STATE OF MAHARASHTRA Vs. KISHORE ANNAJI CHAWADE

JUDGEMENT

(1.) IN this appeal by the State against the order dated 17-9-1985, acquitting the respondent, two questions, arise : firstly, whether the learned Chief Judicial Magistrate was justified in acquitting the respondent under S. 256 (1), Criminal Procedure Code, and secondly, whether the appeal by the State is competent under S. 378 (1), Criminal Procedure Code. For deciding the first point it is necessary to set out in some detail how the case proceeded in the Court below.

(2.) SHRI B. V. Pande, Inspector the Food and Drugs Administration, filed a complaint against the respondent under Section 9 of the Prevention of Food Adulteration Act, contending in the Court of the Chief Judicial Magistrate, Wardha, on 4-5-1984, that the respondent had sold adulterated linseed oil. On the first two dates, the respondent was absent and there was no appearance for the complainant. On 7-10-1984, the Assistant Public Prosecutor appeared for the State and the respondent was present. On 29-11-1984, 4-1-1985, 15-2-1985 and 21-4-1985, both the Assistant Public Prosecutor and the respondent were present. On 21-4-1985, PW 3 A. T. Rahatgaonkar, the Local Health Authority was present, but as the Magistrate was on leave, the case was adjourned. On 16-5-1985, the Presiding Officer was on leave and the respondent was absent but the State was represented by the Assistant Public Prosecutor. On 18-6-1985, an order was made fixing the case for evidence-before-charge on 26-7-1985. On that date, again PW 3 A. T. Rahatgaonkar was present, the State was represented by the Assistant Public Prosecutor and the respondent was also present, but as the Presiding Officer was busy with other older cases, the matter could not be taken up. On 17-9-1985, the Assistant Public Prosecutor, Shri Bajaj and the respondent were present, but Rahatgaonkar was not present. An application was, therefore, filed by the Assistant Public Prosecutor, seeking an adjournment on the ground that Rahatgaonkar was busy with other official work. The Magistrate passed an order on the application (Exhibit 8) to the following effect :-

(3.) SECTION 256 (1) provides that if the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. The proviso to the Section reads as under :-