DHIAN SINGH Vs. MUNICIPAL BOARD

JUDGEMENT

(1.) IN this application for review Under Section 561 -A, Code of Criminal Procedure, the only contention raised is that the appeal filed by the Municipal Board Under Section 417(3) Code of Criminal Procedure was not competent inasmuch as the complainant was not the Municipal Board but the Food Inspector. This point was not raised at all on behalf of the present Applicant Dhian Singh at the time of the hearing of the appeal of the Municipal Board. The judgment of this Court, dated 18 -4 -1966 (reported in, 1966 AWR 662), shows that the com plaint was treated as a complaint purporting to be filed by the Food Inspector, Saharanpur, on behalf of the Municipal Board. In other words, the case proceeded on the assumption that the complainant was the Municipal Board and that the Municipal Board was the Appellant Under Section 417(3) Code of Criminal Procedure. However, as a result of the application Under Section 561 -A Code of Criminal Procedure a notice was issued to the Municipal Board of Saharanpur. In reply to the affidavit filed by Dhian Singh in this Court, stating in paragraph 2 of the affidavit that the Food Inspector of the Municipal Board was the complainant, the counter affidavit, sworn by the Food Inspector, Sri Kedarnath, through whom the Municipal Board was acting in the trial court, states that the Municipal Board, Saharanpur, is the complainant and that Kedarnath Sharma had only signed the complaint as its authorised Food Inspector. The complaint was also examined by me. It is headed: Municipal Board Saharanpur v. S. Dhian Singh. In other words, the complaint is, prima facie, by the Municipal Board, Saharanpur. The officer signing the complaint is Kedarnath, shown as the Food Inspector of the Municipal Board of Saharanpur. The Board could certainly authorise, by virtue of Section 20 of the Prevention of Food Adulteration Act, its Food Inspector to institute a prosecution. Such a prosecution would be deemed to be a prosecution by the Board itself. There is no rejoinder affidavit filed in reply to the assertion made by Kedarnath Sharma, Food Inspector, showing that the complainant was the Municipal Board. The affidavit filed by Dhian Singh in support of his application Under Section 561 -A Code of Criminal Procedure does not allege that Sri Kedarnath was not duly authorised by the Municipal Board to institute a prosecution.

(2.) RELIANCE was placed on State v. P.P. Johar, 1965 AWR 823 where it was held by me that a special leave application Under Section 417(3) Code of Criminal Procedure could not be filed by "the State through the Nagar Mahapalika" when the actual complainant was the Food Inspector of the Nagar Mahapalika, Varanasi. The facts of that case are distinguishable. In that case the Food Inspector was the actual complainant and did not purport to file the complaint on behalf of the Municipal Board. In the present case, the prosecutor is the Municipal Board moving through the Food Inspector. It was observed by me in P.P. Johar's case (supra):