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Harnamshi B. Digwa Vs. Thacker Valji Kunverji (Deceased) and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1983CriLJ604; (1982)2GLR372
AppellantHarnamshi B. Digwa
RespondentThacker Valji Kunverji (Deceased) and ors.
Cases ReferredNagraj v. State of Mysore
Excerpt:
- - he merely directs the proceedings to be dropped because he thinks that the sine qua non for the institution of the complaint is not satisfied and, therefore, the complaint is not maintainable meaning thereby that he has no jurisdiction to either convict or acquit the accused. the high court has said that when the sessions judge be satisfied that the facts proved bring the case within the mischief of section 132 of the code then he is at liberty to reject the complaint holding that it is barred by that section. excepting where the prosecution must fail for want of a fundamental defect, such as want of sanction, an order of acquittal must be passed upon a 'finding of not guilty' turning on the merits of the case and the appreciation of evidence at the conclusion of the trial......neither under section 14 nor section 14-a of the act. after the institution of the complaint, the learned magistrate recorded the evidence of the food inspector and then framed a charge against the respondents nos. 1. 2 and 3 to which they pleaded not guilty. the food inspector was recalled for further cross-examination and thereafter the panch witness was examined as a prosecution witness. the statements of the respondents nos. 1, 2 and 3 were recorded under section 313 of the criminal p. c. the said three respondents did not lead any evidence in their defence. after hearing the submissions at the bar, the learned magistrate by his judgment and order dated 5th jan. 1980 passed an order cancelling or dropping the proceedings in the following words:action on the offender, under section.....
Judgment:
ORDER

A.M. Ahmadi, J.

1. The Food Inspector, Bhuj Municipality, filed a criminal complaint No. 164 of 1979 in the Court of the learned Chief Judicial Magistrate, Bhuj, against the present respondents Nos. 1, 2 and 3 for the commission of an offence punishable under the Prevention of Food Adulteration Act, 1954 on the ground that grams (Chhanadal) were adulterated. In order to lodge a complaint the Food Inspector had sought sanction of the local authority as required by 20 (1) of the Act, That section reads as under:

20 (1) No prosecution for an offence under this Act, not being an offence under Section 14 or Section 14-A, shall be instituted except by, or with the written consent of, the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government.

The prosecution was neither under Section 14 nor Section 14-A of the Act. After the institution of the complaint, the learned Magistrate recorded the evidence of the Food Inspector and then framed a charge against the respondents Nos. 1. 2 and 3 to which they pleaded not guilty. The Food Inspector was recalled for further cross-examination and thereafter the panch witness was examined as a prosecution witness. The statements of the respondents Nos. 1, 2 and 3 were recorded under Section 313 of the Criminal P. C. The said three respondents did not lead any evidence in their defence. After hearing the submissions at the bar, the learned Magistrate by his judgment and order dated 5th Jan. 1980 passed an order cancelling or dropping the proceedings in the following words:

Action on the offender, under Section 20 of Prevention of Food Adulteration Act is cancelled and the offenders are acquitted.

It became necessary for the learned trial Magistrate to pass this order because he came to the conclusion that the prosecution was instituted without a valid sanction (written consent) of the authorised person. The order of sanction was produced on the record at Exhibit 19. The sanction was, however, granted in cyclo-styled form, the gaps having been filled in by an office clerk. The Health Officer Shri C. M. Patel was not examined as a witness on behalf of the Department. The question which arose for consideration before the learned Magistrate was whether the sanction or consent was legally valid. The learned. Magistrate came to the conclusion that the sanction or consent was given by the Health Officer without application of mind. He, therefore, came to the conclusion that there was no valid sanction or consent as required by Section 20 of the Prevention of Food Adulteration Act and accordingly he directed that the proceedings before him should terminate as the prosecution was not maintainable for want of a valid sanction. Feeling aggrieved by this order, the complainant preferred a Revision Application No. 16 of 1980 in the Court of the learned Sessions Judge, Kachchh at Bhuj. The learned Sessions Judge came to the conclusion that since the learned Magistrate had framed a charge against respondents Nos. 1, 2 and 3, he could, only acquit or convict the respondents and, therefore, the impugned order must be taken to be an order of acquittal within the meaning of Section 248(1) of the Code and, therefore, an appeal could be preferred and, the Revision Application would, therefore, be barred by virtue of Section 401(4) of the Code. In this view that the learned Sessions Judge took, he came to the conclusion that the Revision Application was not maintainable and dismissed the same. It is against this order of the learned Sessions Judge that the present petition is filed.

2. The Supreme Court in Ratilal Bhanji v. State of Maharashtra AIR 1979 SC 94 : 1979 Cri LJ 41 had an occasion to examine the scheme of the relevant provisions of the Code dealing with warrant cases. It pointed out that in a warrant case instituted otherwise than on a police report, an order of discharge can be made only after the process has been served and before the charge is framed It further pointed out that if after evidence is led the learned Magistrate is of the opinion that the allegation is baseless, he may discharge the accused. If, however, the evidence discloses a prima facie case, it is incumbent on the Magistrate to proceed under Section 254 and frame a charge against the accused. Once a charge is framed, the Magistrate has no power under Section 227 or any other provision of the Code to cancel the charge and reverse the proceedings to the stage of Section 253 and discharge the accused. In the instant case the Magistrate had already framed a charge after considering the evidence of the Food Inspector. He could not have quashed that charge and therefore, the impugned order could never be said to be an order of discharge. After the framing of charge if the accused enters a plea of not guilty, the learned Magistrate must proceed with the trial in the manner provided in Sections 254 and 258. Once a charge is framed, the Magistrate has no power to discharge the accused because after he has reached the post-charge stage, he can either acquit or convict the accused unless he decides to proceed under Section 325 or 360 of the Code. It is presumably for this reason that the learned Sessions Judge thought that since the post-charge stage was reached, the order of the learned Magistrate refusing to convict the accused must be treated as an order of acquittal. Ordinarily, that may be so but in a case where the proceedings are dropped, for want of jurisdiction or maintainability without a decision on merits one way or the other, the order cannot be treated as an order of acquittal. This is so because the learned Magistrate does not come to any conclusion of guilt or otherwise on the merits of the matter. He merely directs the proceedings to be dropped because he thinks that the sine qua non for the institution of the complaint is not satisfied and, therefore, the complaint is not maintainable meaning thereby that he has no jurisdiction to either convict or acquit the accused. Take a case where at the initial stage the Court frames a charge because in its opinion a prima facie case is made out. After the evidence is recorded, on the accused entering a plea of not guilty, the Magistrate comes to the conclusion that the offence, if any, was committed outside the State. In such a case he would have no jurisdiction either to acquit or convict the accused and, therefore, the only alternative left to him would be to direct that so far as the proceedings before him are concerned, they shall stand dropped. The Supreme Court had an occasion to consider more or less a similar situation in Nagraj v. State of Mysore : 1964CriLJ161 . That was a case in which the learned Magistrate committed the accused t0 the Sessions Court for trial for offences under Sections 307 and 326 of the Indian Penal Code. The learned Sessions Judge made a reference to the High Court on the ground that the learned Magistrate could, not have taken cognizance of the offences without the sanction of the State Government in view of the provisions of Sections 132 and 197 of the Criminal P. C. 1898. Several questions were raised in that case but the one with which we are concerned, is dealt with in paragraph 18 by the Supreme Court in the following words:

18. The last question to consider is that if the Court comes at any stage to the conclusion that the prosecution could not have been instituted without the sanction of the Government, what should be the procedure to be followed by it, i.e., whether the Court should discharge the accused or acquit him of the charge if framed against him or just drop the proceedings and pass no formal order of discharge or acquittal as contemplated in the case of a prosecution under the Code. The High Court has said that when the Sessions Judge be satisfied that the facts proved bring the case within the mischief of Section 132 of the Code then he is at liberty to reject the complaint holding that it is barred by that section. We consider this to be the right order to be passed in those circumstances. It is not essential that the Court must pass a formal order discharging or acquitting the accused. In fact no such order can be passed. If Section 132 applies, the complaint could not have been instituted without the sanction of the Government and the proceedings on a complaint so instituted would be void, the Court having no jurisdiction to take those proceedings. When the proceedings be void, the Court is not competent to pass any order except an order that the proceedings be dropped and the complaint is rejected

In Ratilal Bhanji's case (supra) also after observing that once a charge is framed the learned Magistrate must either acquit or convict the accused. Their Lordships hastened to point out an exception in the following words:Excepting where the prosecution must fail for want of a fundamental defect, such as want of sanction, an order of acquittal must be passed upon a 'finding of not guilty' turning on the merits of the case and the appreciation of evidence at the conclusion of the trial.

In the instant case also the learned Magistrate did not record any finding on the merits of the case. He merely came to the conclusion that the proceedings should be dropped because of want of valid sanction or consent which is the sine qua non under Section 20(1) of the Prevention of Food Adulteration Act. He, therefore, did not record any finding on merits and, therefore, could not have acquited or convicted the accused under Section 248 of the Code. The learned Sessions Judge was, therefore, wrong in coming to the conclusion that the order passed by the learned Trial Magistrate tant-amounts to an order of acquittal. It is on this premise that he dismissed the Revision Application as not maintainable. The premise being erroneous, the order of the learned Sessions Judge cannot be allowed to stand.

3. xxxxxxx

4. In the result the order passed by the learned Sessions Judge dismissing the Revision Application as not maintainable is quashed and the matter will go back to the learned Sessions Judge for disposal in accordance with law. The rule is made absolute accordingly.


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