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State Through Medical Officer of Health Vs. Ishwar Saran - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtAllahabad High Court
Decided On
Case NumberCriminal Appeal No. 1737 of 1962
Judge
Reported inAIR1964All497; 1964CriLJ502a
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 4(1) and 417(3); ;Prevention of Food Adulteration Act - Sections 7, 16 and 20
AppellantState Through Medical Officer of Health
Respondentishwar Saran
Appellant AdvocateD. Sanyal, Adv.
Respondent AdvocateS.P. Gupta, Adv.
DispositionAppeal dismissed
Excerpt:
.....well as the appeal itself has been filed not by sri..........of moradabad in a case under section 7/16 of the prevention of food adulteration act.2. sri s. n. gupta, food inspector municipal board moradabad, filed a complaint against' the opposite party on the allegations that on 17-2-1961 at about 9 a. m. he found the opposite party selling and exposing for sale 'hing' at his shop; that sample of the same was obtained by the complainant which was sent to the public analyst for his analysis; that the report of the public analyst shows that it was admixed with a large quantity of foreign matter, and that the opposite party bad thus contravened the provisions of prevention of food adulteration act and was liable to punishment. the complainant, therefore, prayer that the accused may be tried and punished in accordance with law.3. a perusal of the.....
Judgment:

H.C.P. Tripathi, J.

1. This is an appeal against an order of acquittal recorded by a Magistrate 1stClass of Moradabad in a case under Section 7/16 of the Prevention of Food Adulteration Act.

2. Sri S. N. Gupta, Food Inspector Municipal Board Moradabad, filed a complaint against' the opposite party on the allegations that on 17-2-1961 at about 9 A. M. he found the opposite party selling and exposing for sale 'Hing' at his shop; that sample of the same was obtained by the complainant which was sent to the Public Analyst for his analysis; that the report of the Public Analyst shows that it was admixed with a large quantity of foreign matter, and that the opposite party bad thus contravened the provisions of Prevention of Food Adulteration Act and was liable to punishment. The complainant, therefore, prayer that the accused may be tried and punished in accordance with law.

3. A perusal of the complaint shows that at the foot of the complaint Dr. V. N. Srivastava had given his consent to Sri S. N, Gupta, Food Inspector, within the meaning of Section 20 of the Act read with U. P. Government Notification No. 19395/XVI (PH.) - 461-52 dated 16-12-1935 for instituting the prosecution.

4. The learned Magistrate after taking evidence held that the offence alleged was not proved and acquitted the accused. This appeal is directed against that order.

5. Learned counsel for the opposite party has raised a preliminary objection regarding the maintainability of the appeal. He contends that the complaint in this case was instituted by Sri S. N. Gupta, Food Inspector, while the application for special leave to appeal was made to this Court by the Medical Officer of Health, Moradabad, and the appeal too has been filed by him, but as he was not the complainant he had no right under the law either to obtain leave or to file an appeal against the order of acquittal.

6. Section 4 (1) (h) of the Code of Criminal Procedure defines 'complaint' as follows:-

' 'Complaint' means the allegation made orally or in writing to a magistrate, with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer.'

Thus it is clear that in order to satisfy the requirements of law there must be four things in a complaint. Firstly, there must be allegations made, orally or in writing; secondly, the allegations must be made to a magistrate; thirdly, they must be made to a magistrate with a view to his taking action under the Code of Criminal Procedure; and lastly, it must not be a police report.

7. The word 'complainant' occurs in various sections of the Code but it has not been defined anywhere. However, it has to be interpreted in the light of the definition which the Legislature has given to the word 'complaint' in Section 4 (1) (h) of the Code. In my opinion, therefore, it is obvious that 'complainant' is he, who moves the machinery of a magisterial Court by making certain allegations before it, for taking action against a person who has infringed the law.

8. Section 20 of the Prevention of Food Adulteration Act provides that no prosecution for an offence under the Act shall be instituted except byor with the written consent of the State Government or a person authorised in this behalf by the State Government. Accordingly, the complainant, Sri S. N. Gupta, obtained the prior consent of the Medical Officer of Health who was the person authorised in that behalf by the State Government for launching prosecution of the opposite party. The endorsement on the complaint by Dr. V N. Srivastava, Medical Officer of Health, clearly shows that he had thereby only given his consent to Sri S. N. Gupta for instituting the prosecution. In my opinion, that will not make Dr. Srivastava a complainant in the case.

9. Before the enactment of Act 26 of 1955, a complainant had no right to file an appeal against an order of acquittal. Even now the complainant may present such an appeal to the High Court only after obtaining special leave to appeal.

10. Section 417 (3) runs as follows:-

'If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.'

Therefore, it is the complainant alone who is competent to fife the application for obtaining leave to appeal and then to institute the appeal, if the leave has been granted The person who was not the complainant before the trial Court has no right to go up in appeal against the order of acquittal. In the present case leave to appear, as well as the appeal itself has been filed not by Sri S. N. Gupta, who was the complainant before the trial Court, but by the Medical Officer of Health, Moradabad, who in my opinion, had no right to do so.

11. In the case of Raja Ram v. Ram Achal, AIR 1962 All 6 a Division Bench of this Court was pleased to observe that there must be a direct connection between the allegation and the prosecution in order to make an allegation 'complaint'. I find myself in respectful agreement with that observation. The order of consent given by the Medical Officer of Health in the present case to the initiation of prosecution by Sri S. N. Gupta, Food Inspector, cannot be held to have a direct connection with the prosecution us such before the trial Court. It only enabled Sri S. N Gupta to initiate the prosecution of the opposite party, by removing the bar which was placed on the same under Section 20 of the Prevention of Food. Adulteration Act.

12. Learned counsel for the opposite party placed reliance on a Division Bench decision of this Court in the case of Municipal Board Kanpur v Indra Moban, 1961 All WR (HC) 139. In that case it was held that under Section 417 (3) Criminal Procedure Code it is only the 'complainant who is entitled to appeal. There the Municipal Board Kunpur was the complainant but as at the time of filing the appeal it had ceased to exist having been transformed into a Corporation, it was held that the Corporation could not file the appeal.

13. There is another aspect of the question which requires consideration. The Legislature has given limited right to a complainant to challenge an order of acquittal. Therefore, the word 'complainant' as occurring in Section 417 (3) of the Code of Criminal Procedure has to he construed in a strict manner. Its scope cannot be enlarged to include even those who might be interested in the outcome of the complaint, but had not taken upon themselves the task of moving the machinery of the magisterial Court for punishing the offender.

14. Learned counsel for the appellant has urged that as leave to appeal under Section 417 (3) has already been granted to the appellant by this Court, the competence of the appeal cannot be challenged at this stage. I am unable to agree with this contention. The objection regarding the maintainability of an appeal on legal grounds can be raised at any stage and I do not think that the permission which has been granted for filing the appeal, can be pleaded as a bar at the time of its hearing to the raising of such an objection.

15. The preliminary objection raised by the opposite party regarding the competence of the appeal prevails. The appeal is dismissed.


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