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Jyotish Kumar Saha Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1981CriLJ1334
AppellantJyotish Kumar Saha
RespondentThe State
Cases ReferredSk. Osman Gani v. Baramdeo Singh
Excerpt:
- .....alleged therein. section 190(1) of the criminal p. c. contains the provision for cognizance of offences by magistrates. it provides for three ways in which such cognizance can be taken. the first is on receiving a complaint of facts which constitute such offence; the second is on a report in writing of such facts - that is, facts constituting the offence - made by any police officer; the third is upon information received from any person other than a police officer or upon the magistrate's own knowledge or suspicion that such offence has been committed. section 193 provides for cognizance of offences being taken by courts of session on commitment to it by a magistrate duly empowered in that behalf. section 194 provides for cognizance being taken by high court of offences upon a.....
Judgment:

Monoj Kumar Mukherjee, J.

1. With the written consent of the Local (Health) Authority, Birbhum, Sri Dhirendra Kumar Banerjee, a Food Inspector of Birbhum filed a complaint against the petitioner in the Court of the Chief Judicial Magistrate, Birbhum under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 ('Act' for short) alleging that on September 21, 1978, the petitioner exposed for sale mustard oil in his grocery shop, which on analysis was found to be adulterated. The learned Magistrate convicted the petitioner of the said offence and sentenced him to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for one month more. As the appeal preferred against the said conviction and sentence was dismissed by the Additional Sessions Judge, Second Court, Birbhum, the petitioner moved this Court in revision, and obtained the present Rule.

2. The only point that has been urged in support of the Rule is that the provision of Sub-section (2) of Section 13 of the Act has not been properly complied with and due to such non-compliance the petitioner has been seriously prejudiced in his defence. For proper appreciation of the point so raised it will be necessary to refer to certain facts, which now stand established by the concurrent findings of the Courts below.

3. The samples of mustard oil were taken on September 21, 1978 and were sent for analysis by the Food Inspector on September 22, 1978. On analysis the Public Analyst found the same adulterated and sent his report to the Local (Health) Authority, Birbhum on October 30, 1978; and the latter in his turn sent the report to the Food Inspector on November 27, 1978. On the basis thereof, the Food Inspector filed the complaint before the learned Chief Judicial Magistrate on 7-12-1978, with the requisite consent of the Local (Health) Authority. On the same day the Local (Health) Authority sent a report of the Public Analyst to the petitioner by registered post; and by the forwarding memo informed the petitioner that if it was so desired he might make an application to the Chief Judicial Magistrate, Sun within a period of ten days from the date of receipt of the report to get the sample of the mustard oil kept by the Authority analysed by the Central Food Laboratory. The report was received by the petitioner on 13-12-1978. Though the complaint was received by the learned Magistrate on 7-12-1978 he took cognisance upon the complaint on December 29, 1978 and issued process against the petitioner.

4. Mr. Roy, the learned Advocate appearing for the petitioner, contended that the obligation of the Local (Health) Authority under Sub-section (2) of Section 13 of the Act to send the report of the analysis was after the institution of prosecution; and since 'institution of prosecution' envisaged the stage of taking cognisance there was no proper compliance with the said Sub-section as the report of the Public Analyst in the instant case was sent on the date the complaint was filed, that is on December 7, 1978, and not immediately after cognizance was taken on the complaint on December 29, 1978. According to Mr. Roy, due to such non-compliance with the statutory provisions of Sub-section (2) of Section 13 the petitioner was deprived of his valuable right of making an application under Sub-section (2A) of the said section and thereby he was greatly prejudiced in his defence. The only question therefore that falls for determination in this Rule is what is the meaning of the word 'institution of prosecution' appearing in Section 13(2) of the Act. If by 'institution of prosecution' it means filing of complaint then there cannot be any manner of doubt, from the facts earlier stated, that there was a proper compliance with the provision of Section 13(2) of the Act. If however 'institution of prosecution' refers to the stage of taking cognisance of the complaint by the Court, as contended by Mr. Roy, it must be held that there was not a proper compliance with the above provision and in that case it will be necessary to consider whether the petitioner was prejudiced in his defence due to such non-compliance. For answering the above question it will his first necessary to refer to Sub-section (2) of Section 13 of the Act, which, so far as it is relevant for our present purposes, reads as follows :-

On receipt of the report of the result of the analysis under Sub-section (1) of the Act that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of article of food was taken...forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person...informing such person...that if it is so desired, either or both of them (he) may make an application to the Court within a period of 10 days from the date of the receipt of copy of the report to get the sample of article of food kept by the Local (Health) authority analysed by the Central Food Laboratory.

In support of his contention that 'institution of prosecution' refers to the stage of taking cognisance by the Court, Mr. Roy first referred to the decision of the Supreme Court in the case of Jamuna Singh v. Bhadai Shah, reported in : 1964CriLJ468 , which is an authority for the pro-1 position that 'institution of a case' in a Court under Criminal P. C. refers to the stage when the Court takes cognisance of the offences alleged therein and relying upon the said authority Mr. Roy contended that 'institution of prosecution' within the meaning of Section 13(2) of the Act, and 'institution of a case', within the meaning of Criminal P.C. in a Court meant one and the same thing and to supplement his above contention Mr. Roy relied upon the decision of the Supreme Court in the case of Maqbool Hussain v. State of Bombay reported in : 1983ECR1598D(SC) wherein 'prosecution' has been denned. Mr. Roy also referred to the decision of the Supreme Court in the case of Bhimappa v. Lax-man, reported in : 1970CriLJ1132 wherein it has been held that 'case instituted upon a complaint' within the meaning of Section 417(3) of Criminal P.C. 1898 means a case where cognisance has been taken on a complaint and not to a case where complaint has been filed in a Court, but no cognisance has been taken thereupon.

5. In the case of Jamuna Singh (supra) (at p. 470 of Cri LJ) the Supreme Court, while explaining the meaning of the words 'institution of a case', observed as follows;-

The Code does not contain any definition of the words 'institution of a case'. It is clear however and indeed not disputed that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. Section 190(1) of the Criminal P. C. contains the provision for cognizance of offences by Magistrates. It provides for three ways in which such cognizance can be taken. The first is on receiving a complaint of facts which constitute such offence; the second is on a report in writing of such facts - that is, facts constituting the offence - made by any police officer; the third is upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion that such offence has been committed. Section 193 provides for cognizance of offences being taken by Courts of Session on commitment to it by a Magistrate duly empowered in that behalf. Section 194 provides for cognizance being taken by High Court of offences upon a commitment made to it in the manner provided in the Code.

An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence a case is instituted in the Magistrate's Court and such a case is one instituted on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in writing of such facts made by any police officer it is a case instituted in the Magistrate's Court on a police report.

What is meant by the word 'case', was succinctly stated by a Division Bench of our Court in the case of Sk. Osman Gani v. Baramdeo Singh, reported in 63 Cal WN 181 : 1959 Cri LJ 311. While dealing with the provisions of Section 417(3) of Criminal P.C. 1898 the Court had to consider the meaning of the words 'any case instituted upon a complaint' appearing therein and in interpreting those words the Court pointed out that the Code of Criminal Procedure made a specific distinction between two classes of proceedings or cases, one instituted on the complaint and the other instituted on police report and observed that 'case instituted on a complaint' could only mean case in which cognisance was taken upon a complaint. The Court further observed (at Pp. 312, 313 of Cri LJ):-

The expressions 'proceedings' and 'cases' in the different sections already noticed appear to me to have been used in the same sense. A case is a cause and there is no cause before the Court until the Court initiates proceedings on the basis of it.'

The above observations made by the Division Bench clearly show that 'institution of a case' relates to a stage when the Court initiates proceedings on a complaint, or a charge-sheet as the case may be. That is to say, when the Court takes coenisance upon the complaint or charge-sheet it can be said that a 'case' is instituted before a Court within the meaning of Criminal P. C.

6. Now that we have found the meaning of the words 'institution of a case1' in a Court under Criminal P. C. let us find out the meaning of the words 'institution of prosecution' with particular reference to Section 13(2) of te Act. In the case of Moqbool Hossain 1953 Cri LJ 1432 (SC) (supra) 'prosecution' has been defined to mean an initiation or starting of proceedings of a criminal nature before a Court of law or judicial tribunal in accordance, with the procedure prescribed in the Statute which creates the offence and regulates the procedure. Section 20(1) of the Act provides the procedure for initiation or starting of proceeding; and it reads as follows :-

20. Cognizance and trial of offences. - (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.Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in Section 12, if he produces in Court a copy of the report of the public analyst along with the complaint.

From a plain reading of the above Sub-section including the proviso there of, it will be indisputably clear that, as soon as the party aggrieved files the complaint before the Court, after complying with the requirement of Section 20(1) the prosecution is instituted. 'Institution of prosecution1' under the Act, and for that matter under Section 13(2) thereof, therefore means filing of the complaint after complying with the prerequisites of Section 20(1). On receiving the complaint when the Court applies its judicial mind and takes cognisance of the offence disclosed by the complaint, under Section 190(1)(a) of Criminal P, C. it; amounts to 'institution of a case'1 in a Court, within the meaning of Criminal P. C. as pointed out in the case of Jamuna Singh 1964 (2) Cri LJ 468 (SC) (supra) and becomes a 'case instituted upon a complaint' under Section 117(3) of Criminal P.C. 1808, as held in the case of Bhimappa 1970 Cri LJ 1132 (SC) (supra). In view of the above discussion the first contention of Mr. Roy fails and the second contention becomes otiose.

7. The application accordingly fails and the Rule is discharged. The petitioner who is on bail will now surrender to his bail bond to serve out the sentence.

S.N. Sanyal, J.

8. I agree.


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