KANAHAYA LAL KANODIA Vs. STATE OF DELHI

JUDGEMENT

(1.) The learned counsel for the petitioner submits that the petitioner is aggrieved by the order dated 31.07.2006 whereby the learned Metropolitan Magistrate has directed that the case be tried by the court of Sessions. He points out that hitherto the matter was being tried by the Magistrate's Court. He submits that this order has been passed and would amount to a review of a previous order dated 24.03.1999 passed by his learned predecessor when he heard arguments on this very issue as to whether the case is liable to be committed to the Sessions Court or not and decided that it was a case which was not liable to be committed to the Sessions Court. He submits that between 24.03.1999 and 31.07.2006, nothing has happened to enable the learned Metropolitan Magistrate to take a different view. That being the case, the passing of the order dated 31.07.2006, according to him, would amount to a review of the earlier order which he is not empowered to do. He submits that on this ground alone, the impugned order is liable to be set aside.

(2.) He further pointed out that while passing the order on 24.03.1999, the learned Metropolitan Magistrate had examined the entire issue with regard to the gravity of the offence and he had specifically noted that neither in the certificate issued by Director CFL, Calcutta nor in the report issued by Public Analyst, has it been mentioned that consumption of such type of oil was likely to cause death or was injurious in nature. He submits that the finding of the Public Analyst as well as the Director CFL, Calcutta is to the extent that the oil was adulterated and/or did not conform to standards. There is no finding therein which indicates that it is likely to cause death or was injurious in nature. He submitted that in the complaint, the report of the Public Analyst is sought to be quoted and it is quoted in the following manner: "The sample does not conform to the standards laid down under item No. A. 17.06 of Appendix "B" of PFA Rules, 1955 because the sample shows the presence of Argemone oil", it is injurious to health and also likely to cause death. He pointed out, with reference to the above extract, that the quotation marks begin at the words "The sample does" and end with the words "presence of Argemone oil" The words following it, namely, " it is injurious to health and also likely to cause death" do not form part of the report of the Public Analyst but have been added by the complainant. Therefore, the earlier order dated 24.03.1999 has correctly recorded that neither the certificate of the Director CFL Calcutta nor the report of the Public Analyst mentions that the consumption of such type of oil was likely to cause death or was injurious in nature.

(3.) The learned counsel for the State advanced arguments in support of the order on committal, which is impugned herein. She submitted that this was a discretion which vested with the Magistrate as to whether a case was fit for committal or not and power could be exercised by the Magistrate under Section 323 of the Code of Criminal Procedure, 1973 at any stage. She placed reliance on the decision of a learned single Judge of this court in Bal Kishan v. Local Health Authority: 2002(2) FAC 113. The Court after referring to the various provisions of law and other decisions, came to the following conclusions: