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State Through Nagar Mahapalika Vs. Prem Prakash Jauhar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1966CriLJ1110
AppellantState Through Nagar Mahapalika
RespondentPrem Prakash Jauhar
Excerpt:
- - the maxim applied was 'falsa demontraton non nocet cum be corpore constat' (misdescription has no effect when the thing or person meant is otherwise indicated clearly. each of the three appeals is, therefore, incompetent and must fail for this reason......of food act (hereinafter referred to as the act). the complaint in each case was filed by the food inspector of the nagar mahapalika, varanasi. the accused in each of the three cases is common. the facts which gave rise to the prosecution in each case seem to have come to the notice of the food inspector on the same visit of the food inspector on the morning of 7th may, 1962, at about 10 a.m. to the shop of the respondent who was found selling some aerated water, some ice-cream, and some bread without having taken out licences from the mahapalika for selling these articles of food. three prosecutions were instituted in respect of the three articles of food separately. the respondent pleaded that he had submitted applications for renewal of licences for selling the articles of food.....
Judgment:

M.H. Beg, J.

1. The appellant in the three appeals before me is stated to be: 'State through Nagar Mahapalika, Varanasi through its Up Nagar Adhikari'. Each of the three appeals is directed against a common order of acquittal by a Magistrate First Class, Varanasi in three cases under Section 7/16 of Prevention of Adulteration of Food Act (hereinafter referred to as the Act). The complaint in each case was filed by the Food Inspector of the Nagar Mahapalika, Varanasi. The accused in each of the three cases is common. The facts which gave rise to the prosecution in each case seem to have come to the notice of the Food Inspector on the same visit of the Food Inspector on the morning of 7th May, 1962, at about 10 A.M. to the shop of the respondent who was found selling some aerated water, some ice-cream, and some bread without having taken out licences from the Mahapalika for selling these articles of food. Three prosecutions were instituted in respect of the three articles of food separately. The respondent pleaded that he had submitted applications for renewal of licences for selling the articles of food he was selling, and that he had deposited the renewal fees also on 9.5.1962, but, as the applications made by the respondent were not on the prescribed printed forms, the respondent was directed by an order of 7.5.1962 to make fresh applications when printed forms for applications, which were out of stock, would became available. The respondent had the necessary licences for the previous year and had filed them before the Magistrate. His defence witness proved that he had made the necessary renewed application. But, as the applications were not on proper forms and had not been granted by 10-30 A.M. on 7.5.1962, the offences of selling the above-mentioned articles of food were according to the view taken by the learned Magistrate, not committed.

2. The learned Magistrate also found that the complaint had been instituted, in each case, by the Food Inspector on 16.7.1962 without the sanction of the proper authority although the Food Inspector had wrongly stated, in his evidence on 20.11.1962, that the complaints bore the signatures of the Health Officer to signify the required sanction to prosecute. The Food Inspector, however, produced before the learned Magistrate, on 29.12.1962, the actual sanctions dated 8.5.1962, purporting to bear the signatures of the Health Officer under the two words written by somebody else: 'prosecution sanctioned'. The Food Inspector proved on 31.12.1962 the signatures of the Health Officer made on 8.5.1962. The learned Magistrate held that as there was no sanction before the Magistrate when the complaints were filed, the cases had to be dismissed and the accused was acquitted in each case.

3. The learned Magistrate relied upon the provisions of Section 20, Sub-section (1) which runs as follows:

20(1) No prosecution for an offence under this Act shall be instituted except by, or with the written consent of, the State Government or a local authority or a person authorized in this behalf by the State Government or local authority.

The view taken by the learned Magistrate was that even if sanctions subsequently produced before the court, were in existence on 16.7.1962 when the complaints were filed by the Food Inspector, the sanctions not having been placed before the court itself could not retrospectively validate the proceedings taken on 16.7.1962. The learned Magistrate also held that the signature of the Health Officer, even though proved on 31.12.1962 to exist underneath the words 'prosecution sanctioned' written by somebody else, did not show that the officer concerned had applied his mind to the facts of the case before granting sanction. Another finding given by the learned Magistrate was that the sanctions were invalid as they did not authorise any specified person to file the complaints. This also indicated, according to the learned Magistrate, that the sanctioning officer had not applied his mind to the facts of the case before him.

4. The appeals have been pressed on the ground that Section 20 of the Act does not prescribe any particular form in which the sanction is to be accorded. It was pointed out that the Act only mentions the written consent of the prescribed authority or person authorised. It is also argued that the person authorised being the Medical Officer of Health of the Nagar Mahapalika, in view of Notification No. 10305/XVI-(P.H.)-461-52, issued under Section 20, Sub-section (1) of the Act, on 16th December, 1955, and published in Part I of the U.P. Gazette on 24.12.1955, it must be presumed that he had duly considered the contents of the documents he had signed. The document in each case it is pointed out, is the report of the Food Inspector mentioning the facts upon which sanction to prosecute was sought. It is, therefore, not proper to tear the words 'prosecution sanctioned' out of their context and to assume that the Medical Officer had neither seen the contents of the report at all nor read the words under which he was signing. The argument put forward by Mr. Yoshoda Nandan on this matter seems quite justified. It also appears that the learned Magistrate was in error in holding that the production of the sanction before the Magistrate after the institution of proceedings affected the jurisdiction to institute proceedings. Section 20 of the Act makes the necessary consent of the prescribed authority, or person authorised, a condition precedent to the institution of the proceedings. In other words, the required consent must precede the institution, but, Section 20 of the Act cannot be interpreted to mean that the consent must also be proved before the court prior to the institution of the proceedings. It is certainly proper that the required consent should be proved at the stage of the institution of proceedings so that the question of the existence or otherwise of a valid consent is adjudicated upon at the outset and the time of the court is not wasted. But, where the consent in writing is not proved at the outset, due to inadvertence or some error, a subsequent proof of the necessary consent having been given before the institution of proceedings is enough. It is also to be noted that Section 20 of the Act does not require the written consent to be in any particular form. All that this provision requires is that the consent should be written and should be of the prescribed authority or person authorised in that behalf. It implies that the consenting authority or person has applied its or his mind sufficiently to the facts of the case to make the consent real and not a pretence or an idle formality. The section, however, does not require the passing of a quasi judicial order giving reasons for according consent. The section also does not require that the consent should be given to a prosecution by a particular or specified prosecutor. It only requires that the consent should be to the prosecution for an offence under the Act. This means that the alleged offence and the offender should be known before consent is given, but the determination of the identity of the prosecutor is not required before the consent is given. Conditions cannot generally be read into provisions of law when they are not found there at all. Therefore, the written consent in the present case appears to be a valid one in each, case.

5. The next question which arises does make the identity of the prosecutor a very pertinent matter. Section 417, Sub-section (3), Cri.P.C. applies only to cases instituted upon complaints. A complaint can only be instituted by a particular person or persons or by somebody duly authorised to institute a complaint as the agent of the complainant. Unless an application has been made under Section 417(3), Cri.P.C. to the High Court by or on behalf of the actual complainant the question of granting special leave to appeal does not arise. The appeals before me have come up through applications for special leave to appeal under Section 417 (3), Cri.P.C.

6. The objection raised by Mr. A.D. Giri, on behalf of the respondent, arises out of the fact that the complainant in each case was the food inspector. The appellant in each of the three cases is said to be the 'State through Nagar Mahapalika, Varanasi through its Up Nagar Adhikari'. Now, the State has its own machinery for prosecution and acts through the State Government and appoints Public Prosecutors under Section 492, Cri.P.C. It has been held in M. Ramakistiah v. State of Andhra Pradesh : AIR1959AP659 that a violation of the provisions of Sections 492 and 493 read with Section 270, Cri.P.C. would invalidate a trial. The present case is not one in which the prosecution had necessarily to be placed in the hands of the Public Prosecutor, as is the position in a Sessions' Court trial to which Section 270, Cri.P.C. is applicable. A private complainant can prosecute a case before a Magistrate provided there is no legal bar to his doing so in that particular case. So far as the cases under the Act are concerned, it is clear that even a private person can as a purchaser who has obtained a copy of the report of the public Analyst as provided by Section 12 of the Act, prosecute without the need for the consent of anybody, if he has attached a copy of the Public Analyst's report with his complaint (see proviso to Section 20(1) of the Act). There is no bar to a Food Inspector acting as a prosecutor. In the cases before me consent was given to prosecutions proposed by the Food Inspector. The Food Inspector had filed the complaints and had prosecuted the cases in the trial court. He had not even put down, in the complaints, that they were on behalf of the State or on behalf of the Nagar Mahapalika. Section 20 of the Act does not require the consent of anybody to be taken before a prosecution by the State Government or a local authority itself. The finding of the learned Magistrate also shows that the Food Inspector was treated as the complainant. It has not been shown to me, in spite of time having been given specially for this purpose, that the Food Inspector had any authority to act or was acting on behalf of any other person or authority in the trial court.

7. Reliance was placed upon Nagar Mahapalika of Kanpur v. Sri Ram : AIR1964All270 for the contention that the complaints should be treated in each case as having been filed by the Nagar Mahapalika. In that case, it was quite clear who was the person authorised under Section 20 of the Act and it was held that a mere error in describing that person would not invalidate a prosecution. The maxim applied was 'falsa demontraton non nocet cum be corpore constat' (misdescription has no effect when the thing or person meant is otherwise indicated clearly. In the cases before me, substitution is sought, in the complaint of each case, of the Nagar Mahapalika in the place of the Food Inspector as the complaint. Upon a plain reading of the complaint in each case, it is evident that the Food Inspector is the complainant. There is no question of any misdescription. Even the heading of the complaint in each case does not show that the complaint is on behalf of either the State or the lacal authority. The learned Magistrate was quite right in treating the Food Inspector as the complainant. The maxim mentioned above is not intended to change the nature of proceeding by alterations in documents. It is meant only to cure defects arising out of unintentional misdescription. In the present case, it is quite clear that the Food Inspector was the complainant. He alone could have applied for special leave to appeal to this Court. Each of the three appeals is, therefore, incompetent and must fail for this reason.

8. Lastly it was argued that I should permit these appeals to be converted into revision applications by the Food Inspector. No body has applied on behalf of the Food Inspector. Even if he had applied, these appeals could not possibly be converted into revision applications in view of the absolute bar, under Section 439(5), Cri.P.C. against any such revision application by a person who could have appealed as the Food Inspector could have done. Keeping in view the nature of the alleged offences and the fact that the Food Inspector has not come up in appeal I cannot act at the instance of the Nagar Mahapalika which has not figured in the trial Court as the complainant at all.

9. These appeals are hereby dismissed.


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