K N SRIVASTAVA FOOD INSPECTOR Vs. RAM

JUDGEMENT

(1.) THIS is an appeal by the complainant against the order of acquittal passed by the S. D. M., Lakhimpur Kheri of an offence under section 7/16, Prevention of Food Adulteration Act. The relevant facts are that a complaint was instituted by the appellant in the Court of S. D. M., Kheri for an offence under section 7/16, Prevention of Food Adulteration Act. The complainant examined one witness G. D. Dass and thereafter the Magistrate framed a charge against the respondent. He then passed an order to recall the witness already examined and also for examination of the remaining witnesses on behalf of the complainant. On 20-8-74 the complainant was absent nor any evidence on his behalf was produced. The Magistrate observed that enough opportunity had been given to the appellant to produce the evidence. The case was old and so he ordered closing of the prosecution. Thereafter holding that there was no finding to connect the respondent with the offence in question, he passed an order of acquittal. In grounds of appeal it was alleged that being a warrant case, the Magistrate had no jurisdiction to pass an order of discharge. The offence is not compoundable. It was also alleged that it was not correct to say that there was no evidence on record because the evidence recorded under section 252, Cr. P. C. before the charge could be taken into consideration by the Magistrate. It appears that there was some misunderstanding in the mind of the appellant while drafting the appeal. He thought that it was the order of discharge u/s 259 Cr. P. C. and accordingly the grounds were framed taking into consideration the phraseology of Section 259. Cr. P. C. The order in question was, however, an order of acquittal and not of discharge. That is why an appeal has been preferred because no appeal lies against an order of discharge. The learned counsel for the appellant, however, contends that the question is a legal one and so even though specific grounds were not taken, the same can be considered by the High Court. It is contended that the Magistrate had no jurisdiction to pass an order of acquittal merely on the ground that the complainant and his witness failed to appear on the date fixed for further cross-examination and re-examination of the remaining witnesses. It was the duty of the trial court itself to procure the attendance of this witness and it was only thereafter that the order could be passed on merits. Learned counsel for the accused respondent on the other hand contends that it was not the duty of the trial court to procure the attendance of the witness when he had undertaken to do that, and that as the appellant had failed to produce the witnesses he could not take the stand of this lapse on the part of the Magistrate. I have gone through the file but I do not find that there was any undertaking by the appellant to produce the witnesses himself. The question then is whether it was the legal duty of the Magistrate to procure the attendance of the witnesses of the complainant-appellant or whether it was the duty of the complainant himself to do so. 1 need not enter into the question in detail. The matter is concluded by a view of his court in Salik Singh v. Ram Prasad and others (1970 A. W. R. 767), following Chiranji Lal v. Ram Swarup(1942 A. W. R. 336.): Sagiruddin v. Mst. Munni (1949 A. W. R. 294.), Mohd. Qasim v. Gokul Tewari (1962 A. W. R. 658.) and N. R. Murthy v. P. D. Narayan (A. I. R. 1957 Mysore 18.). Various rulings on this point were considered and it was held that in a warrant case duty lies on the Magistrate to secure the attendance of the complainant and his witnesses for further cross-examination, and if no such action is taken by him, he is not right in dismissing the complaint and acquitting the accused. 1 here is also a recent ruling of the Kerala High Court in K. Madusudanan Namboodiri v. Unni Nair and others (1975 Cri. L. J. 751.) to the same effect. So the order passed by the Magistrate cannot be sustained at all and deserves to be set aside. Before parting with the case I may observe that the Magistrate should keep in consideration the provisions of law. There was nothing vague on this point. The matter was very clear. A little lapse on his part has led to a delay in the disposal of the case. He has delayed the case for four years more. Now he will take steps to see that the case is decided on the very first date. In the result the appeal is allowed. The order of acquittal is set aside. The case is remanded back to the trial court for proceeding in accordance with the law and on the observations made above, a he record may be sent back to the lower court without any delay.