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Regular Criminal Case No.632 of 2002

State through Food Inspector
Vs.
Laxman Maroti Akolkar & others

.ORDER BELOW EXH.44.

Read application and Say Exh.49 of the complainant.

2] Perused documents and complaint Exh.01.

3] I have heard learned Advocate Mr.S.A.Atre for the

applicants/accused. In the course of arguments, learned Advocate for the

applicants/accused vehemently submitted that, it is an admitted fact in view of

section 17(2) of the Prevention of Food Adulteration Act, 1954 (hereinafter

referred to as “the Act” for the sake of brevity) that there cannot be a

prosecution against the person than in whose name the Company or the Firm

is made nomination. Here, in this case, specific nomination is in the name of

Mr.Shyam Sundar. Mr.Shyam Sundar is appeared in the proceeding, so

prosecution cannot be proceeded against accused Nos.5, 6 and 7. The

complainant contended in the say to the application that, the accused have

prepared back dated documents and the same are suspicious. This fact cannot

be accepted, so prayed to discharge the applicants/accused.

4] Mr.H.Y.Mendki vehemently submitted that the application is u/s

245(2) of the Code of Criminal Procedure. Admittedly, the applicants are

relying on the documents. Those documents cannot be read unless proved in

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the evidence. The documents on which applicants/accused are relying are the

copies not the original documents, so prayed to reject application.

5] Prior to touching to the merits of the application, it requires to

mention here that, Food Inspector Mr.S.V.Khairnar, Food & Drug

Administration, Jalgaon filed the complaint against eight accused persons

which includes the allegations against accused Nos.1 to 3 in regard to storing

for sale and sale of adulterated Basmati Rice and accused Nos.5 to 8 are the

suppliers of an adulterated food article Rice. Accused Nos.5 to 7 are the

directors of the Company (accused No.8). Now, by this application, accused

Nos.5 to 7 are saying that there is nomination in the name of Mr.Shyam

Sundar, so there is protection u/s 17(2) of the Act to the directors and nominee

requires to be considered. So, they are entitle to get discharge.

6] This prosecution is instituted otherwise than on police report. In

the Code of Criminal Procedure in Chapter­XIX, “Trial of warrant cases by

Magistrates” is prescribed. It is containing of two sub­chapters. Sub­chapter

'A' relates to “Cases instituted on a police report” and 'B' relates to “Cases

instituted otherwise than on police report”. Here, in this case, sub­chapter 'B'

“Cases instituted otherwise than on police report” will apply. Section 244 of

the Code of Criminal Procedure pertains to the procedure of “Evidence for

prosecution”. Thereafter, the circumstances are given vide section 245 of the

Code of Criminal Procedure under which accused shall be discharged. Sub

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section (1) of section 245 of the Code of Criminal Procedure will apply to the

cases upon taking all the evidence referred u/s 244 of the Code of Criminal

Procedure. Sub section (2) of section 245 of the Code of Criminal Procedure

empowers the accused to claim discharge even without recording evidence u/s

244 of the Code of Criminal Procedure. The application under consideration

is u/s 245 sub section (2) of the Code. Here, in this case, no evidence vide

section 244 of the Code of Criminal Procedure is led by the prosecution for

framing charge. While deciding application u/s 245 sub section (2) of the

Code of Criminal Procedure, court requires to consider entire material

including documents by making its examination, if thinks necessary and after

giving an opportunity to both parties of being heard if the Magistrate comes to

conclusion that the charge is groundless then and then only the order of

discharge would be passed. Admittedly, in such a cases, no evidence is led by

the parties to the proceeding, no statement on oath is on record, the court has

to peruse the material available and court has to decide either the charge is

groundless or to state that at this juncture the court cannot say firmly that the

charge is groundless unless the compliance of section 244 of the Code of

Criminal Procedure.

7] Admittedly, here, in this case, the dispute is short, in relation to

section 17(2) of the Act. The complaint is filed on 29­10­2002. Process

issuance order is of the same date. These applicants/accused appeared in the

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proceeding long back and this application is made on 09­03­2012 i.e. after 10

years approximately. It is true, that the question of delay cannot be basis for

rejection of the application, but this circumstance requires to consider for the

purpose of appreciation of the contention, though there is explanation or non

explanation. The applicants are relying on certain copies of documents placed

on record along with list Exh.45. At Sr.No.1 of Exh.45 there is photocopy of

the resolution dated 22­02­2000 of the Company. At Sr.No.2 of Exh.45, there

is photocopy of Form No.VIII (under Rule 12­B) nomination of persons by a

Company. It is dated 22­02­2000. The complainant is relying on the

documents annexed with the say. On 08­03­2001 letter was sent to the

Company accused No.8. By this letter, this Company was asked to provide

information about nomination u/s 17(2) of the Act, if applicable. In response

to this letter, Mr.Manoj Satia, the Vice President of the Company accused No.

8 provided information to the complainant and name of the directors are

informed. Relying on it, the complaint is filed against Company and directors.

Copy of the documents are placed on record. Now, by this application, the

present applicants are intending to contradict the letters on which complainant

has relied and are intending to make out counter case that there is nomination

u/s 17(2) of the Act relying on some copies of the documents. For the

appreciation of these things, there needs trial of the proceeding. The

documents on which applicants are relying cannot be accepted blanketly

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without its proof. While passing order of issuance of process, this court has

considered all these things and thereafter issued process against present

applicants. If in such situation, the order u/s 245(2) of the Code of Criminal

Procedure to discharge the applicants if passed it would amount to reviewing

of the process issued by this court, which is not permissible.

8] In this regard, I placed reliance on the Judgment in between

Luis de Piedade Lobo Vs. Mahadev Vishwanath Parulekar & Anr. 1984

CRI L.J. 513, wherein the Hon'ble Bombay High Court bench at Panji in para

No.5 held that,

It is no doubt true that Section 244, Cr.P.C. makes it incumbent upon

the Magistrate to take all such evidence as is produced in support of the
prosecution at the stage of the inquiry. It is also true that sub­section
(1) of Section 245, requires, for an order of discharge be made, the
taking of the evidence referred to in Section 244. Therefore, it may
appear that the submissions of Mr.Usgaoncar are correct. And it is so
to some extent. In fact, sub­section (2) of Section 245, specifically
provides that nothing in the section i.e. in sub­section (1), shall be
deemed to prevent a Magistrate from discharging the accused at any
previous stage of the case if, for reasons to be recorded by such
Magistrate, he considers the charge to be groundless. The expression
“at any previous stage of the case”, occurring in sub­section (2) of
Section 245, unmistakenly and undoubtedly shows that even before
recording of the evidence referred to in Section 244, the Magistrate can
discharge the accused if he considers, for reasons to be recorded, the
charge to be groundless. In other words, the provision of sub­section
(2) of Section 245 embodies an exception to the general rule laid down

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in Sections 244 and 245(1), Cr.P.C.

The Hon'ble High Court further held in the same paragraph that,

“It only clarifies that, in the event process was issued, such power of
the Magistrate, generally as a rule, is not unfettered, since Section 204,
Cr.P.C., prescribes that process may be issued by the Magistrate only if
he is of the opinion that there is sufficient ground for proceeding. This,
in my view, is generally correct, for if the Magistrate himself was of the
opinion that there were grounds for proceeding, it follows that he was
satisfied, at the stage of issuing process, that the complaint was not
groundless. Consequently, it follows also that some kind of additional
evidence would be required to make him change his prior opinion that
there were grounds for issuing the process and that the complaint was
not groundless. This is, as I already observed, generally correct. But a
case may arise where the Magistrate per incuriam issues process and in
such a case, the Magistrate undoubtedly can exercise the powers,
conferred by Section 245(2), Cr.P.C., without recording any evidence”.

So, in the given set of circumstances, I am not at all satisfied on

hearing learned Advocate for the applicants/accused, on perusal of the copies

of documents placed on record, on perusal of the recitals of the complaint and

documents placed on record by the complainant, that the charge is groundless.

So, the application is without merits appears to be filed to protract the trial of

old proceeding. Hence, application is rejected.

Date : 30­07­2013. ( K.R.Chaudhari )

Place : Jalgaon., Chief Judicial Magistrate, Jalgaon.,

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I affirm that the contents of this P.D.F. file order are

same, word to word, as per the original order.

Name of the Stenographer :­ Mahesh Tryambak Kolhe.

Name of the Court :­ Chief Judicial Magistrate, Court Jalgaon.

Date of order :­ 30­07­2013.

Order signed by the

Presiding officer on :­ 30­07­2013.

Order uploaded on :­ 30­07­2013.

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