SHAIKH AHMED HUSSAIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) -THE petitioners in this case are residents of Nasik City. Petitioner No. 1 is a member and shareholder of the Nashik Krishi Utpanna Bazar Samit and possess a licence for trading in animals. Petitioner No. 2 is a permanent resident of village Waygaon, Taluka Chandwad. He state that his profession is an agriculturist having his lands in Waygaon village. It is alleged that on 17th August, 1980, the petitioners had purchased six bullocks from the Panchvati Market Yards and that the police apprehended them on the road on suspicion that they were taking the bullocks for purposes of slaughtering them. The petitioners state that they explained to the police authorities that the bullocks have been purchased for agricultural purposes but that the police refused to accept their contention. The animals were seized under a panchnama and the police also recorded the statements of certain persons who were present there. The petitioners were thereafter charge-sheeted under the provisions of section 5 and 11 of the Maharashtra Animal Preservation Act, 1976 before the Judicial Magistrate, First Class, Nasik. Thereafter, the petitioners preferred an application before the learned Magistrate under the provisions of section 482 of Code of Criminal Procedure praying for discharge on the ground that no case has been made out against them. The learned Magistrate by his order dated 26-10-1988 rejected the application, and to my mind rightly so, the principal ground being that the inherent powers exercisable under section 482 of the Code of Criminal Procedure are powers that can be exercised only by a the High Court and not by the High Court and not by the Trial Court and the learned Magistrate further held that he had no power for discharge of the accused in te present case as he was required to follow a summary procedure which did not make provision for discharge of the accused. As far as this aspect of the case is concerned, the learned Magistrate was not wholly justified because it is open to the trial Magistrate to exercise powers under section 258 of the Code of Criminal Procedure. In summary proceedings where the accused claims to be tried, the procedure specified in the Code, under Chapter XX, for the the trial of summons cases is required to be followed. It is true that Chapter XX does not make any provision for discharge of the accused but section 258 very clearly specifies that at any stage of the trial, the Magistrate may stop the proceedings. It is implicit that if it is brought to the notice of the Magistrate at any stage of the proceedings, that there is no evidence or that the charge is groudless, he may forthwith stop the proceedings and acquit the accused. To this extent, therefore, the learned Magistrate was not justified in having rejected the application filed by the petitioners on the ground that no powers were vested in him.

(2.) THE petitioners thereafter carried the case in revision before the Sessions Court at Nasik. The learned Additional Sessions Judge by his order dated 21-2-1989 rejected the revision application filed by the petitioners principally on the ground that there was no power vested in the learned Magistrate to stop the proceedings. The learned Additional Sessions Judge had held, and erroneously to my mind, that the accused were facing trial under section 260 of the Code of Criminal Procedure, which does not provide for discharge or stoppage but the learned Judge simultaneously overlooked the fact that section 262 of Chapter XX provides that the procedure in summary trial cases shall be as enunciated in Chapter XX of the Code viz. , the procedure prescribed for the trial of summons cases. The learned Judge has further observed that there is prima facie material before the Court for purposes of concluding that the evidence does make out a charge against the accused and, therefore, that they should stand trial.

(3.) MR. Shaikh, learned advocate appering on behalf of the petitioners has drawn my attention to the provisions of section 5 and 11 of the Act and pointed out that on the material placed before the Court, there is no ground whatsoever for the trial Court to proceed against the present petitioners and that consequently, the criminal proceedings are liable to be quashed.