Since the present case is a case instituted upon
a complaint, the court below was perfectly correct in
holding that since the case was being tried following the
procedure for summons case, the court below had no
jurisdiction to discharge the revision petitioner after his
appearance before the court in response to the summons
issued from the court.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.SUDHEENDRA KUMAR
10TH DAY OF MARCH 2016
Crl.Rev.Pet.No. 27 of 2012
ALIYAR,
Vs
THE FOOD INSPECTOR
Citation: 2016 CRLJ4255 Kerala
The revision petitioners are accused Nos.2 and 3 in
C.C. No.901 of 2008 on the files of the Court of the
Judicial Magistrate of First Class - I1, Perinthalmanna.
2. The revision petitioners were indicted for the
offence under Section 16(1)(a)(i) read with Sections 2(ia)
(m) and 7(i) of the Prevention of Food Adulteration Act,
1954 (for short "the Act") and Appendix B Item A.05.17.01
of Prevention of Food Adulteration Rules, 1955.
3. The prosecution allegation is that on 14.5.2008 at
12 noon, the Food Inspector, Malappuram Circle,
purchased six sealed packets of black pepper powder of 50
gram each from the shop of the first accused. The second
accused was the Production Supervisor of the
Manufacturer, namely, the third accused. After sampling
as per rules, one of the samples was sent for analysis to the
Public Analyst. The Public Analyst submitted report
stating that the sample did not conform to the standard
prescribed for the food item and therefore, the same was
adulterated.
4. The revision petitioners appeared before the court
below in response to the summons issued from the court
below and pleaded not guilty to the particulars of offence
read over and explained to them. Thereafter, PW1 and
PW2 were examined. At that stage, the revision petitioners
filed C.M.P. No.4335 of 2011 before the court under
Section 245 of the Code praying for discharge stating that
the notice under Section 13(2) of the Act was issued to the
revision petitioners only after the shelf life period of the
food item. The court below dismissed the said petition.
Aggrieved by the said order, this revision petition had been
filed.
5. Heard both sides.
6. The above case arose out of a private complaint
filed by the first respondent herein. It is clear from the
proceedings of the court below that the above case was
being tried summarily by the court below as provided
under Section 16A of the Act. The learned Magistrate also
mentioned in the order impugned that the case was being
tried following the procedure for summons case. Section
245 of the Code is applicable only in respect of the trial of
warrant-cases instituted, otherwise than on police report.
Since the present case is not a warrant-case instituted,
otherwise than on a police report, Section 245 of the Code
has no application to the case in hand as correctly held by
the court below.
7. The learned counsel for the revision petitioners has
argued that since the first respondent herein, who is the
complainant before the court below, was a Government
servant, the court below ought to have stopped the
proceedings and aquitted the revision petitioners under
Section 258 of the Code, rather than adhering to
technicalities. A bare reading of Section 258 of the Code
would make it clear that the said section is applicable only
when the case is a summons-case instituted otherwise than
upon complaint. Thus, it is clear from the provisions of
Section 258 of the Code that the said section is applicable
when the case is a summons-case based on a police report.
The Apex Court in John Thomas v. K. Jagadeesan (AIR
2001 SC 2651: 2001 KHC 648) held that Section 258 has
no application to cases instituted upon complaint. Since
the present case is a case instituted upon a complaint,
Section 258 of the Code has no application to the case on
hand and consequently, the argument in this regard
advanced by the learned counsel for the revision petitioners
cannot be accepted.
8. In this case, the revision petitioners had already
entered appearance before the court below and the trial
was commenced. The court below found that once the
accused appears before the court, there is no provision for
the magistrate to discharge the accused when the case is
tried following the procedure for summons case.
9. In Adalat Prasad v. Rooplal Jindal [(2004) 7
SCC 338], the Apex court held in paragraph No.15 as
follows:-
"It is true that if a Magistrate takes cognizance
of an offence, issues process without there being any
allegation against the accused or any material
implicating the accused or in contravention of
provisions of Sections 200 and 202, the order of the
Magistrate may be vitiated, but then the relief an
aggrieved accused can obtain at that stage is not by
invoking Section 203 of the Code because the
Criminal Procedure Code does not contemplate a
review of an order. Hence in the absence of any
review power or inherent power with the subordinate
criminal courts, the remedy lies in invoking Section
482 of the Code."
10. In Urmila Devi v. Yudhvir Singh [(2013) 15 SCC
624], the Apex Court held that the order issued by the
Magistrate deciding to summon an accused in exercise of
his power under Sections 200 to 204 Cr.P.C. would be an
order of intermediatory or quasi-final in nature and not
interlocutory in nature and hence the revisional jurisdiction
provided under Section 397 of the Code can be worked out
by the aggrieved accused. It was further held by the Apex
court in Urmiladevi (supra) that such an order of a
Magistrate deciding to summon an accused in exercise of
his power under Sections 200 to 204 Cr.P.C., can always be
subject-matter of challenge under the inherent jurisdiction
of the High Court under Section 482 Cr.P.C.
11. It is clear from the above ratio laid down by the
Apex Court that in a summons-case, the magistrate has no
jurisdiction to discharge the accused after his appearance
before the court in response to the summons issued by the
court in exercise of the power under Section 204 Cr.P.C..
The remedy available to the aggrieved accused in such a
situation is to challenge the order of the Magistrate
deciding to summon the accused in exercise of his power
under Section 204 Cr.P.C. by approaching the High Court
or the Sessions Court invoking revisional jurisdiction
under Section 397 of the Code or approaching the High
Court invoking the inherent jurisdiction under section 482
of the Code.
12. Now the question to be considered is as to
whether any remedy is available to the aggrieved accused
in such a situation in a summons-case instituted upon a
police report. Section 258 of the Code is relevant at this
juncture, which is extracted hereunder:-
"258. Power to stop proceedings in certain
cases:- In any summons-case instituted otherwise
than upon complaint, a Magistrate of the first class
or, with the previous sanction of the Chief Judicial
Magistrate, any other Judicial Magistrate, may, for
reasons to be recorded by him, stop the proceedings
at any stage without pronouncing any judgment and
where such stoppage of proceedings is made after
the evidence of the principal witnesses has been
recorded, pronounce a judgment of acquittal, and in
any other case, release the accused, and such release
shall have the effect of discharge".
It is clear from a bare reading of Section 258 of the Code
that in a summons-case instituted otherwise than upon a
complaint the magistrate can stop the proceedings at any
stage in appropriate cases. If the stoppage of proceedings
is made after the recording of the evidence of the principal
witnesses, the section permits the court to pronounce the
judgement of acquittal prematurely and in any other case,
the section permits the court to release the accused and
such release shall have the effect of discharge. The Apex
Court held in John Thomas(supra) thus:-
"Summons cases are generally of two
categories: those instituted upon complaints and
those instituted otherwise than upon complaints.
The latter category would include cases based on
police reports. Section 258 of the Code is
intended to cover those cases belonging to one
category alone i.e."summons cases instituted
otherwise than upon complaints". The segment
separated at the last part of the section by the
words "and in any other case" is only a sub-
category or division consisting of "summons cases
instituted otherwise than upon complaints". That
sub-category is not intended to cover all summons
cases other than those instituted on police report.
In fact, Section 258 vivisects only "summons
cases instituted otherwise than on complaints"
into two divisions. One division consists of cases
in which no evidence of material witness was
recorded. The section permits the court to acquit
the accused prematurely only in those summons
cases instituted otherwise than on complaints
wherein the evidence of material witnesses was
recorded. But the power of court to discharge an
accused at midway stage is restricted to those
cases instituted otherwise than on complaints
wherein no material witness was examined at all."
It is clear from the above decision that summons-cases
instituted otherwise than upon complaint would include
cases based on police reports. The above discussion would
make it clear that the remedy of an aggrieved accused in a
summons case instituted upon a police report is to
approach the court concerned under Section 258 of the
Code in appropriate cases.
13. Since the present case is a case instituted upon
a complaint, the court below was perfectly correct in
holding that since the case was being tried following the
procedure for summons case, the court below had no
jurisdiction to discharge the revision petitioner after his
appearance before the court in response to the summons
issued from the court.
14. Having gone through the relevant inputs, I do
not find any reason to hold that the order impugned suffers
from any infirmity, warranting interference by this Court.
I do not propose to express any opinion with regard to the
other findings by the court below in this order as the same
is not necessary for the disposal of this revision a petition.
In the result, this revision petition stands dismissed.
I make it clear that the dismissal of this revision
petition will not take away the right, if any, of the revision
petitioners in resorting to other remedies available to them
under law.
Sd/-
B.SUDHEENDRA KUMAR,
JUDGE
a complaint, the court below was perfectly correct in
holding that since the case was being tried following the
procedure for summons case, the court below had no
jurisdiction to discharge the revision petitioner after his
appearance before the court in response to the summons
issued from the court.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.SUDHEENDRA KUMAR
10TH DAY OF MARCH 2016
Crl.Rev.Pet.No. 27 of 2012
ALIYAR,
Vs
THE FOOD INSPECTOR
Citation: 2016 CRLJ4255 Kerala
The revision petitioners are accused Nos.2 and 3 in
C.C. No.901 of 2008 on the files of the Court of the
Judicial Magistrate of First Class - I1, Perinthalmanna.
2. The revision petitioners were indicted for the
offence under Section 16(1)(a)(i) read with Sections 2(ia)
(m) and 7(i) of the Prevention of Food Adulteration Act,
1954 (for short "the Act") and Appendix B Item A.05.17.01
of Prevention of Food Adulteration Rules, 1955.
3. The prosecution allegation is that on 14.5.2008 at
12 noon, the Food Inspector, Malappuram Circle,
purchased six sealed packets of black pepper powder of 50
gram each from the shop of the first accused. The second
accused was the Production Supervisor of the
Manufacturer, namely, the third accused. After sampling
as per rules, one of the samples was sent for analysis to the
Public Analyst. The Public Analyst submitted report
stating that the sample did not conform to the standard
prescribed for the food item and therefore, the same was
adulterated.
4. The revision petitioners appeared before the court
below in response to the summons issued from the court
below and pleaded not guilty to the particulars of offence
read over and explained to them. Thereafter, PW1 and
PW2 were examined. At that stage, the revision petitioners
filed C.M.P. No.4335 of 2011 before the court under
Section 245 of the Code praying for discharge stating that
the notice under Section 13(2) of the Act was issued to the
revision petitioners only after the shelf life period of the
food item. The court below dismissed the said petition.
Aggrieved by the said order, this revision petition had been
filed.
5. Heard both sides.
6. The above case arose out of a private complaint
filed by the first respondent herein. It is clear from the
proceedings of the court below that the above case was
being tried summarily by the court below as provided
under Section 16A of the Act. The learned Magistrate also
mentioned in the order impugned that the case was being
tried following the procedure for summons case. Section
245 of the Code is applicable only in respect of the trial of
warrant-cases instituted, otherwise than on police report.
Since the present case is not a warrant-case instituted,
otherwise than on a police report, Section 245 of the Code
has no application to the case in hand as correctly held by
the court below.
7. The learned counsel for the revision petitioners has
argued that since the first respondent herein, who is the
complainant before the court below, was a Government
servant, the court below ought to have stopped the
proceedings and aquitted the revision petitioners under
Section 258 of the Code, rather than adhering to
technicalities. A bare reading of Section 258 of the Code
would make it clear that the said section is applicable only
when the case is a summons-case instituted otherwise than
upon complaint. Thus, it is clear from the provisions of
Section 258 of the Code that the said section is applicable
when the case is a summons-case based on a police report.
The Apex Court in John Thomas v. K. Jagadeesan (AIR
2001 SC 2651: 2001 KHC 648) held that Section 258 has
no application to cases instituted upon complaint. Since
the present case is a case instituted upon a complaint,
Section 258 of the Code has no application to the case on
hand and consequently, the argument in this regard
advanced by the learned counsel for the revision petitioners
cannot be accepted.
8. In this case, the revision petitioners had already
entered appearance before the court below and the trial
was commenced. The court below found that once the
accused appears before the court, there is no provision for
the magistrate to discharge the accused when the case is
tried following the procedure for summons case.
9. In Adalat Prasad v. Rooplal Jindal [(2004) 7
SCC 338], the Apex court held in paragraph No.15 as
follows:-
"It is true that if a Magistrate takes cognizance
of an offence, issues process without there being any
allegation against the accused or any material
implicating the accused or in contravention of
provisions of Sections 200 and 202, the order of the
Magistrate may be vitiated, but then the relief an
aggrieved accused can obtain at that stage is not by
invoking Section 203 of the Code because the
Criminal Procedure Code does not contemplate a
review of an order. Hence in the absence of any
review power or inherent power with the subordinate
criminal courts, the remedy lies in invoking Section
482 of the Code."
10. In Urmila Devi v. Yudhvir Singh [(2013) 15 SCC
624], the Apex Court held that the order issued by the
Magistrate deciding to summon an accused in exercise of
his power under Sections 200 to 204 Cr.P.C. would be an
order of intermediatory or quasi-final in nature and not
interlocutory in nature and hence the revisional jurisdiction
provided under Section 397 of the Code can be worked out
by the aggrieved accused. It was further held by the Apex
court in Urmiladevi (supra) that such an order of a
Magistrate deciding to summon an accused in exercise of
his power under Sections 200 to 204 Cr.P.C., can always be
subject-matter of challenge under the inherent jurisdiction
of the High Court under Section 482 Cr.P.C.
11. It is clear from the above ratio laid down by the
Apex Court that in a summons-case, the magistrate has no
jurisdiction to discharge the accused after his appearance
before the court in response to the summons issued by the
court in exercise of the power under Section 204 Cr.P.C..
The remedy available to the aggrieved accused in such a
situation is to challenge the order of the Magistrate
deciding to summon the accused in exercise of his power
under Section 204 Cr.P.C. by approaching the High Court
or the Sessions Court invoking revisional jurisdiction
under Section 397 of the Code or approaching the High
Court invoking the inherent jurisdiction under section 482
of the Code.
12. Now the question to be considered is as to
whether any remedy is available to the aggrieved accused
in such a situation in a summons-case instituted upon a
police report. Section 258 of the Code is relevant at this
juncture, which is extracted hereunder:-
"258. Power to stop proceedings in certain
cases:- In any summons-case instituted otherwise
than upon complaint, a Magistrate of the first class
or, with the previous sanction of the Chief Judicial
Magistrate, any other Judicial Magistrate, may, for
reasons to be recorded by him, stop the proceedings
at any stage without pronouncing any judgment and
where such stoppage of proceedings is made after
the evidence of the principal witnesses has been
recorded, pronounce a judgment of acquittal, and in
any other case, release the accused, and such release
shall have the effect of discharge".
It is clear from a bare reading of Section 258 of the Code
that in a summons-case instituted otherwise than upon a
complaint the magistrate can stop the proceedings at any
stage in appropriate cases. If the stoppage of proceedings
is made after the recording of the evidence of the principal
witnesses, the section permits the court to pronounce the
judgement of acquittal prematurely and in any other case,
the section permits the court to release the accused and
such release shall have the effect of discharge. The Apex
Court held in John Thomas(supra) thus:-
"Summons cases are generally of two
categories: those instituted upon complaints and
those instituted otherwise than upon complaints.
The latter category would include cases based on
police reports. Section 258 of the Code is
intended to cover those cases belonging to one
category alone i.e."summons cases instituted
otherwise than upon complaints". The segment
separated at the last part of the section by the
words "and in any other case" is only a sub-
category or division consisting of "summons cases
instituted otherwise than upon complaints". That
sub-category is not intended to cover all summons
cases other than those instituted on police report.
In fact, Section 258 vivisects only "summons
cases instituted otherwise than on complaints"
into two divisions. One division consists of cases
in which no evidence of material witness was
recorded. The section permits the court to acquit
the accused prematurely only in those summons
cases instituted otherwise than on complaints
wherein the evidence of material witnesses was
recorded. But the power of court to discharge an
accused at midway stage is restricted to those
cases instituted otherwise than on complaints
wherein no material witness was examined at all."
It is clear from the above decision that summons-cases
instituted otherwise than upon complaint would include
cases based on police reports. The above discussion would
make it clear that the remedy of an aggrieved accused in a
summons case instituted upon a police report is to
approach the court concerned under Section 258 of the
Code in appropriate cases.
13. Since the present case is a case instituted upon
a complaint, the court below was perfectly correct in
holding that since the case was being tried following the
procedure for summons case, the court below had no
jurisdiction to discharge the revision petitioner after his
appearance before the court in response to the summons
issued from the court.
14. Having gone through the relevant inputs, I do
not find any reason to hold that the order impugned suffers
from any infirmity, warranting interference by this Court.
I do not propose to express any opinion with regard to the
other findings by the court below in this order as the same
is not necessary for the disposal of this revision a petition.
In the result, this revision petition stands dismissed.
I make it clear that the dismissal of this revision
petition will not take away the right, if any, of the revision
petitioners in resorting to other remedies available to them
under law.
Sd/-
B.SUDHEENDRA KUMAR,
JUDGE
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