Madhya Pradesh High Court
M/S Super Pharma Products vs The State Of Madhya Pradesh on 16 January, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:1132
1 CRR-1209-2017
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 16th OF JANUARY, 2025
CRIMINAL REVISION No. 1209 of 2017
M/S SUPER PHARMA PRODUCTS AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vijay Kumar Asudani and Shri Prashant Kashyap, counsel for
applicant.
Shri Tarun Pagare, Govt. Advocate for respondent/State.
WITH
CRIMINAL REVISION No. 3010 of 2017
M/S SUPER PHARMA PRODUCTS AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vijay Kumar Asudani and Shri Prashant Kashyap, counsel
for applicant.
Shri Tarun Pagare, Govt. Advocate for respondent/State.
ORDER
These Criminal Revisions have been preferred against the common
order dated 5.09.2017 passed by JMFC, Jhabua in criminal case No.
287/2005 and 286/2005 respectively, therefore both these Revisions are
being disposed off by this common order. By the impugned order, learned
Signature Not Verified
Signed by: MUKTA
KOUSHAL
Signing time: 20-01-2025
10:22:08
NEUTRAL CITATION NO. 2025:MPHC-IND:1132
2 CRR-1209-2017
trial court has allowed the application of the respondent/State filed under
section 33 of the Indian Evidence Act for admitting the statement of the
deceased Drug Inspector, R. C. Varandani in the evidence, as he passed
away before his cross-examination could be completed in evidence, after
charge.
2. The application filed on behalf of the prosecution was opposed by the
applicants on the ground that at the time when the statement of
R.C.Varandani, the then Drug Inspector was recorded before the trial court
before charge, the applicant had no right to cross-examine the then Drug
Inspector on merits of the case, therefore ingredients of section 33 of the
Evidence Act are not fulfilled, hence the statement of deceased Drug
Inspector can not be admitted in evidence at the time of judgment. Learned
trial court after giving opportunity of hearing to both the parties and
ruminating the judgments as cited by both the parties allowed the application
filed on behalf of the prosecution which gave rise to these Criminal
Revisions.
3. Counsel for the applicant submits that at the time of recording of
statement of the deceased Drug Inspector before charge, though the applicant
was given opportunity to cross-examine the witness and that opportunity was
availed by the applicant but it was only to the extent of charge. It was not full
fledged cross-examination in respect of 47 documents marked as Exhibits
during trial, therefore, learned trial court has erred in passing the impugned
orders.
4. Per contra, learned Govt. Advocate for respondent/State submits that
these revisions are not maintainable before the High Court as applicant has
Signature Not Verified
Signed by: MUKTA
KOUSHAL
Signing time: 20-01-2025
10:22:08
NEUTRAL CITATION NO. 2025:MPHC-IND:1132
3 CRR-1209-2017
not availed the remedy available before the Sessions Court and on merit,
learned Govt. Advocate submits that impugned orders passed by the trial
court are as per provisions of law and no factual or legal error has been
committed by the trial court, hence these Revisions which are sans merit
need dismissal.
5. Answering to this, learned counsel for applicant placing reliance on
the judgment of Division Bench of this Court in the matter of State of
Madhya Pradesh Vs. Khizar Mohammad, 1996 MPLJ 1007 submits that
Revisions before this Court are maintainable. Relevant para N.11 is
reproduced below :
“In our opinion these observations in
Shridhar Shastri’s case (supra) are somewhat
misleading. We are fortified in our opinion
by the decision of the Supreme Court in
Dharmpal Vs. Ramshri, AIR 1993 SC 1360
where the Apex Court has held that a second
revision application by the same person after
disposal of the first cannot be entertained by
High Court in exercise of section 482
Cr.P.C.. It is well settled that the inherent
powers under section 482 Cr.P.C. cannot be
utilised for exercising powers which are
expressly barred by the Code. In view of
decision of the Supreme Court the
observation quoted above in Shridhar
Shastri’s case cannot be supported. The
provisions under the new Code also indicate
that the option is given to the person to
approach either to the High Court or the
Court of Sessions and same is also clear from
the provisions of section 397(3) of Cr.P.C.
which categorically states that where an
application under this section has been made
by any person either to the High Court or to
the Sessions Judge, no further application bySignature Not Verified
Signed by: MUKTA
KOUSHAL
Signing time: 20-01-2025
10:22:08
NEUTRAL CITATION NO. 2025:MPHC-IND:11324 CRR-1209-2017
the same person shall be entertained by the
other of them. It is also made clear that by the
provision of section 397 Cr.p.C. that if an
application has been made by any party to the
Sessions Judge the same party cannot
approach the High Court. Reading of this,
thus, shows that if a party approaches the
Sessions Court and the order is passed then
the other party or opposite party has a right to
approach the High Court.”
6. Heard learned counsel for the parties and perused the record.
7. So far as the contention with regard to maintainability of the Revisions
are concerned, in view of the judgment of Khizar Mohammad (supra) as
cited by counsel for applicant, the Revisions are maintainable. In view of
aforesaid, contention raised in this regard by respondent / State has no force
and therefore, rejected.
8. So far as merit of the cases are concerned, learned trial court failed to
appreciate the provisions as enshrined in section 33 of the Indian Evidence
Act which is reproduced below:
“33. Relevancy of certain evidence for proving, in
subsequent proceeding, the truth of facts therein stated.
Evidence given by a witness in a judicial proceeding, or
before any person authorised by law to take it, is
relevant for the purpose of proving, in a subsequent
judicial proceeding, or in a later stage of the same
judicial proceeding, the truth of the facts which it states,
when the 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 an amount of delay or expense which
under the circumstances of the case, the Court considers
unreasonable :
Provided that the proceeding was between the same
parties or their representatives in interest;that the
adverse party in the first proceeding had the right and
opportunity to cross-examine;that the questions in issueSignature Not Verified
Signed by: MUKTA
KOUSHAL
Signing time: 20-01-2025
10:22:08
NEUTRAL CITATION NO. 2025:MPHC-IND:11325 CRR-1209-2017
were substantially the same in the first as in the second
proceeding.”
9. Following essentials are provided in the proviso attached to Section
33 of the Indian Evidence Act are as under:-
“1. It was between the same parties;
2. If the adverse party in the first proceeding had the
right and opportunity to cross examine the witness; and
3. The question in issue were substantially the same in
the first as in the second proceeding.”
10. From perusal of the aforesaid provision, it is clear that though the
parties are same between whom the statement of deceased Drug Inspector
was recorded before charge but the second ingredient which is required for
fullfilment of section 33 of the Evidence Act that if the adverse party in the
first proceeding had the right and opportunity to cross examine the witness,
has not been fulfilled. At the time of framing of charge, the cross-
examination as done by the counsel for applicant was limited to the
proceedings of charge only and after that several documents were tendered
and admitted in evidence and before giving opportunity of cross-examination
to the applicant, the Drug Inspector passed away, therefore, he could not
come before the trial court. It would be profitable to refer to the judgment of
this Court in the matter of Nandram Khemraj Vs. State of Madhya Pradesh,
1995 MPLJ 83 relied upon by the applicant. Relevant paragraph Nos.15,16
and 17 are reproduced below :
“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 theSignature Not Verified
Signed by: MUKTA
KOUSHAL
Signing time: 20-01-2025
10:22:08
NEUTRAL CITATION NO. 2025:MPHC-IND:11326 CRR-1209-2017
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 theSignature Not Verified
Signed by: MUKTA
KOUSHAL
Signing time: 20-01-2025
10:22:08
NEUTRAL CITATION NO. 2025:MPHC-IND:11327 CRR-1209-2017
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.”
11. From perusal of the aforesaid observations as reflected above, this
court is in full agreement with the exposition of law by the co-ordinate
Bench. In case of Sukhdev Vs. State of Madhya Prdesh, 2003(4) MPLJ 157
it has been held that on death of witness before cross-examination, his
evidence does not become inadmissible but as discussed by this Court
hereinabove when right to cross-examine the witness with regard to merits of
the case on evidence after charge could not be availed due to death of
prosecution witness Drug Inspector, then ingredients of Section 33 of the
Indian Evidence Act cannot be said to have been fulfilled, therefore
testimony of the deceased Drug Inspector cannot be relied upon as evidence
as per provisions of section 33 of the Evidence Act.
12. In the light of aforesaid discussion, both the Revisions are
allowed. The impugned orders passed by the court below are hereby set aside
with specific mention that in the original cases statement of the deceased
Drug Inspector cannot be read as evidence under section 33 of the Indian
Signature Not Verified
Signed by: MUKTA
KOUSHAL
Signing time: 20-01-2025
10:22:08
NEUTRAL CITATION NO. 2025:MPHC-IND:1132
8 CRR-1209-2017
Evidence Act in the attending circumstances of the case.
Copy of this order be placed in Cr.Revision No. 3010 of 2017.
(BINOD KUMAR DWIVEDI)
JUDGE
MK
Signature Not Verified
Signed by: MUKTA
KOUSHAL
Signing time: 20-01-2025
10:22:08
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