P A MATHEW Vs. FOOD INSPECTOR PALAI MUNICIPALITY

JUDGEMENT

(1.) The revision petitioner is the first accused in C.C. No. 210 of 1974 of the Court of the Judicial Magistrate of First Class, Palai. The Food Inspector of the Palai Municipality lodged a complaint against the first accused for an offence punishable under S.7 read with S.16 of the Prevention of Food Adulteration Act (for short the Act). The case of the complainant is that on 7-3-1974, the complainant, Pw. 1 visited the shop of the first accused at 11-35 A M. and purchased a sample of Vinegar, which, on analysis by the Public Analyst, was found to be adulterated. The 1st accused, who was the sole accused at that time pleaded not guilty and claimed that he purchased the article under a warranty, Ext. D2 issued by the second accused, examined as Dw 1 in the case. On the warranty being proved, the court directed the 2nd accused to be brought on record under S.20A or the Act. On receipt of summons, the second accused appeared before Court. The complainant was again examined and he was afforded an opportunity to depose to the facts relating to the second accused. Basing on the warranty the Trial Court ultimately acquitted the first accused. The court held that on the facts of the case, the acts of the two accused could not be held to be parts of the same transaction, their joint trial was irregular and as there was no allegation in the complaint against the second accused, be was liable to be discharged. An order of discharge was, therefore, passed under S.245(1) of the Cr.P.C. The complainant, Food Inspector thereupon filed Crl. R.P. No. 60 of 1975 before the Court of Session, Kottayam. The learned Additional Sessions Judge, who disposed of the case observed that there could be no acquittal before training a charge and that the Trial Court ought to have framed a charge against both the accused and should have proceeded with the trial. Taking the above view, the order passed by the Trial Court was set aside. The Trial Court was directed to frame a charge against both the accused and to dispose of the case after trial The present revision petition is filed by the first accused challenging the order of the learned Sessions Judge,

(2.) The first point taken on behalf of the petitioner is that the learned Sessions Judge was wrong in setting aside the order of acquittal. According to the petitioner, the proper procedure was to file an appeal against the acquittal of the 1st accused and a revision petition against the discharge of the second accused. This contention, however, has no weight. Under S.399(1) Cr.P.C., the Sessions Judge is competent to exercise all or any of the powers which may be exercised by the High Court under sub-s.(I) of S.401. It is no doubt true that S.401 of the Cr. P.C. does not authorise the High Court to convert a finding of acquittal into one of conviction. The section, however, does not restrict the power of the High Court to consider the legality of an order of acquittal and in proper cases to order a retrial. Therefore, the order of the learned Session Judge setting aside the acquittal of the 1st accused and directing further trial cannot be said to be one passed without jurisdiction.

(3.) The main point arising in revision is the legality of the proceedings before the Judicial Magistrate of the First Class, Palai The stand taken by the revision petitioner is that the order of the Judicial Magistrate, Palai, acquitting him is not liable to be set aside. The respondent. Municipality, on the other hand, contends that the proper procedure that should have been followed by the court was to conduct a de novo trial against both the accused after framing a charge. In fact, one of the reasons given by the learned Sessions Judge for interfering with the order of the Trial Court is that the acquittal was without framing a charge. The learned Sessions Judge is of the view that after the second accused was brought on record a fresh trial should commerce and whatever transpired prior to the introduction of the second accused on record should be ignored. The learned Sessions Judge proceeded on the footing that a joint trial of accused 1 and 2 is obligatory and such joint trial is possible only if proceedings are started de novo and a fresh charge is framed In other words, according to the learned Judge, the charge framed against the first accused and the evidence recorded including that of dw. 1 have to be ignored for the purpose of the trial.