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Deepak Sarkar and anr. Vs. State of Bihar and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Case NumberCriminal Appeal No. 363 of 1975
Judge
Reported inAIR1977SC1665; (1977)1SCC494; 1978(10)LC59(SC)
ActsCode of Criminal Procedure (CrPC) 1989 - Sections 561-A
AppellantDeepak Sarkar and anr.
RespondentState of Bihar and anr.
Excerpt:
.....was being raised for first time should have been taken in argument at hearing of application - appeal allowed and case remanded to high court. - [ a.k. sarkar,; j.r. mudholkar and; r.s. bachawat, jj.] the assessee-firm, consisting of 14 partners, applied for registration under s. 26a of the income-tax act, 1922. one g, who was a partner of the assessee-firm, was also partner of another firm, the ferozepore firm. the ferozepore firm consisted of 8 partners who had agreed that if any work was carried on by any one of them with others the profits and losses arising out of that work would be divided amongst all the partners in proportion to their shares in that firm. in the course of the proceedings for the registration of the assessee-firm all its partners had stated before the..........of the complaint lodged by him could be taken under the act. this contention was, however, not allowed to be raised by the high court since it had not been taken in the petition and was sought to be urged for the first time at the hearing of the application. now it is true that this contention was not raised in the application, but that is no reason why it should not have been allowed to be taken in argument at the hearing of the application. we accordingly allow the appeal, set aside the order made by the high court and remand the case to the high court so that the high court may hear the parties on this further contention and dispose of the application before it. we may make it clear that the two contentions which were urged before the high court and negatived by it in the judgment.....
Judgment:

P.N. Bhagwati, J.

1. This appeal by special leave arises out of an application made by the appellants under Section 561-A of the CrPC, 1898 for quashing a criminal prosecution pending against them in the Court of Munsif Magistrate, First Class, Dhanbad under the Prevention of Food Adulteration Act, 1954. Two contentions were raised on behalf of the appellants challenging the validity of the criminal prosecution, but both of them were negatived by the High Court The appellants also sought to raise at the hearing of the application before the High Court a further contention, namely, that Jharia Mines Board of Health was not a local authority within the meaning of Section 2(viii) of the Act and hence the Food Inspector attached to the Jharia. Mines Board of Health was not entitled to launch a prosecution against the appellants and no cognizance of the complaint lodged by him could be taken under the Act. This contention was, however, not allowed to be raised by the High Court since it had not been taken in the petition and was sought to be urged for the first time at the hearing of the application. Now it is true that this contention was not raised in the application, but that is no reason why it should not have been allowed to be taken in argument at the hearing of the application. We accordingly allow the appeal, set aside the order made by the High Court and remand the case to the High Court so that the High Court may hear the parties on this further contention and dispose of the application before it. We may make it clear that the two contentions which were urged before the High Court and negatived by it in the judgment under appeal will not be allowed to be raised again before the High Court. We hope and trust that the High Court will dispose of the application at an early date in the light of the observations contained in this judgment.


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