trial Court for putting a question under S.313, Cr. P.C. to the accused in respect of the report of Director, Central Food Laboratory that the article of food was adulterated, is not in accordance with law because besides this point, other points were also taken but the learned appellate Court did not consider other points, and had those points been considered, according to the learned counsel for the petitioner, it would have resulted in the acquittal of the accused petitioner.
(2.) So far as the relevant facts are concerned, they are these. Food Inspector purchased Ice Candey from the accused petitioner for the purpose of analysis. It was divided in three equal parts and after adding the requisite quantity of formalin the samples were sealed, one of which was sent to Public Analyst, who on examining the sample found the same to be adulterated as it contained sacreen. The report of the Public Analyst was given to the accused petitioner and after a complaint was filed, during the trial of the case an application was filed on behalf of the accused petitioner that there is another sample which is lying in the Court or the local authorities and that sample may be sent to the Director, Central Food Laboratory. The application of the petitioner was allowed and the sample was sent to the Director Central Food Laboratory who also on examining the same found to be adulterated. Learned Magistrate convicted the accused petitioner under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter called as the Act). The accused petitioner filed an appeal before the learned Sessions Judge and in the appeal besides the point that the report of the Director of Central Food Laboratory stated under S.313, Cr. P.C., there were other points also. The learned appellate Court placing reliance on the case of Jagdish. Prasad v. State of Rajasthan, 1988 Cri LJ (Raj) 620, allowed the appeal and remanded the case back to the learned Magistrate with the direction that he should put questions in respect of the report of Director, Central Food Laboratory, to the accused petitioner under Sec. 313, Cr. P.C.
(3.) It appears that in the aforesaid case of Jagdish Prasad (supra) this court placed reliance on Hatesingh Bhagatsingh v. State of Madhya Bharat, AIR 1953 SC 468 , Shamu Balu Chaugule v. State of Maharashtra, AIR 1976 SC 557 and Harijan Megha Jesha v. State of Gujarat, AIR 1979 SC 1566. In the case of Hatesingh Bhagatsingh (supra) the Supreme Court was considering the circumstances appearing in that case as the case was based on circumstantial evidence but those circumstances were not put to the accused under S.342, Cr. P.C. The Supreme Court in para 25 said that - "We have a further comment to make. Both the Sessions Judge and the High Court have attached importance to the fact that both accused absconded, but at no stage of the case have they been asked to explain this. We have stressed before the importance of putting to the accused each material fact which is intended to be used against him and of affording him a chance of explaining if it he can. We regret to find that this rule is so often ignored." In the case of Harijan Megha Jesha (supra) the Supreme Court was considering where the High Court had set aside the judgement of acquittal recorded by the Sessions Judge. The Supreme Court observed that the view of the Sessions Judge cannot be said to be perverse and that the High Court should not have interfered with an appeal against the acquittal. A piece of evidence that on personal search of the appellant, a chadi was found which was bloodstained and according to the report of Sereologist, it contained human blood, was not put under Sec. 313, Cr. P.C. the Court said that having regard to these circumstances the testimony of P.W. 1 is not free from doubt. So far as the case of Shamu Balu Chaugule (supra) is concerned it may be stated that it was wrongly reported in the case of Jagdish Prasad (supra). In the case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 the Court was not only considering the fact that in the statement under Sec. 342, Cr. P.C. various circumstances were not put to the accused, but also made adverse comments in respect of the case of the prosecution. There were so many defects in the case of prosecution and they were also taken into consideration but the questions were not put to the accused in respect of various circumstantial evidence. In my opinion, every error or omission or non-compliance with the provisions of S.313 or 342, Cr. P.C. (old) does not necessarily vitiate the trial and it will depend on the nature of the questions which have not been put to the accused. In the case of Ajmer Singh v. State of Punjab, AIR 1953 SC 76 in para 9 the Court said - "It is well settled that every error or omission not in compliance with the provisions of S.342 does not necessarily vitiate a trial. Errors of this type fall within the category of curable irregularities, and as held in Tara Singh's case, 1951 0 SCR 729, the question whether the trial is vitiated, in each case depends upon the degree of the error and upon whether prejudice has been or is likely to have been caused to the accused." In that case the Supreme Court further observed that at one stage of the argument it was inclined to order a retrial of the accused in view of the defective examination of the accused by the Sessions Judge, but on further thought the Court had reached the conclusion that the High Court was right in the view that the defective procedure followed by the Sessions Judge in this respect has not occasioned any prejudice to the accused. Therefore, the law can be said to be well settled that it is not every error which can be held to have vitiated the trial, and the Court has to see whether any prejudice has been caused or is likely to have been caused thereby and it cannot be laid down as a general proposition of law that, every error or omission will vitiate the trial. Now the question is as to what is the situation, which can be said to have caused prejudice to the accused or is likely to have caused prejudice to the accused and there has been failure of justice. In the case of Jagdish Singh, 1988 0 CrLR 620 (supra) this Court, if at all can be said to have laid down the law, which in my opinion it has not, that the prejudice to the accused is not necessary and whether there is prejudice or not, or whether there is possibility or likelihood of the prejudice or not, the trial shall be vitiated, I with due respect, will. not agree with it. In my opinion, the Court has to see whether in a particular case, the error or omission has prejudiced the trial or is likely to have caused the prejudice, only then the trial can be said to be vitiated otherwise not.;