BHAWANI DASS Vs. NAGAR SWASTHYA ADHIKARI

JUDGEMENT

(1.) THIS is a reference by the Civil and Sessions Judge Agra recommending that the case pending against Bhawani Dass and Nestless Products India in the court of a Magistrate 1st Class, Agra be directed to be dropped so far as Bhawani Dass is concerned.

(2.) THE facts which have led up to this reference are as follows. On 3 -1 -1964 a complaint was filed by the Najjar Swasthya Adhikari, Nagar Mahapalika Agra, against Bhawani I?ass for his prosecution Under Section 7/16 of the Prevention of Food Adulteration Act in respect of a sample of condensed milk full cream manufactured by Nestles Products India and collected by the Nagar Swasthya Adhikari from the shop of Bhawani Dass. On 7 -9 -1964 another complaint was filed by the said Nagar Swasthya Adhikari against Bhawani Dass and Nestles Products India Under Section 7/16 of the Prevention of Food Adulteration Act in respect of the same sample. After the second complaint had been filed, the Magistrate ordered that since a fresh complaint had been filed in respect of the same matter the first complaint be consigned, and the documentary evidence filed in the case started on that complaint be attached to the subsequent complaint. When the case on the basis of the second complaint proceeded, an objection was taken on behalf of Bhawani Dass that his prosecution was barred by Section 403 Code of Criminal Procedure. This objection was rejected by the Magistrate by his order dated 25 -5 -1965. Bhawani Dass filed a revision against the said order in the court of session and the learned Civil and Sessions Judge, Agra has thereupon made the reference which is before me.

(3.) THE withdrawal of a case within the meaning of Section 248 Code of Criminal Procedure must be a conscious and deliberate act of the complainant and it is mot possible to spell out a withdrawal from a mere order of the court that the case be consigned. The record does not show that the complainant made any request for a withdrawal or even for a consignment of the case. I am not for the present concerned with the question whether the order directing that the first complaint be consigned was a proper order or not. I have only to see whether that order was an order of the nature contemplated by Section 248 Code of Criminal Procedure. Since the record does not indicate that the order consigning the case was based on any prayer to that effect made by the complainant, it does not appear to me to be possible to hold that there was any withdrawal Under Section 248 Code of Criminal Procedure.