Crl.Rev.Pet.No.27 of 2012 (CC.901/2008 of JFCM-III, Perinthalmanna)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 10TH DAY OF MARCH 2016/20TH PHALGUNA, 1937 Crl.Rev.Pet.No. 27 of 2012 () ------------------------------ (CC.901/2008 OF JFCM-III, PERINTHALMANNA) REVISION PETITIONERS: ----------------------------------- 1. ALIYAR, KAVATTU HOUSE, PANDIKKAPPU POST, ERIMBUPALAM ADIMALI. 2. M/S.TAMAR INDIA SPICES PRIVATE LIMITED, TAMAR GARDEN, VARAPPETTY POST, KOTHAMANGALAM REPRESENTED BY ITS DIRECTOR, HAMEED M.K. BY ADV. SRI.SUNNY MATHEW RESPONDENTS: --------------------------- 1. THE FOOD INSPECTOR MALAPPURAM CIRCLE. 2. P.K.ABDUL MAJEED S/O.KUNJIMUHAMMED, POOTHAMKODAN HOUSE, EDAPETTA P.O. R2 BY ADV. SRI.BABU S. NAIR R1 BY PUBLIC PROSECUTOR, SHRI.V.S.SREEJITH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.R.** ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.R.P. No.27 of 2012 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of March 2016 ## O R D E R The revision petitioners are accused Nos.2 and 3 in C.C. No.901 of 2008 on the files of the Court of the Judicial Magistrate of First Class - I1, Perinthalmanna. 2. The revision petitioners were indicted for the offence under Section 16(1)(a)(i) read with Sections 2(ia) (m) and 7(i) of the Prevention of Food Adulteration Act, 1954 (for short “the Act”) and Appendix B Item A.05.17.01 of Prevention of Food Adulteration Rules, 1955. Crl.R.P.27/2012 : 2 : 3. The prosecution allegation is that on 14.5.2008 at 12 noon, the Food Inspector, Malappuram Circle, purchased six sealed packets of black pepper powder of 50 gram each from the shop of the first accused. The second accused was the Production Supervisor of the Manufacturer, namely, the third accused. After sampling as per rules, one of the samples was sent for analysis to the Public Analyst. The Public Analyst submitted report stating that the sample did not conform to the standard prescribed for the food item and therefore, the same was adulterated. 4. The revision petitioners appeared before the court below in response to the summons issued from the court below and pleaded not guilty to the particulars of offence read over and explained to them. Thereafter, PW1 and PW2 were examined. At that stage, the revision petitioners filed C.M.P. No.4335 of 2011 before the court under Section 245 of the Code praying for discharge stating that Crl.R.P.27/2012 **==> picture [29 x 13] intentionally omitted <==** the notice under Section 13(2) of the Act was issued to the revision petitioners only after the shelf life period of the food item. The court below dismissed the said petition. Aggrieved by the said order, this revision petition had been filed. ## 5. Heard both sides. 6. The above case arose out of a private complaint filed by the first respondent herein. It is clear from the proceedings of the court below that the above case was being tried summarily by the court below as provided under Section 16A of the Act. The learned Magistrate also mentioned in the order impugned that the case was being tried following the procedure for summons case. Section 245 of the Code is applicable only in respect of the trial of warrant-cases instituted, otherwise than on police report. Since the present case is not a warrant-case instituted, otherwise than on a police report, Section 245 of the Code has no application to the case in hand as correctly held by Crl.R.P.27/2012 : 4 : the court below. 7. The learned counsel for the revision petitioners has argued that since the first respondent herein, who is the complainant before the court below, was a Government servant, the court below ought to have stopped the proceedings and aquitted the revision petitioners under Section 258 of the Code, rather than adhering to technicalities. A bare reading of Section 258 of the Code would make it clear that the said section is applicable only when the case is a summons-case instituted otherwise than upon complaint. Thus, it is clear from the provisions of Section 258 of the Code that the said section is applicable when the case is a summons-case based on a police report. The Apex Court in John Thomas v. K. Jagadeesan (AIR 2001 SC 2651: 2001 KHC 648) held that Section 258 has no application to cases instituted upon complaint. Since the present case is a case instituted upon a complaint, Section 258 of the Code has no application to the case on Crl.R.P.27/2012 : 5 : hand and consequently, the argument in this regard advanced by the learned counsel for the revision petitioners cannot be accepted. 8. In this case, the revision petitioners had already entered appearance before the court below and the trial was commenced. The court below found that once the accused appears before the court, there is no provision for the magistrate to discharge the accused when the case is tried following the procedure for summons case. 9. In Adalat Prasad v. Rooplal Jindal [(2004) 7 SCC 338], the Apex court held in paragraph No.15 as follows:- “It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provisions of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an Crl.R.P.27/2012 : 6 : aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of the Code.” 10. In Urmila Devi v. Yudhvir Singh [(2013) 15 SCC 624], the Apex Court held that _the order_ issued by the Magistrate deciding to summon an accused in exercise of his power under Sections 200 to 204 Cr.P.C. would be an order of intermediatory or quasi-final in nature and not interlocutory in nature and hence the revisional jurisdiction provided under Section 397 of the Code can be worked out by the aggrieved accused. It was further held by the Apex court in Urmiladevi (supra) that such an order of a Magistrate deciding to summon an accused in exercise of his power under Sections 200 to 204 Cr.P.C., can always be Crl.R.P.27/2012 : 7 : subject-matter of challenge under the inherent jurisdiction of the High Court under Section 482 Cr.P.C. 11. It is clear from the above ratio laid down by the Apex Court that in a summons-case, the magistrate has no jurisdiction to discharge the accused after his appearance before the court in response to the summons issued by the court in exercise of the power under Section 204 Cr.P.C.. The remedy available to the aggrieved accused in such a situation is to challenge the order of the Magistrate deciding to summon the accused in exercise of his power under Section 204 Cr.P.C. by approaching the High Court or the Sessions Court invoking revisional jurisdiction under Section 397 of the Code or approaching the High Court invoking the inherent jurisdiction under section 482 of the Code. 12. Now the question to be considered is as to whether any remedy is available to the aggrieved accused in such a situation in a summons-case instituted upon a Crl.R.P.27/2012 : 8 : police report. Section 258 of the Code is relevant at this juncture, which is extracted hereunder:- “258. **Power to stop proceedings in certain cases:** - In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge”. It is clear from a bare reading of Section 258 of the Code that in a summons-case instituted otherwise than upon a complaint the magistrate can stop the proceedings at any stage in appropriate cases. If the stoppage of proceedings Crl.R.P.27/2012 : 9 : is made after the recording of the evidence of the principal witnesses, the section permits the court to pronounce the judgement of acquittal prematurely and in any other case, the section permits the court to release the accused and such release shall have the effect of discharge. The Apex Court held in John Thomas(supra) thus:- “Summons cases are generally of two categories: those instituted upon complaints and those instituted otherwise than upon complaints. The latter category would include cases based on police reports. Section 258 of the Code is intended to cover those cases belonging to one category alone i.e.“summons cases instituted otherwise than upon complaints”. The segment separated at the last part of the section by the words “and in any other case” is only a subcategory or division consisting of “summons cases instituted otherwise than upon complaints”. That Crl.R.P.27/2012 : 10 : sub-category is not intended to cover all summons cases other than those instituted on police report. In fact, Section 258 vivisects only “summons cases instituted otherwise than on complaints” into two divisions. One division consists of cases in which no evidence of material witness was recorded. The section permits the court to acquit the accused prematurely only in those summons cases instituted otherwise than on complaints wherein the evidence of material witnesses was recorded. But the power of court to discharge an accused at midway stage is restricted to those cases instituted otherwise than on complaints wherein no material witness was examined at all.” It is clear from the above decision that summons-cases instituted otherwise than upon complaint would include cases based on police reports. The above discussion would make it clear that the remedy of an aggrieved accused in a Crl.R.P.27/2012 **==> picture [38 x 13] intentionally omitted <==** summons case instituted upon a police report is to approach the court concerned under Section 258 of the Code in appropriate cases. 13. Since the present case is a case instituted upon a complaint, the court below was perfectly correct in holding that since the case was being tried following the procedure for summons case, the court below had no jurisdiction to discharge the revision petitioner after his appearance before the court in response to the summons issued from the court. 14. Having gone through the relevant inputs, I do not find any reason to hold that the order impugned suffers from any infirmity, warranting interference by this Court. I do not propose to express any opinion with regard to the other findings by the court below in this order as the same is not necessary for the disposal of this revision petition. In the result, this revision petition stands dismissed. I make it clear that the dismissal of this revision Crl.R.P.27/2012 : 12 : petition will not take away the right, if any, of the revision petitioners in resorting to other remedies available to them under law. Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/.14.32016_ _// True Copy //_ _PA to Judge_