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G.K. Mazmudar, Food Inspector Vs. Mohmad Kasam and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1965)6GLR867
AppellantG.K. Mazmudar, Food Inspector
RespondentMohmad Kasam and anr.
Excerpt:
- - code should not be applied to a case like this......on the ground that it did not bear his signature and also requested for permission to file a fresh complaint. the learned magistrate passed an order permitting withdrawal of the complaint with a further permission to file a fresh complaint and acquitted the accused under section 248 of the criminal procedure code. the said section 248 reads as under:if a complainant at any time before a final order is passed in any case under this chapter satisfies the magistrate that there are sufficient grounds for permitting him to withdraw his complaint the magistrate may permit him to withdraw the same and shall thereupon acquit the accused.if a complaint is withdrawn whatever be the reasons for doing so the section comes into operation in a summons case. section 4(1)(h) of cr. pro. code.....
Judgment:

V.B. Raju, J.

1. A complaint was filed under the Prevention of Food Adulteration Act, which was not signed by the Food Inspector. Summons was issued to the accused. When the accused appeared, he contended that the complaint was not legal as it was not signed by the complainant.

The Food Inspector gave an application to withdraw the complaint on the ground that it did not bear his signature and also requested for permission to file a fresh complaint. The learned Magistrate passed an order permitting withdrawal of the complaint with a further permission to file a fresh complaint and acquitted the accused under Section 248 of the Criminal Procedure Code. The said Section 248 reads as under:

If a complainant at any time before a final order is passed in any case under this Chapter satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint the Magistrate may permit him to withdraw the same and shall thereupon acquit the accused.

If a complaint is withdrawn whatever be the reasons for doing so the section comes into operation in a summons case. Section 4(1)(h) of Cr. Pro. Code 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.

2. This was not a case where the complaint had been dismissed for want of a proper Sanction. It is not necessary for the complainant to sign the complaint. It is true that under Section 20 of the Prevention of Food Adulteration Act which reads as under:

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 authorised in this behalf by the State Government or a local authority;...

there should be a consent of a particular person but that consent may be proved in the course of trial. It is on record that the Chief Officer of the Municipality sanctioned the prosecution. It is not necessary for a complaint to be signed by the complainant and there is no reason why the provisions of Section 248 of the Cr. Pro. Code should not be applied to a case like this. As I have already observed this is not a case where a complaint is not a valid one. If the original complaint is not valid then in that case whatever orders were passed with reference to that complaint would not be valid. It was not necessary for the Food Inspector to withdraw his complaint but he should have proceeded with it. It was also not proper for the Magistrate to sanction the filing of a fresh complaint. He has no power to do so in view of Section 403 of the Cr. Pro. Code. In a case where the section applies permission cannot be given to file a fresh complaint. The order of acquittal passed under Section 248 Cr. Pro. Code is a proper one in this case.

3. The reference is therefore accepted and Second Case No. P.F.A. Case 29/64 is held to be barred under Section 403 Cr. Pro. Code.


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