RADHA KISHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a reference by the Additional Sessions Judge, Sikar, recommending that the order of the Sub-Divisional Magistrate', Sikar, dated 29-12-1961 stopping proceedings in criminal original case No. 618 of 1961, and the subsequent order dated 2-7-1963 in criminal original case No. 121 of 1962 overruling the accussedpetitioner's plea that the subsequent complaint was barred, be set aside.

(2.) THE material facts giving rise to the reference may bet stated as follows: on 28th of February, 1961, the Food Inspector Sikar purchased some sample of ghee from the respondent Radha Kishan of Khatu, and sent the same to the Public Analyst at Jaipur. The, Public Analyst found that the sample of ghee was adulterated with foreign fat and did not conform to the prescribed standard of purity. A complaint under Section 7 of the prevention of Food Adulteration Act, 1954, was filed against the accused before the Magistrate on 24-10-1961. The Magistrate issifsd summons to enforce the appearance of the accused but the summons was received back with the report that there was no person of the name of the accused in the village. The Magistrate thereupon passed an order on 2912-1961 consigning the case to the record until further orders. Subsequently the complainant having ascertained that the accused was available in the village, filed a fresh complaint on 23-3-1962 against the accused-petitioner. A fresh process was issued against the accused and he appeared in court on 9th May, 1962. Proceedings against the accused started and one witness Inderchand, Food Inspector, was examined on behalf of the prosecution. When the case was still at the stage of recording prosecution evidence, the counsel for the accused submitted an application on 28th June, 1963 praying that as the previous complaint against the accused had been consigned to the record, the accused should have been treated as having been acquitted and the complaint should be dismissed as barred under Section 403, Criminal P. C. The magistrate by his order dated 2nd July, 1963, dismissed the application and directed the proceedings to continue. The accused petitioner went in revision to the Court of Additional Sessions Judge, Sikar. The Additional sessions Judge while disposing of the revision application referred to section 249, Criminal P. C. which provides for the stopping of the proceedings in certain cases and observed that Section 249, Criminal P. C. cannot be applied to a case instituted on a complaint and that the order of the Magistrate stopping proceedings should be treated as an order of acquittal under Section 247, Criminal P. C. The Additional sessions Judge then referred to two cases, namely, Bindra v. Mt. Bhagwanta, AIR 1925 Oudh 44 and Kiran Sarkar v. King Emperor, AIR 1924 Pat 140, which lay down that after an order of acquittal under section 247, Criminal P. C. a fresh complaint is barred. In this view of the law, the Additional Sessions Judge has made the present reference. His recommendation obviously is that the order of the Magistrate dated 29-12-1961 in criminal original case No. 618 of 1961 operated as an order of acquittal and the fresh complaint was barred and that the magistrate acted erroneously in dismissing the accused-petitioner's application dated 28th June, 1963.

(3.) NONE of the parties cared to appear to support or oppose the reference. The reference was placed before me in Chamber on 6th January, 1964. Entertaining some doubt as to the correctness of the view taken by the Additional Sessions judge, f directed the issue of notices to the Government Advocate and the accused. The Deputy Government Advocate has appeared on behalf of the State. The accused has, however, not cared to appear in spite of service of notice on him.