Nandram Khemraj Vs. State of Madhya Pradesh and anr. - Court Judgment

Excerpt:
- indian penal code, 1890.sections 307 & 324: [lokeshwar singh panta & b.sudershan reddy,jj] assault proof - appellant allegedly dealt sickle blow to deceased - testimony of eye-witnesses showed that sudden altercation ensued between appellant and deceased - no evidence to indicate any previous enmity between parties - single blow of sickle had been inflicted by appellant on back of deceased - incised wound allegedly inflicted by appellant - however opinion of doctor proved that deceased had not died due to direct result of said injury held, appellant is therefore liable to be convicted under section 324 of i.p.c., sentence of 3 years imprisonment reduced to period undergone by appellant considering mental agony suffered by him - 3. at the time of trial, the prosecution had examined food inspector shri chandrakant karandikar on 24-7-1979 before the stage of framing of charge against the accused (present petitioner). the prosecution had also examined vijay singh onkar as well as baboolal naryan as prosecution witnesses before framing of the charge stage. garg for the petitioner made reference to provisions of section 33 of the indian evidence act as well as relevant provisions of the code in respect of trial of warrant cases. it cannot be denied the opportunity to do so as section 138 of the evidence act distinctly confers this right of cross-examination on the opposite party. in the cases which are revolving around the sample of milk, cross-examination of such food inspector is important in view of other important points also like addition of formalin, stirring of the sample milk or not stirring of the sample milk, stirring of milk sample in the bottle in bottles etc. it is to be noted at this juncture that weapon of cross-examination is a powerful weapon by which the defence can separate truth from falsehood piercing through the evidence given by the witness, who has been examined in examination-in-chief. if an opportunity is not given to the accused to separate the truth from the evidence given by the witness in examination-in-chief, it would be as good as cutting his hands, legs and mouth and making him to stand meekly before the barrage of statements made by the witnesses in examination-in-chief against him for sending him to jail.orderj.g. chitre, j.1. the petitioner is hereby assailing correctness, propriety and legality of the order passed by the chief judicial magistrate, dhar, in the matter of criminal case no. 1041/78 which has been confirmed by the second additional sessions judge, dhar, in criminal appeal no. 108/84. the learned c.j.m., dhar had convicted the petitioner for offences punishable under section 7(1) read with section 16(1)(a)(i) of the prevention of food adulteration act, 1954 (hereinafter referred to as adulteration act'). the learned c.j.m. had sentenced the petitioner with r.i. for six months and fine of rs. 1,000/-, in default further r.i. for three months' for the above mentioned offences.2. the prosecution case, in brief, can be stated as mentioned under :on 5-9-1978 food inspector purchased 660 m.l. of milk from the petitioner for the purpose of analysis. the said milk was stored by him in dry and clean bottles as per procedure. one bottle was sent to the office of the public analyst and two other bottles were sent to local authority. the public analyst found that the said milk was adulterated and was not conforming the standard prescribed for buffalo milk. the said milk was containing fat 6.1 per cent and solids non fat 7.872 per cent.3. at the time of trial, the prosecution had examined food inspector shri chandrakant karandikar on 24-7-1979 before the stage of framing of charge against the accused (present petitioner). the prosecution had also examined vijay singh onkar as well as baboolal naryan as prosecution witnesses before framing of the charge stage. the present petitioner did not cross-examine any of the witnesses. after the petitioner (accused) was examined under section 313, criminal procedure code, 1973 (hereinafter referred to as 'code') on 6-11-1984, shri karandikar was not available for cross-examination because he had died.4. the learned c.j.m. pronounced the judgment on 29-11-1984 in which he convicted and sentenced the petitioner as mentioned above. in the said judgment the learned c.j.m. held that no prejudice was caused to the petitioner (accused) because of non-availability of shri karandikar, food inspector, for cross-examination because when he had opportunity to cross-examine him, he did not cross-examine him. the learned c.j.m. held that in view of section 33 of the evidence act, if the witness is dead or otherwise not available, the result of not recalling the witness for cross-examination is not that his previous evidence can be expunged because the evidence which he gave before the charge continues to be relevant under section 33 of the evidence act. in view of that, he accepted the evidence of shri karandikar, food inspector, against the petitioner and passed the order of conviction and sentence against the petitioner solely relying on it. it is to be mentioned here that the panch-witnesses had not supported the evidence of food inspector shri karandikar.5. the act of the learned c.j.m. accepting the evidence of karandikar, food inspector, and holding that by his evidence prosecution had proved the guilt against the accused (present revision-petitioner) and thereby convicting and sentencing the applicant for the offences mentioned above is the subject matter of challenge in this revision-petition.6. before the learned a.s.j. dhar, it was contended on behalf of the present petitioner that no advocate named joshi was appearing for the present petitioner in the said criminal case which was before the learned c.j.m., dhar. therefore, the mention of shri joshi advocate in the order-sheet, below, the evidence of food inspector chandrakant karandikar, was totally incorrect. it was contended on behalf of the petitioner that shri joshi advocate had not filed vakalatnama for the present petitioner in the said proceedings. the learned a.s.j. while dealing with this contention held that there was no substance in that contention because it was not necessary for an advocate to file vakalatnama on behalf of the accused for appearing and conducting the case for the accused. according to the learned a.s.j. the accused can engage any advocate for defending him and if the advocate declares that he would defend such an accused, it is sufficient. the learned a.s.j. also held that when the accused had been given the opportunity of cross-examining the witness but he did not cross-examine the witness such evidence can be used against him for basing conviction against him. he held that in the present matter the accused (present petitioner) was given opportunity of cross-examining shri karandikar, food inspector, but he did not utilise that opportunity and thereafter shri karandikar died in an accident and, therefore, he could not be called for cross-examination. according to the learned additional sessions judge, in these circumstances, the evidence of shri karandikar could be acted upon for basing conviction against the accused (the present petitioner). he, thus dismissed the grievance and contentions of the present petitioner in the appeal before him. he dismissed the said appeal.7. in the present matter shri r. s. garg had raised two main points. first that shri joshi was not appearing on behalf of the accused as his advocate, and, therefore, declaration given by him that he did not want to cross-examine shri karandikar could not go against the petitioner and consequently the evidence of shri karandikar in absence of cross-examination on behalf of the present petitioner could not be used against him for basing conviction. for fortifying his argument on second point, the learned counsel shri r. s. garg for the petitioner made reference to provisions of section 33 of the indian evidence act as well as relevant provisions of the code in respect of trial of warrant cases. he argued that in the present matter, a warrant case, the present petitioner did not have a right of cross-examination as a matter oil right before framing of the charge and, therefore, the evidence of shri karandikar, food inspector, could not be used against him for recording conviction and sentence against him by saying that when opportunity was given to him he did not cross-examine shri karandikar.8. shri g. desai, deputy government advocate, appearing for the state, justified the said order as proper, correct and legal by submitting that evidence of such witness can be used in view of the provisions of section 33 of the evidence act.9. a reference was made during the course of the argument to some judgment for justifying the arguments.10. in the matter of kulbhushan sharma, petitioner v. state, respondent a judgment reported in 1976 cri.l.j. 1433, it has been held by jammu and kashmir high court that section 33 of the evidence act provides that when a witness is dead or cannot be found, or is incapable of giving evidence or is kept out of the way by the adverse party, or if his presence cannot be obtained without any amount of delay or expense which, under the circumstances of the case, the court considers unreasonable, it may direct that the evidence given by such a person in judicial proceedings be taken as relevant for the purpose of proving in a subsequent judicial proceeding or in a latter stage of the same judicial proceedings, the truth of the fact which it asserts. section 33 of the evidence act provides that evidence given by a witness in a judicial proceeding is relevant for the purpose of proving particular fact in later stage of the same judicial proceeding, when the witness cannot be found or dead.11. in the matter of dwarkadas and ors. v. state and others, a judgment reported in 1979 cri.l.j. 550, jammu and kashmir high court observed that section 138 of the evidence act not only lays down the manner of examining a particular witness but also impliedly confers on the party right of examination-in-chief, cross-examination and re-examination. the section creates three distinct rights so far as the examination of a witness is concerned. the right of cross-examination available to opposite party is a distinct and independent right, if such party desires to subject the witness to cross-examination. it cannot be denied the opportunity to do so as section 138 of the evidence act distinctly confers this right of cross-examination on the opposite party. the right of cross-examination is so fundamental and basic that it could not be taken away by a specific provision in that regard under an enactment. the right of cross-examination not only is referable to evidence act itself but one of the principles of natural justice is that such evidence may not be read against a party if the same has not been subjected to cross-examination or at least an opportunity has not been given for cross-examination.12. in the matter of turner morrison and co. v. k. n. tapuria and others, a judgment reported in 1933 cri.l.j. 3384, bombay high court held that when accused had an opportunity of cross-examining a witness but declined to do so and thereafter the said witness was not available for cross-examination, the evidence of such witness recorded is admissible in evidence but that will have to be true to that account. it is to be noted that in the said case the said witness was cross-examined by one co-accused in detail and the second accused declined to cross-examine him when opportunity was given to him for cross-examination.13. the present case was on a private compliant made by the food inspector and was tried by warrant procedure. the provisions for it are embodied in the chapter xix of the code. section 244 of the code provides that when, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a magistrate, the magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. the magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. section 245 of the code provides that if, upon taking all the evidence referred to in section 244, the magistrate considers for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the magistrate shall discharge him. sub-section (2) of it provides that nothing in this section shall be deemed to prevent a magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such magistrate, he considers the charge to be groundless.14. section 246 of the code provides that if, when such evidence has been taken, or at any previous stage of the case, the magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this chapter, which such magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. sub-sections (2) and (3) deal with the action to be taken by the magistrate towards reading and explaining the charge to the accused and recording his plea in that context. sub-section (4) of section 246 provides that if the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and if so, which of the witnesses for the prosecution whose evidence has been taken. sub-section (5) of the said section provides that if he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. sub-section (6) provides that the evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged:15. thus, it would be quite clear from the language used in above mentioned sections that in a private complaint the accused does not have a right to cross-examine the witness examined by the prosecution before charge stage. in the interest of justice and as a matter of convenience he has been given a right to cross-examine those witnesses. it is not the right which the accused persons having in committal proceeding to cross-examine the witnesses examined on behalf of the prosecution, when cases used to be committed to court of session under code of criminal procedure, 1898. therefore, it would be totally against the spirit of law to blame the accused (revision-petitioner) in the way in which two courts below have blamed him for not cross-examining the food inspector shri karandikar before the stage of framing of charge in the present matter.16. in a case filed against the accused for offence punishable under the provisions of food adulteration act, the evidence given by the food inspector is of immense importance. food adulteration cases revolve mainly around technical points. in such cases the food inspector who collects the sample and sends it to the office of the public analyst is required to follow certain procedure for the purpose of collecting the sample, sealing it and sending it to the office of public analyst. thereafter also he is obliged to follow certain procedure in sending two samples to the local authority. thereafter, he has to give a notice to the accused after receipt of the report of the public analyst and after filing of complaint against the accused within the prescribed time enabling such an accused to get his sample analysed from central laboratory. in the cases which are revolving around the sample of milk, cross-examination of such food inspector is important in view of other important points also like addition of formalin, stirring of the sample milk or not stirring of the sample milk, stirring of milk sample in the bottle in bottles etc. his cross-examination is also important in respect of things which are relevant in view of the rules 17 and 18 under the adulteration act. when the panch-witnesses do not support the case of the food inspector mentioned in the complaint, the cross-examination of food inspector assumes more importance.17. when the food inspector is not cross-examined on necessary details in view of the technicalities involved in a case under relevant provisions of the adulteration act, and when the panch-witnesses have* not supported his case, if in such cases such evidence is acted upon for basing the conviction against the said accused, in my opinion, it would cause great miscarriage of justice. it is to be noted at this juncture that weapon of cross-examination is a powerful weapon by which the defence can separate truth from falsehood piercing through the evidence given by the witness, who has been examined in examination-in-chief. by the process of cross-examination the defence can test the evidence of a witness on anvil of truth. if an opportunity is not given to the accused to separate the truth from the evidence given by the witness in examination-in-chief, it would be as good as cutting his hands, legs and mouth and making him to stand meekly before the barrage of statements made by the witnesses in examination-in-chief against him for sending him to jail. law does not allow such thing to happen.18. the record shows that on 29-1-1984 sarvashri mandloi, mandlik, ravi dubey, sushil dube and k. d. kamal, advocate filed vakalatnama 'memo of appearance' for the accused (the present revision-petitioner). the record also shows that on 8-7-1979 advocates shri nisar ahmad and manoharlal joshi filed vakalatnama (memo of appearance) on behalf of the revision-petitioner. on 24-7-1979 the evidence of food inspector karandikar was recorded. therefore, it will have to be held that shri joshi, advocate appeared for the revision-petitioner. however, the learned a.s.j. has committed an error in holding that for defending the accused it is not necessary to file vakalatnama (memo of appearance) by an advocate. his opinion that any advocate can by mere declaration before the court defend the accused is not correct. such can be done by a senior counsel duly recognized by the high court or a barrister, who has been instructed by an advocate on record. the learned a. s.j., however, opined that in the present matter shri joshi was appearing for revision-petitioner and he had filed his vakalatnama (memo of appearance). it is true if the record is perused.19. whether shri joshi was advocate for the revision-petitioner or not, would not be a decisive factor in this matter, because what is important is whether the revision-petitioner was having a right to cross-examine karandikar, food inspector before the stage of framing of charge. whether the accused can be convicted on such evidence of shri karandikar, food inspector, who has not been cross-examined on behalf of the revision- petitioner (accused) or not is the decisive question in this matter. as i have discussed above, in food adulteration cases convicting the accused on the evidence of the food inspector, who has not been cross-examined by the accused would cause a serious miscarriage of justice, in view of the. peculiar characteristic of the case under the provisions of the food adulteration act. thus, in the present matter, the learned c.j.m. has committed an error in doing so and that has been confirmed by the learned a.s.j., who dismissed the appeal of the revision-petitioner. both the courts below thus committed an error of law which has caused a serious miscarriage of the justice and, therefore, this court will have to allow this revision-petition and set aside the order of conviction and sentence passed against the revision-petitioner by the c.j.m., dhar in criminal case no. 1041/78 which has been confirmed by the second a.s.j., dhar, in criminal appeal no. 108/84, it is hereby set aside by allowing this revision petition. the revision-petitioner is hereby acquitted. fine, if any, deposited by him be refunded to him. the bail-bond furnished by the revision-petitioner stands discharged.

Judgment:
ORDER

J.G. Chitre, J.

1. The petitioner is hereby assailing correctness, propriety and legality of the order passed by the Chief Judicial Magistrate, Dhar, in the matter of Criminal Case No. 1041/78 which has been confirmed by the Second Additional Sessions Judge, Dhar, in Criminal Appeal No. 108/84. The learned C.J.M., Dhar had convicted the petitioner for offences punishable under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as Adulteration Act'). The learned C.J.M. had sentenced the petitioner with R.I. for six months and fine of Rs. 1,000/-, in default further R.I. for three months' for the above mentioned offences.

2. The prosecution case, in brief, can be stated as mentioned under :

On 5-9-1978 Food Inspector purchased 660 M.L. of milk from the petitioner for the purpose of analysis. The said milk was stored by him in dry and clean bottles as per procedure. One bottle was sent to the office of the Public Analyst and two other bottles were sent to local authority. The Public Analyst found that the said milk was adulterated and was not conforming the standard prescribed for buffalo milk. The said milk was containing fat 6.1 per cent and solids non fat 7.872 per cent.

3. At the time of trial, the prosecution had examined Food Inspector Shri Chandrakant Karandikar on 24-7-1979 before the stage of framing of charge against the accused (present petitioner). The prosecution had also examined Vijay Singh Onkar as well as Baboolal Naryan as prosecution witnesses before framing of the charge stage. The present petitioner did not cross-examine any of the witnesses. After the petitioner (accused) was examined under Section 313, Criminal Procedure Code, 1973 (hereinafter referred to as 'Code') on 6-11-1984, Shri Karandikar was not available for cross-examination because he had died.

4. The learned C.J.M. pronounced the judgment on 29-11-1984 in which he convicted and sentenced the petitioner as mentioned above. In the said judgment the learned C.J.M. held that no prejudice was caused to the petitioner (accused) because of non-availability of Shri Karandikar, Food Inspector, for cross-examination because when he had opportunity to cross-examine him, he did not cross-examine him. The learned C.J.M. held that in view of Section 33 of the Evidence Act, if the witness is dead or otherwise not available, the result of not recalling the witness for cross-examination is not that his previous evidence can be expunged because the evidence which he gave before the charge continues to be relevant under Section 33 of the Evidence Act. In view of that, he accepted the evidence of Shri Karandikar, Food Inspector, against the petitioner and passed the order of conviction and sentence against the petitioner solely relying on it. It is to be mentioned here that the Panch-witnesses had not supported the evidence of Food Inspector Shri Karandikar.

5. The act of the learned C.J.M. accepting the evidence of Karandikar, Food Inspector, and holding that by his evidence prosecution had proved the guilt against the accused (present revision-petitioner) and thereby convicting and sentencing the applicant for the offences mentioned above is the subject matter of challenge in this revision-petition.

6. Before the learned A.S.J. Dhar, it was contended on behalf of the present petitioner that no advocate named Joshi was appearing for the present petitioner in the said criminal case which was before the learned C.J.M., Dhar. Therefore, the mention of Shri Joshi Advocate in the order-sheet, below, the evidence of Food Inspector Chandrakant Karandikar, was totally incorrect. It was contended on behalf of the petitioner that Shri Joshi Advocate had not filed Vakalatnama for the present petitioner in the said proceedings. The learned A.S.J. while dealing with this contention held that there was no substance in that contention because it was not necessary for an Advocate to file Vakalatnama on behalf of the accused for appearing and conducting the case for the accused. According to the learned A.S.J. the accused can engage any advocate for defending him and if the advocate declares that he would defend such an accused, it is sufficient. The learned A.S.J. also held that when the accused had been given the opportunity of cross-examining the witness but he did not cross-examine the witness such evidence can be used against him for basing conviction against him. He held that in the present matter the accused (present petitioner) was given opportunity of cross-examining Shri Karandikar, Food Inspector, but he did not utilise that opportunity and thereafter Shri Karandikar died in an accident and, therefore, he could not be called for cross-examination. According to the learned Additional Sessions Judge, in these circumstances, the evidence of Shri Karandikar could be acted upon for basing conviction against the accused (the present petitioner). He, thus dismissed the grievance and contentions of the present petitioner in the appeal before him. He dismissed the said appeal.

7. In the present matter Shri R. S. Garg had raised two main points. First that Shri Joshi was not appearing on behalf of the accused as his Advocate, and, therefore, declaration given by him that he did not want to cross-examine Shri Karandikar could not go against the petitioner and consequently the evidence of Shri Karandikar in absence of cross-examination on behalf of the present petitioner could not be used against him for basing conviction. For fortifying his argument on second point, the learned counsel Shri R. S. Garg for the petitioner made reference to provisions of Section 33 of the Indian Evidence Act as well as relevant provisions of the Code in respect of trial of warrant cases. He argued that in the present matter, a warrant case, the present petitioner did not have a right of cross-examination as a matter oil right before framing of the charge and, therefore, the evidence of Shri Karandikar, Food Inspector, could not be used against him for recording conviction and sentence against him by saying that when opportunity was given to him he did not cross-examine Shri Karandikar.

8. Shri G. Desai, Deputy Government Advocate, appearing for the State, justified the said order as proper, correct and legal by submitting that evidence of such witness can be used in view of the provisions of Section 33 of the Evidence Act.

9. A reference was made during the course of the argument to some judgment for justifying the arguments.

10. In the matter of Kulbhushan Sharma, Petitioner v. State, Respondent a judgment reported in 1976 Cri.L.J. 1433, it has been held by Jammu and Kashmir High Court that Section 33 of the Evidence Act provides that when a witness is dead or cannot be found, or is incapable of giving evidence or is kept out of the way by the adverse party, or if his presence cannot be obtained without any amount of delay or expense which, under the circumstances of the case, the court considers unreasonable, it may direct that the evidence given by such a person in Judicial proceedings be taken as relevant for the purpose of proving in a subsequent judicial proceeding or in a latter stage of the same judicial proceedings, the truth of the fact which it asserts. Section 33 of the Evidence Act provides that evidence given by a witness in a judicial proceeding is relevant for the purpose of proving particular fact in later stage of the same judicial proceeding, when the witness cannot be found or dead.

11. In the matter of Dwarkadas and Ors. v. State and others, a judgment reported in 1979 Cri.L.J. 550, Jammu and Kashmir High Court observed that Section 138 of the Evidence Act not only lays down the manner of examining a particular witness but also impliedly confers on the party right of examination-in-chief, cross-examination and re-examination. The section creates three distinct rights so far as the examination of a witness is concerned. The right of cross-examination available to opposite party is a distinct and independent right, if such party desires to subject the witness to cross-examination. It cannot be denied the opportunity to do so as Section 138 of the Evidence Act distinctly confers this right of cross-examination on the opposite party. The right of cross-examination is so fundamental and basic that it could not be taken away by a specific provision in that regard under an enactment. The right of cross-examination not only is referable to Evidence Act itself but one of the principles of natural justice is that such evidence may not be read against a party if the same has not been subjected to cross-examination or at least an opportunity has not been given for cross-examination.

12. In the matter of Turner Morrison and Co. v. K. N. Tapuria and others, a judgment reported in 1933 Cri.L.J. 3384, Bombay High Court held that when accused had an opportunity of cross-examining a witness but declined to do so and thereafter the said witness was not available for cross-examination, the evidence of such witness recorded is admissible in evidence but that will have to be true to that account. It is to be noted that in the said case the said witness was cross-examined by one co-accused in detail and the second accused declined to cross-examine him when opportunity was given to him for cross-examination.

13. The present case was on a private compliant made by the Food Inspector and was tried by warrant procedure. The provisions for it are embodied in the Chapter XIX of the Code. Section 244 of the Code provides that when, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. Section 245 of the Code provides that if, upon taking all the evidence referred to in Section 244, the Magistrate considers for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. Sub-section (2) of it provides that nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

14. Section 246 of the Code provides that if, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. Sub-sections (2) and (3) deal with the action to be taken by the Magistrate towards reading and explaining the charge to the accused and recording his plea in that context. Sub-section (4) of Section 246 provides that if the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and if so, which of the witnesses for the prosecution whose evidence has been taken. Sub-section (5) of the said section provides that if he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. Sub-section (6) provides that the evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they shall also be discharged:

15. Thus, it would be quite clear from the language used in above mentioned sections that in a private complaint the accused does not have a right to cross-examine the witness examined by the prosecution before charge stage. In the interest of justice and as a matter of convenience he has been given a right to cross-examine those witnesses. It is not the right which the accused persons having in committal proceeding to cross-examine the witnesses examined on behalf of the prosecution, when cases used to be committed to Court of Session under Code of Criminal Procedure, 1898. Therefore, it would be totally against the spirit of law to blame the accused (revision-petitioner) in the way in which two courts below have blamed him for not cross-examining the Food Inspector Shri Karandikar before the stage of framing of charge in the present matter.

16. In a case filed against the accused for offence punishable under the provisions of Food Adulteration Act, the evidence given by the Food Inspector is of immense importance. Food Adulteration cases revolve mainly around technical points. In such cases the Food Inspector who collects the sample and sends it to the office of the Public Analyst is required to follow certain procedure for the purpose of collecting the sample, sealing it and sending it to the office of Public Analyst. Thereafter also he is obliged to follow certain procedure in sending two samples to the local authority. Thereafter, he has to give a notice to the accused after receipt of the report of the Public Analyst and after filing of complaint against the accused within the prescribed time enabling such an accused to get his sample analysed from Central Laboratory. In the cases which are revolving around the sample of milk, cross-examination of such Food Inspector is important in view of other important points also like addition of formalin, stirring of the sample milk or not stirring of the sample milk, stirring of milk sample in the bottle in bottles etc. His cross-examination is also important in respect of things which are relevant in view of the Rules 17 and 18 under the Adulteration Act. When the Panch-witnesses do not support the case of the Food Inspector mentioned in the complaint, the cross-examination of Food Inspector assumes more importance.

17. When the Food Inspector is not cross-examined on necessary details in view of the technicalities involved in a case under relevant provisions of the Adulteration Act, and when the Panch-witnesses have* not supported his case, if in such cases such evidence is acted upon for basing the conviction against the said accused, in my opinion, it would cause great miscarriage of justice. It is to be noted at this juncture that weapon of cross-examination is a powerful weapon by which the defence can separate truth from falsehood piercing through the evidence given by the witness, who has been examined in examination-in-chief. By the process of cross-examination the defence can test the evidence of a witness on anvil of truth. If an opportunity is not given to the accused to separate the truth from the evidence given by the witness in examination-in-chief, it would be as good as cutting his hands, legs and mouth and making him to stand meekly before the barrage of statements made by the witnesses in examination-in-chief against him for sending him to jail. Law does not allow such thing to happen.

18. The record shows that on 29-1-1984 Sarvashri Mandloi, Mandlik, Ravi Dubey, Sushil Dube and K. D. Kamal, Advocate filed Vakalatnama 'memo of appearance' for the accused (the present revision-petitioner). The record also shows that on 8-7-1979 Advocates Shri Nisar Ahmad and Manoharlal Joshi filed Vakalatnama (memo of appearance) on behalf of the revision-petitioner. On 24-7-1979 the evidence of Food Inspector Karandikar was recorded. Therefore, it will have to be held that Shri Joshi, Advocate appeared for the revision-petitioner. However, the learned A.S.J. has committed an error in holding that for defending the accused it is not necessary to file Vakalatnama (memo of appearance) by an advocate. His opinion that any advocate can by mere declaration before the Court defend the accused is not correct. Such can be done by a senior counsel duly recognized by the High Court or a barrister, who has been instructed by an advocate on record. The learned A. S.J., however, opined that in the present matter Shri Joshi was appearing for revision-petitioner and he had filed his Vakalatnama (memo of appearance). It is true if the record is perused.

19. Whether Shri Joshi was advocate for the revision-petitioner or not, would not be a decisive factor in this matter, because what is important is whether the revision-petitioner was having a right to cross-examine Karandikar, Food Inspector before the stage of framing of charge. Whether the accused can be convicted on such evidence of Shri Karandikar, Food Inspector, who has not been cross-examined on behalf of the revision- petitioner (accused) or not is the decisive question in this matter. As I have discussed above, in Food Adulteration cases convicting the accused on the evidence of the Food Inspector, who has not been cross-examined by the accused would cause a serious miscarriage of justice, in view of the. peculiar characteristic of the case under the provisions of the Food Adulteration Act. Thus, in the present matter, the learned C.J.M. has committed an error in doing so and that has been confirmed by the learned A.S.J., who dismissed the appeal of the revision-petitioner. Both the courts below thus committed an error of law which has caused a serious miscarriage of the justice and, therefore, this Court will have to allow this revision-petition and set aside the order of conviction and sentence passed against the revision-petitioner by the C.J.M., Dhar in Criminal Case No. 1041/78 which has been confirmed by the Second A.S.J., Dhar, in Criminal Appeal No. 108/84, it is hereby set aside by allowing this revision petition. The revision-petitioner is hereby acquitted. Fine, if any, deposited by him be refunded to him. The bail-bond furnished by the revision-petitioner stands discharged.