Friday 2 December 2016

Whether court can discharge accused in summons case?

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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                PRESENT:

                   MR. JUSTICE B.SUDHEENDRA KUMAR

          10TH DAY OF MARCH 2016

                                    Crl.Rev.Pet.No. 27 of 2012 

      ALIYAR, 
Vs

         THE FOOD INSPECTOR
          Citation: 2016 CRLJ4255 Kerala

      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.

    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

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

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

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



      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

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

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

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 sub-

      category or division consisting of "summons cases

      instituted otherwise than upon complaints". That

      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

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 a petition.

      In the result, this revision petition stands dismissed.



       I make it clear that the dismissal of this revision

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



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