42 yrs on, HC corrects mistake | india | Hindustan Times
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42 yrs on, HC corrects mistake

india Updated: Feb 13, 2009 01:29 IST
Kanchan Chaudhari
Kanchan Chaudhari
Hindustan Times
42 yrs on

The Bombay High Court has corrected its own mistake that allowed clear abuse of the process of law for more than four decades by giving a blanket stay to criminal prosecution through a civil suit.

The court was dealing with a civil reference forwarded in 2001 by the city civil court. The reference involved a civil suit, filed way back in 1966, challenging the constitutional validity of some provisions of the Prevention of Food Adulteration (PFA) Act.

Contrary to the set legal parameters, the absolutely non-maintainable suit was not just entertained, first by high court and then by the city civil court, but a blanket stay was ordered halting criminal prosecution of roughly 140 people for more than 42 years.

Some office bearers of the city-based Desi Makkhan Vyapari Sangh had filed the civil suit before the high court after its 140 members were booked for violating provisions of the FPA Act in 1966. Instead of filing a writ petition, they moved the civil suit and even succeeded in obtaining a stay on their members’ prosecution.

In 1970, the suit was transferred to the city civil court after the state government changed the criteria for entertaining civil suits by civil courts and the high court.

Despite having no jurisdiction to decide the fate of any legal provisions or rule made under any act, the civil court not only continued the blanket stay and tried the suit but even went on to give clear findings that three full sections of, and more than 20 rules made under, the PFA Act were ‘ultra vires’ (which means beyond the powers of) to the constitution.

It also forwarded the matter to the high court as civil reference only after it realised that it had no jurisdiction to declare any legal provisions as ultra vires.

A division bench of Justices Bilal Nazki and J.H. Bhatia dismissed the reference saying, “the suit itself was not maintainable and therefore the reference is misplaced”.

The net effect of the order in ordinary course would have revived the prosecution against the sangh members, but 42 years after registration of the offences, hardly anything can be done about it now.