1. The question which is required to be answered in this reference has been formulated by a learned Single Judge as follows.--
'Whether a local authority can be regarded as a complainant entitled to prefer appeal under Section 417 (3) of the Criminal Procedure Code against an order of acquittal in cases instituted on complaints filed by persons authorised by it in this behalf or with its written consent.'
2. In order to appreciate the question, it is necessary to state the facts of the present case, which are not in dispute. One Abhinandan Prashad Goyal, a Food Inspector, filed a complaint against respondent Prabhu Narain in the court of the Municipal-Magistrate of Jaipur, on October 30, 1963 for the alleged commission of an offence under Section 7 read with Section 16 of the Preyention of Food Adulteration Act, 1954 (hereinafter referred to as the Act), the allegation being that Prabhu Narain had sold adulterated 'ghee' to the Inspector on April 1, 1963. The learned Magistrateheld that the prosecution had not succeeded in proving its allegation, and acquitted the accused by his judgment dated June 18, 1964. The Municipal Council then preferred the present appeal under Section 417 (3) of the Code of Criminal Procedure after obtaining the special leave of this Court. At the hearing of the appeal, a preliminary objection was taken before a learned Single Judge, that the Municipal Council was not competent to tile the appeal as it was not the complainant in the case. As this was an important point of law which was common to several other pending appeals, it was thought proper that it may be decided by a division bench. This is how the reference has arisen.
3. We have heard learned counsel for the parties. It has been argued by Mr. Mehta, learned counsel for the Municipal Council, that as Food Inspector Abhinandan Prasad Goyal was authorised by the Municipal Council to file the complaint under Section 20(1) of the Act, it was the Council which was the real complainant in the case. He has also argued that Abhinandan Prasad Goyal was only the agent or delegate of the Council even though in the body of the complaint he (Abhinandan Prasad Goyal) had mentioned his personal name as the complainant. The learned counsel has cited M.J. Powell v. Municipal Board of Mussoorie (1900) ILR 22 All 123 (FB), Mahdo Chowdhury v. Turab Mian, AIR 1915 Cal 263, Emperor v. Bahawal Singh, AIR 1918 All in (1), Kannan Devan Hills Produce Co., Ltd. v. T. N. Madhavan Pillai, AIR 1956 TC 189 and Ramsagar Singh v. Chan-drika Singh, AIR 1961 Pat 364 to support his contention.
On the other hand, it has been argued by Mr. Tikku, on behalf of the respondent, that since the complaint was filed by the Food Inspector in his personal name, by virtue of the authority which had been given to him under Section 20(1) of the Act, Abhinandan Prasad Goyal had his own entity which was quite separate and distinct from that of the Municipal Council and that the Municipal Council could not be held to be the complainant in the case for any purpose whatsoever. The learned counsel has placed reliance on Nagar Mahapalika, Kanpur v. Sri Ram, AIR 1964 All 270, State through Medical Officer of Health, Moradabad v. Ishwar Saran. AIR 1964 All 497, Ra.ia Ram v. Ram Achal AIR 1962 All 6, Catholic Union Bank Ltd., v. Inasu Antony, ILR (1960) Ker 1123, Public Prosecutor v. Kappam Satyanaravana, AIR 1960 Andh Pra 27. In re Syed Ibrahim, AIR 1959 Mad 32, Prasannachary v. Chik-kapinachar, AIR 1959 Mys 106, S. Parama-nanda Nadar v. Karunakara Dass AIR 1914 Mad 387 (1), S. P. Dubey v. Narsingh Bahadur AIR 1961 All 447, Radhika Mohan Das v. Hamid All, AIR 1927 Cal 405, Muhammad Hashim v. Emperor AIR 1940 Sind 134 (FB) Isa v. Musammat Ranon (1912) 13 Cri LJ 136, Queen-Empress v.Chenchayya (1900) ILR 23 Mad 626. Partha-sarathi Naickar v. T. Krishnaswami Avvar, AIR 1928 Mad 169 (1), Mian Tei Singh v. Kalloo, AIR 1946 Oudh 15, and State through Nagar Mahapalika Varanasi v. Prem Prakash Jauhar AIR 1966 All 504.
4. Before examining the case law, it would be proper to take note of the provisions of Sub-section (1) of Section 20 of the Act. Shorn of the proviso which is not relevant for purposes of this case, it reads as follows--
'20. Cognizance and Trial of Offences. (1) No prosecution for an offence under this Act shall be instituted except bv. or with the written consent of the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority.'
Under this sub-section, the Administrator of the Municipal Council issued notification No. D. 972 H. S. dated July 24, 1963, as the Council had been superseded. The notification appeared in Rajasthan Raipatra dated September 12. 1963 and was to the following effect,--
'No. D. 972 H. S. -- By virtue of the powers conferred upon the Municipal Council City of Jaipur under Section 20 of the Prevention of Food Adulteration Act, 1954, I, Surya Swaroop. Administrator, Municinal Council. Jaipur, hereby authorise the undermentioned Food Inspectors to institute prosecution for an offence under the Prevention of Food Adulteration Act, 1954 and rules thereunder in the Court of law:
4. Abhinandan Prasad Goval. Food Inspector.
5. AS this is not a case in which the prosecution was launched with any 'written consent', the question is whether the prosecution instituted 'by' Food Inspector Abhinandan Prashad Goval, the person authorised by the order of the local authority, namely the Municipal Council of Jaipur, could be said to have been instituted by the Municipal Council as the complainant.
6. The term 'complainant' has not been defined in the Act or in the Codt of Criminal Procedure, although there can be little room for doubt that the definition of 'complaint' contained in Section 4 (1) (h) of the Code of Criminal Procedure is quite ample and adequate According to that definition 'complaint' means the allegation made to a magistrate, with a view to his taking action under the law, that a person has committed an offence. It would follow, therefore, that a complainant ii a personwho makes such an allegation to a magistrate.
7. In Black's Law Dictionary, the term 'complainant' has been defined as follows,--
'In practice one who applies to the courts for legal redress; one who exhibits a bill of complaint, .....
One who instigates prosecution or who prefers accusation against, suspected person. State v. Suyder. 93 N. L. J. 18, 107A, 167, 168.'
It would thus appear that one who makes an allegation, or an accusation, or a charge in order to prosecute a person, is a complainant. A priori, such an allegation or accusation or charge having been made by Abhinandan Prashad Goyal in the instant case, there is no reason why he should not be held to be the complainant.
8. In fact this appears to be an irresistible conclusion even on the wordings of Sub-section (1) of Section 20 of the Act mentioned above. Taking only the relevant provisions of that sub-section into consideration, it is apparent that prosecutions for the commission of offences under the Act can be instituted, inter alia, 'by' or 'with the written consent of' a local authority, or a person authorised by it. S three obvious courses are open to a local authority,--
(i) it can institute the prosecutions itself, or
(ii) it can give its written consent in favour of any person for any particular prosecution, or.
(iii) it can authorise a person to institute prosecutions by a general or special order
It does not therefore require much argument to hold that if a local authority decides to institute the prosecution, it shall itself be the complainant in the case, even though, being a body corporate, it may authorise some particular person to make the complaint on its behalf. If, however, it chooses to adopt any of the other two courses, it shall be the person who receives the written consent of the local authority, or who is authorised by it to institute the prosecutions, who shall be the complainant, and not the local authority, the reason being that in such a case it cannot be said that the allegation, or the accusation, or the charge has been made by the local authority. The prosecution having not been instituted 'by' the local authority under Sub-section (1) of Section 20 of the Act, the local authority can not be deemed to be the complainant in the case. That being so. it will be that other person who shall be the complainant and he alone shall be competent to file an appeal under Section 417 (3) of the Code of Criminal Procedure.
9. In the present case, it is not disputed that the prosecution was not instituted by the Municipal Council of Jaipur, or in its name: nor did the Council give its written consent for the prosecution. For ought one knows, the Council may not evenbe aware of this prosecution when it was instituted. What the Council did was to authorise Abhinandan Prasad Goyal, by the general order mentioned above, to institute prosecutions for offences under the Act and the rules made thereunder. When, therefore, Abhinandan Prashad Goyal acted under such a general authorisation and prosecuted the respondent it is quite obvious that the prosecution was instituted by him and not by the Council.
10. A perusal of the complaint leaves me in no doubt that this was really so and that the complaint was not filed by or on behalf of the Council. In the cause title of the printed complaint, Abhinandan Prashad Goyal inserted his own personal name as the complainant. He made it quite clear that he, the complainant, was a Food Inspector in the Municipal Council, and he referred to the general order of authorisation dated September 12, 1963, as his authority for launching the prosecution. At the end of the complaint, he struck off the words in print that the complaint had been filed by the Administrator, Municipal Council, Jaipur, and, by suitable insertions, made it known to the Magistrate that he. Abhinandan Prashad Goyal, Food Inspector, was the complainant in the case.
11. In these facts and circumstances, it is quite futile to argue that it was the Municipal Council which was the complainant either in law or in fact.
12. I may now consider the other question whether in instituting the prosecution Abhinandan Prashad Goval acted as the agent, or the delegate of the Municipal Council, as has been argued by Mr. Mehta, and whether the complaint thereby became the complaint of the Council.
13. Agency and delegation have some times been used as indistinguishable terms, but it cannot be doubted that there are basic differences in these two forms of representation. I need not, however, examine them closely, for that is not necessary for purposes of this case. It is sufficient to say that an agent acts on behalf of his principal and often uses his name, and his acts in that capacity are attributable to the principal The same is, more or less, the position regarding the delegation of an administrative power, although delegation generally implies a parting with authority. But the ordinary concepts of agency or delegation are not relevant for purposes of the present case because while it is permissible for the principal to give detailed instructions to the agent who does not, speaking generally, have an appreciable range of personal discretion, a person to whom a statutory power to discharge such an important function as the instituting of prosecution has been delegated, exercises a substantial measure of freedom and acts according to his own discretion. This is so because the authority having been entrusted to him by virtue of a provision in the statute, he in the absence of a provision to the contraryin that statute, has to discharge it. according to his individual discretion or judgment.
14. Having taken this view it. would be the next and the inevitable step to hold that in exercising his authority and instituting the prosecution of the respondent, Abhinandan Prashad Goyal did not act on behalf of the Council, but acted in his own individual capacity. That seems to be the reason why he filed the complaint in his own name, making a reference to the notification which had been issued under Subsection (1) of Section 20 of the Act and stating that he had been given the general authority to institute such prosecutions. He was therefore the complainant in the case, and not the Municipal Council.
15. I may then refer to Section 417 of the Code of Criminal Procedure which deals with appeals in cases of acquittal. Sub-section (3) provides that if such an order of acquittal is passed in any case instituted upon a complaint and the High Court, on an application made to it 'by the complainant' in that behalf, grants special leave to appeal from the order of acquittal, he may present such an appeal to the High Court. As Abhinandan Prashad Goyal was the complainant and not the Municipal Council, he was undoubtedly the competent person to make an application for the grant of special leave to appeal, and not the Council. It was of course open to the Municipal Council to institute the prosecution of the accused and become the complainant if it so desired, but as it did not choose to do so, it cannot turn round and say that Abhinandan Prashad Goyal merely acted on its behalf and that we should hold that it was the Council which was the real complainant in the case. In fact the Council has not even laid the claim that the complaint had been filed by it through the agency of Abhinandan Prashad Goyal or that for some reason that agency had been terminated so as to justify the contention that we should treat the Council as the complainant in the case.
16. I am aware that the view which I have taken may give rise to difficulties in certain circumstances. As Mr. Mehta has pointed out. Abhinandan Prashad Goval might refuse to file an appeal in a given case, against an order of acquittal, even though the Municipal Council may like him to file an appeal. But even such a case would not be without a remedy, for it would be open to the Council to move the State Government to prefer an appeal under Sub-section (1) of Section 417 of the Criminal Procedure Code. I am, however, not really concerned with any such difficulty or its solution as the function of the Court is to state the correct legal position.
17. It may be mentioned that a somewhat similar point of law arose for consideration in AIR 1964 All 270 which has been cited on behalf of the respondent. That was also a case of a prosecution under Section 20(1) of the Act. On reading the complaint as a whole, their Lordships of the Allahabad High Court held that it wasmade by the Medical Officer of Health of the Nagar Mahapalika of Kanpur and that he alone, and not the Nagar Mahapalika, could prefer an appeal to challenge the order of acquittal
In AIR 1964 All 497, the Inspector had filed the complaint after obtaining the consent of the Medical Officer who was authorised to consent within the meaning of Section 20 of the Act. The accused was acquitted and the Medical Officer applied for special leave to appeal. It was held that the appeal was not maintainable for the reason that the Food Inspector was the complainant in the case. Then there is the case of AIR 1966 All 504. In that case also the complaint for the prosecution of the accused was filed by the Food Inspector who had been authorised under Section 20 of the Act. while the Nagar Mahapalika of Vara-nasi made an application for special leave to appeal. It was held that it was the Food Inspector who was the complainant and not the Mahapalik'a. Some other cases have been cited bv Mr. Tikku to explain the meaning of the term 'complainant', but they are not really relevant for they relate to Sections 247, 248 or 250 of the Code of Criminal Procedure or are meant to show what meaning has been assigned to the term 'complainant' in some other context. They have no direct bearing on the present case and it is not necessary to consider them here.
18. I may now refer to the cases which have been cited on behalf of the appellant. The first of these is (1900) ILR 22 All 128 (FB) which is a full bench decision of the Allahabad High Court. In that case their Lordships considered the provisions of Section 69 of Act No. XV of 1883 which provided that a court shall not take cognizance of an offence punishable under that Act, or the rules made thereunder, 'except on the complaint of the Municipal Board, or of some person authorised by the Board in this behalf' A resolution of the Board was brought to their Lordships' notice in which the Secretary, among others, was vested with the authority to institute prosecution 'on behalf of the Board'. The Secretary made a complaint and the question arose whether it was in order. It was argued before their Lordships, that it was necessary for the Board to decide whether a particular person should be prosecuted in each case and that it was not permissible for an authorised person acting under a general authority to lay the complaint before the proper court. Their Lordships negatived the contention and held that this was not the meaning of the provision of the law and that the authorised person not only had tht authority to file a particular complaint but a general authority to pro-secute for municipal offences, including the authority to determine whether a prosecution was desirable and they therefore upheld the complaint as having been made by a person who had been authorised by the Hoard within the meaning of Section 69. There is nothing in the judgment which could be said to help the appellant.
AIR 1915 Cal 263 was a case in which the complaint was made by a servant of a zamindar, who died thereafter. The accused was therefore acquitted under Section 247 of the Code of Criminal Procedure. In the meantime another servant of the zamindar had complained for the same offence, but it was dismissed under Section 203 of the Code of Criminal Procedure on the ground that the previous acquittal was a bar to the second complaint. Their Lordships held that the previous acquittal could not operate as a bar and that even if it was a bar, they were going to remove it. There is nothing in that judgment which could bt said to be relevant for purposes of the present case.
AIR 1918 All 111 (1) is also not relevant because it relates to the scope of Section 250 Cr. P. C. under which compensation is payable by the person upon whose application an accusation is made, if the Magistrate is satisfied that the accusation was frivolous or vexatious. In that case the order to pay compensation was made against a person who was really responsible for giving the information containing the accusation but who did not directly move the court against the accused. It has been argued that that case shows that it is open to a court to find out the real complainant apart from the cause title, for purposes of Section 250 Cr. P. C., but ours is not a case of that nature and so the case does not carry us any further.
AIR 1961 Pat 364 has been cited for a similar purpose and is therefore of no real help. In AIR 1956 TC 189 it has been held that a complaint can be filed by an agent on behalf of the principal. The accused in the case was acquitted under Section 247 Cr. P. C. as the complainant was not present on the date of the hearing, for he had retired from the service of the company in which he was employed and in respect of whose property he had filed the complaint alleging that the accused had committed criminal trespass. His successor filed a memorandum stating that his predecessor had retired and that he had taken his place. Their Lordships held that 'with reference to the complaint' they had no hesitation in holding that the earlier complaint had been filed for and on behalf of the Company, as its name had been given in the cause title in which it was further stated that the Company was represented by its former employee who had retired. This is not so in the present case.
19. Thus the cases cited by Mr. Mehta have no real bearing on the point in controversy.
20. I have already given my reasons for holding that Food Inspector Abhinandan Prashad Gova] was the complainant in the present case and that he alone could prefer an appeal under Section 417 (3) Cr. P C. So my answer to the question under reference would be that in a case like this a local authority cannot be regarded as a complainant for the purpose of presenting an appeal under Section 417 (3) of the Code of Criminal Procedure against an order of acquittal when the prosecution for an offence under the Prevention of Food Adulteration Act, 1954 has been instituted by a person authorised by it in that behalf by a general order under Section 20(1) of the Act. For the same reasons, the same is my answer where the prosecution has been instituted with the written consent of a local authority under the aforesaid section.
21. I agree with my learned brother Shinghal J. but with considerable hesitation. I may give reasons for my hesitation.
22. The expression 'complainant' has not been defined in the Criminal Procedure Code (hereinafter called the Code). Section 4(1)(h) of the Code, however, defines 'complaint' and unless a different intention appears from the subject or context, it 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'. This is a technical definition. If we adopt this technical definition for 'complainant,' it must mean, unless a different intention appears from the subject or context, the person who has filed the complaint.
The question is whether the expression 'complainant' should be restricted in its interpretation only to the person who had filed the complaint or it should be given a wider meaning under certain circumstances. If so, what is the amplitude of such wider meaning? The word 'complainant' has occurred in various places in the Code. Section 200 provides for the examination of the complainant on the presentation of a complaint. Section 247 provides for the dismissal of the complaint if the complainant does not appear upon the day appointed for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned. Before the amendment of the Code vide the Code of Criminal Procedure (Amendment) Act, 1955, the Magistrate had no discretion to dispense with the attendance of the complainant except in the case of a public servant, but the old proviso which was confined to a public servant has been amended and the new proviso is in order and grants a discretion to the Magistrate even when the complainant is not a public servant by laying down that where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. The main section, however, lays down that the accused is entitled to acquittal, unless the Magistrate for reasons thinks it proper to adjourn the case. In case the complainant does not appear onthe date of the appearance. The purpose behind this provision appears to be that in a case filed on a complaint, not only the accused but also the complainant must be present in the court at the time of the trial. If the complainant is dead, obviously he cannot be present in the court. The view taken in some cases is that this section is applicable even when the absence of the complainant is due to his death. Reference may be made in this connection to Bontu Appala v. Emperor, AIR 1928 Mad 167, Hazara Singh and Sohan Singh v. Crown, AIR 1922 Lah 227 and A. N. M. Ashraf v. Surendra Nath Sen, AIR 1949 Cal 252. But a contrary view has been taken in other cases. Reference in this connection may be made to Mahomed Azam v. Emperor, AIR 1926 Bom 178, Jitan Dusadh v. Damoo Sahoo, AIR 1916 Pat 152 and Anand Rao v. Gadi, AIR 1932 Nag 72. This Court has accepted the latter view in Gajraj Singh v. Rup Narain, ILR (1955) 5 Raj 927. In that case. it has been decided that the words 'the complainant does not appear' imply volition on the part of the complainant which can be exercised only when he is alive.
In AIR 1926 Bom 178 it has been pointed out that the maxim 'actio personalis moritur cum persona' in civil law confined to torts and does not apply to a case of non-cognizable offence instituted upon a complaint and that the trying magistrate has discretion in proper cases to allow the complaint to continue by a proper and fit complainant, if the latter is willing. The same view is expressed in AIR 1932 Nag 72. In my humble opinion the Court has inherent power on the death of the complainant, who filed the complaint, to bring on record any other person as a complainant with his consent. This power oi course should be sparingly exercised and it will always be borne in mind that it does not operate to the harassment of the accused. Such a person when he is brought on the record is as much the complainant for purposes of the trial as the person who has filed the complaint. Thus the strict definition of the 'complainant' as formulated on the basis of the complaint breaks down in a case of the death of the complainant, who filed the complaint in the course of the trial when the court has approved some other person to adopt the role of the complainant. Such a person will be treated as a complainant for the purpose of filing of an application for grant of special leave to appeal from an order of acquittal under Section 417 (3) of the Code which provides that if an order of acquittal is passed in any case instituted upon a complaint, the complainant may present an appeal to the High Court, if the High Court has granted special leave to appeal on an application made to it by the the complainant in this behalf.
23. Let us now take a case in which a complaint is filed by a Corporation. The title of the complaint showed that it had been filed on behalf of the Corporation.Now a Corporation cannot act except through a duly constituted agent Such an agent will sign the complaint and it is such an agent who will be examined by the Magistral under Section 200 of the Code, For the purpose of examining and sign; of the statement recorded by the Magistrate such dulv constituted agent will be treated as as complainant in spite of the fact that the complaint purports to be by the Corporation
24. Now let us proceed further and take a case in which the Corporation dismissed such dulv constituted agent after the presentation of the complaint and a points a new one for proceeding with the case. Can it be said that in such a case the newly appointed agent cannot be treated as a complainant for the purpose of his examination under Section 200 and for appearance of the complainant under Section 247? In my humble opinion, there is no reason for not treating the appearance of the newly appointed agent as that of a complainant. The same situation may arise when a complaint is filed by a statutory body like a Municipal Council.
25. Now take a case in which a statutory body has authorised some person to file a complaint Such person files the complaint in his own name. I have already pointed out. that in case such a person dies, the court is empowered to pass an order to treat the statutory body as a complainant for further proceeding in the case if such an application is made bv the statutory body. The point arises whether such power of the court should be confined only to the case when there is a death of the person who filed the complaint or may even be exer-cised when the statutory body makes a re-presentation to the court that the person who filed the complaint was its servant and his services have been terminated or transferred to another department or place
Here again I am of the view that the court may permit the statutory body to be treated as a complainant for the further progress of the trial. The reason is that the court has taken cognizance of the offence and in the absence of anvthine in the Code to the contrary it has ample power to make such orders as mav be conducive to a fair trial of the offence subiect to the overriding consideration that no order should be passed which will cause unnecessary harassment in the accused Let us proceed a step further.
Take the case in which the statutory body having been permitted to be treated as a complainant, it happens that the accused is acquitted In such circumstances the statutory body can apply under Section 417 (31 of the Code for grant of special leave to appeal and can also prefer the appeal.
26. Now take a case in which the per-son authorised bv the statutory body represented the statutory body till the end of the trial which ended in the acquittal of the accused and thereafter before the appeal could be filed by him he dies or his services are terminated by the statutory body or he is transferred to some other place or department. The question arises whether under these circumstances the statutory body can itself file an application under Section 417 (3) for grant of special leave to appeal. One view may be that there is a slender difference between the two cases, that is, the r-ase in which the statutory body has been permitted to be treated a? complainant at the trial and the other in which such request is made bv the statutory body in appeal. In both these the process of reasoning is the same and the statutory body ha? the right to file an application for erant of special leave to appeal and when such leave is granted to file an appeal. The other view may be that whatever may be the position when the statutory body has been permitted to be treated as a complainant before the order of acquittal such order should not be brought in jeopardy at the instance of any other person except the one who was the complainant or treated to he the complainant in the trial court
27. Section 417(3) provides that an application for grant of special leave to appeal should be made by the complainant It is clear that it is onlv the complainant who has been granted a special right to file an application for grant of special leave to appeal It will be stretching the law too far to permit one person to be substituted in place of other as a complainant after the order of acquittal After all a competent court of law has acquitted the accused and such order of acquittal should not be allowed to be questioned except in the manner laid down in the Code. A criminal statute has to be strictly interpreted and the mode provided in a criminal statute for bringing an order of acquittal in question should not be enlarged even in case where there might appear to be some lacuna in the law It is this consideration which has persuaded me to accept the view, that only the person, who had filed the complaint or who was treated as a complainant in the trial court should be permitted to file an application under Section 417(3) of the Code for grant of special leave to appeal and to file an appeal against the order of acauitfal
28. Moreover in this case the Municipal Council, Jaipur who has filed the appeal had not mentioned why it should be permitted to be treated as a complainant for the purpose of filing an application t or grant of special leave to appeal or for the purpose of filing an appeal In the absence of anv such circumstance I am not prepared to treat the Municipal Council as a complainant under Section 417(31 of the Code in this case.
29. With these words, I concur with my learned brother Shinghal J