HARNAMSHI B DIGWA Vs. THACKER VALJI KUNVERJI DECD

JUDGEMENT

(1.) The Food Inspector Bhuj Municipality filed a criminal complaint No. 164 of 1979 in the Court of the learned Chief Judicial Magistrate Bhuj against the present respondents Nos. 1 2 and 3 for the commission of an offence punishable under the Prevention of Food Adulteration Act 1954 on the ground that grams (Chhana-dal) were adulterated. In order to lodge a complaint the Food Inspector had sought sanction of the local authority as required by sec. 20(1) of the Act. That section reads as under:

(2.) The Supreme Court in Ratilal Bhanji v. State of Maharashtra A.I.R. 1979 S. C. 94 had an occasion to examine the scheme of the relevant provisions of the Code dealing with warrant cases. It pointed out that in a warrant case instituted otherwise than on a police report an order of discharge can be made only after the process has been served and before the charge 19 framed. It further pointed out that if after evidence is led the learned Magistrate is of the opinion that the allegation is baseless he may discharge the accused. If however the evidence discloses a prima facie case it is incumbent on the Magistrate to proceed under sec. 254 and frame a charge against the accused. Once a charge is framed the Magistrate has no power under sec. 227 or any other provision of the Code to cancel the charge and reverse the proceedings to the stage of sec. 253 and discharge the accused. In the instant case the Magistrate had already framed a charge after considering the evidence of the Food Inspector. He could not have quashed that charge and therefore the impugned order could never be said to be an order of discharge. After the framing of charge if the accused enters a plea of not guilty the learned Magistrate must proceed with the trial in the manner provided in sec. 254 and 258. Once a charge is framed the Magistrate has no power to discharge the accused because after he has reached the post-charge stage he can either acquit or convict the accused unless he decides to proceed under sec. 325 or 360 of the Code. It is presumably for this reason that the learned Sessions Judge thought that since the post-charge stage was reached the order of the learned Magistrate refusing to convict the accused must be treated as an order of acquittal. Ordinarily that may be so but in a case where the proceedings are dropped for want of jurisdiction or maintainability without a decision on merits one way or the other the order cannot be treated as an order of acquittal. This is so became the learned Magistrate does not come to any conclusion of guilt or otherwise on the merits of the matter. He merely directs the proceedings to be dropped because he thinks that the sine qua non for the institution of the complaint is not satisfied and therefore the complaint is not maintainable meaning thereby that he has no jurisdiction to either convict or acquit the accused. Take a case where at the initial stage the Court frames a charge because in its opinion a prima facie case is made out. After the evidence is recorded; on the accused entering a plea of not guilty the Magistrate comes to the conclusion that the offence if any was committed outside the State. In such a case he would have no jurisdiction either to acquit or convict the accused and therefore the only alternative left to him would be to direct that so far as the proceedings before him are concerned they shall stand dropped. The Supreme Court had an occasion to consider more or less a similar situation in Nagraj v. State of Mysore A.I.R. 1964 S. C. 269. That was a case in which the learned Magistrate committed the accused to the Sessions Court for trial for offences under secs. 307 and 326 of the Indian Penal Code. The learned Sessions judge made a reference to the High Court on the ground that the learned Magistrate could not have taken cognizance of the offences without the sanction of the State Government in view of the provisions of secs. 132 and 197 of the Code of Criminal Procedure 1898 Several questions were raised in that case but the one with which we are concerned is dealt with in paragraph 18 by the Supreme Court in the following words:

(3.) In the result the order passed by the learned Sessions Judge dismissing the Revision Application as not maintainable is quashed and the matter will go back to the learned Sessions Judge for disposal in accordance with law. The rule is made absolute accordingly. Application allowed.