FAROOQ AHMAD MATOO Vs. STATE

JUDGEMENT

(1.) THIS is a revision against an order of the Municipal Magistrate Srinagar convicting the petitioner under Ss. 162/268 of the Municipal Act and sentencing him to a fine of Rs. 50/ -. The petitioners appeal to the Sessions Judge failed.

(2.) MR . Kharadoori appearing for the petitioner has raised two short points. In the first place he submits that whereas the conviction has been recorded under the provisions of the Municipal Act, the offence charged and examined was under the rules made under the Food Adulteration Act. Secondly he argued that the Sanitary Inspector who filed the complaint was not at all authorized to file the complaint and therefore the Magistrate had no jurisdiction to take cognizance of the offence on the basis of a complaint by a person who was incompetent to file the complaint. In this connexion my attention has been drawn to S. 267 of the Act which runs thus : "Unless otherwise expressly provided, no court shall take cognizance of any offence punishable under this Act or any rule or bye -law thereunder, except on the complaint of, or upon information received from the Executive Officer or some person authorized by him in this behalf, or the Medical Officer of Health in respect of offences under.................. Explanation: The Executive Officer may authorize any person to make complaints or give information without previous reference to him either generally in regard to all offences against this Act and the rules or bye -laws thereunder or particularly in regard only to specified offences of a specified class. The person authorized may be authorized by office, if he is Medical Officer of Health, or Municipal Engineer or Secretary of the Council or Officer -in -charge of a Police Station; in other cases the authority must be personal. The authority must in all cases be in writing and may at any time be cancelled by the Executive Officer."

(3.) A perusal of this section clearly shows that any offence under this Act can be taken cognizance of by the Magistrate only on a complaint made by the Executive Officer", the Medical Officer of Health or any person authorised by the E. O. in this behalf. Mr. Karim appearing on the other side has produced a Notification dated 5 -2 -69 by which the Administrator had authorised the present complainant the Ward Officer to launch prosecutions. This order of Administrator however is not a sufficient compliance of S. 267 which has mentioned three categories of persons who alone can file a complaint regarding offences committed under the Municipal Act. It was not within the province of the Administrator to have delegated the authority to launch prosecutions to any person other than those in S. 267 (Supra). In these circumstances the complaint ought to have been filed either by the Administrator himself acting as an Executive Officer or by the Executive Officer who was appointed by the Administrator after the Municipality was taken over by the Government. Therefore the entire proceedings before the court below were without jurisdiction. It is not necessary for me to go into the other points in the view that I take. For these reasons the application is allowed, the conviction and sentence passed against the petitioner are set aside and he is acquitted of the charges framed against him. Fine if paid shall be refunded.