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2009 DIGILAW 607 (MP)

Banwari Lal v. Sachin Logaria

2009-05-06

S.K.SETH

body2009
JUDGMENT : S.K. Seth, J.: - After having lost in the Crimi­nal Revision before the Sessions Court, peti­tioner has filed this petition under Section 482 of the Cr. P.C. for setting aside the order dated 11.8.2008 passed by Chief Judicial Magistrate, Indore in Criminal Complaint Case No. 19742/2008. Facts leading to the present petition, in short, are as under. 2. The petitioner is one of the Directors of "Hardcastle Restaurants Private Limited." The said company is engaged in the business of op­erating quick service restaurants under the brand name "McDonald's". One of the outlets of such restaurants is located in "Treasure Island", M.G. Road, Indore, where the fast food articles like burgers, milkshake, soft serve (ice-cream) are sold. 3. On 18.11.2006, the Food Inspector (Re­spondent No. 1 herein) visited the restaurant and after disclosing identity, purchased 100 grams of Vanilla ice-cream. Samples were properly sealed and one of them was sent for analysis to the State Food Laboratory, Bhopal. On analy­sis, the sample did not confirm to the standard laid down under the provisions of Prevention of Food Adulteration Act, 1954 (hereinafter re­ferred to as "the Act" for short). 4. Hence, a complaint in writing was made to the Chief Judicial Magistrate, Indore on 7.10.2008. In the said complaint, the petitioner is shown as one of the accused persons. 5. On the said complaint, learned Chief Ju­dicial Magistrate, Indore has taken cognizance of the offence under Section 16(1) (a) read with Section 7,(i) of the Act and issued summons to the accused persons including the petitioner by order dated 11.8.2008. Said order was, chal­lenged by the petitioner along with two other persons in Criminal Revision before the Sessions Judge, Indore, who by order dated 29.9.2009 dismissed the revision on the ground that mere taking of cognizance does not take away the right of the petitioner to raise objection at appropri­ate stage. Having lost there, the petitioner had come up in this petition under Section 482 of the Cr.P.C. before this Court with a prayer to invoke inherent jurisdiction to set aside the or­der dated 11.8.2008. 6. We have heard Shri Ajay Bagadiya and Shri C.R. Kamik at length. 7. Having lost there, the petitioner had come up in this petition under Section 482 of the Cr.P.C. before this Court with a prayer to invoke inherent jurisdiction to set aside the or­der dated 11.8.2008. 6. We have heard Shri Ajay Bagadiya and Shri C.R. Kamik at length. 7. Shri Bagadiya referring to Section 17 of the Act submitted that in absence of any specific allegation in the complaint that the appli­cant was in-charge of affairs of the company, learned Chief Judicial Magistrate committed an illegality amounting to miscarriage of justice while issuing summons to the applicant. This petition has been filed to prevent further mis­carriage of justice. It was further submitted by him that the offences punishable under the pro­visions of the Act are summary trials, therefore, once a process has been issued, the applicant cannot go back to the trial Court and argue that no offence has been committed by him. In view of the decision of the Supreme Court in the case of Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338 he submit­ted that had it been warrant trica, the petitioner would have got a chance at the time of framing of the charge to state that no offence is made out against him, but in a summary trial, no such chance is available to the petitioner. 8. On the other hand, Shri Kamik submitted that there is no substances and merit in this pe­tition under Section 482 of the Cr.P.C. inasmuch as only a summons has been issued to the peti­tioner to appear before the Chief Judicial Mag­istrate and he can raise all the objections in his defence before the Court at appropriate stage. 9. Section 17 of the Act deals with the of­fences committed by the companies and it reads as under: "17. 9. Section 17 of the Act deals with the of­fences committed by the companies and it reads as under: "17. Offences by companies - (1) Where an offence under this Act has been commit­ted by a company: (a) (i) the person, if any, who has been nominated under sub-section (2) to be in-charge of, and responsible to, the company for the conduct of the business of the company (hereafter in his section referred to as the persons responsible), or (ii) where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and (b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was com­mitted without his knowledge and that he exercised all due diligence to prevent the commission of such offence." 10. From the documents filed alongwith the present petition, it appears that the information regarding nomination was sought by the Food Inspector and in reply dated 3.10.2007 under the signatures of Manager, legal, instead of fur­nishing the information under Section 17(2), Memorandum and Articles of Association of the company were furnished. Prima facie, this leads to an inference that there was no nomination of any particular person, therefore, Clause (ii) of sub-section (1) (a) would come into play and in view of the deeming clause, the petitioner has to face the proceedings. Even otherwise, whether a person is nominated or not is a pure question of fact which can be gone into at the stage of trial and not at the present stage when the trial or proceedings are yet to commence. 11. The word 'complaint' has been defined in Section 2(d) of the Cr.P.C. A careful reading of the said definition reveals that requisites of a complaint are - (i) an oral or in written allega­tion; (ii) some person whether known or un­known has committed an offence; (iii) it must be made to a Magistrate; and (iv) it must be made with the object that he should take ac­tion. It is not necessary for a complainant to set out in a complaint all evidence in his posses­sion. Every minuscule fact need not be pleaded. The administration of criminal law is more matter of substance then a form and should not be allowed to be befogged by hair splitting techni­calities. It is now well settled beyond cavil that a complaint in a criminal case is not to be an en­cyclopedia of all the facts. The complaint with a prayer for punishment of the accused under Section 16(1)(a)(i) read with Section 7(i) of the Act filed by the Food Inspector is deemed to be a complaint instituted under Section 13(2) of the Act. Thus, it is clear that the complaint is one' of the modes recognised to set criminal law in motion. 12. The next step is to take cognizance of the offence. In legal parlance, the act of taking cog­nizance is with reference to the offences and not with reference to the offenders. As such, while taking cognizance, the Magistrate must be deemed to have taken cognizance of the entirety of the case in respect of offences disclosed by the materials filed along with the complaint. For taking cognizance the Court need not under­take an elaborate inquiry nor is it required to pass a detailed reasoned order. See AIR 1995 SC. 784, State of West Bengal v. Mohd. Khalid, AIR 1995 SC. 784. All that is required is that the facts, which prima facie constitute an offence, should be brought to the notice of the Magistrate by the complain­ant. 13. In view of the aforesaid, we find no force in the submissions of Shri Bagadiya to interfere with the order dated 11.8.2008 passed by learned Chief Judicial Magistrate whereby he has taken cognizance of the offence and issued summons for appearance of the accused per­sons. 14. The reliance place by Shri Bagadiya on an unreported decision of this Court in matter of Smt. Smita Jatia a State of M.P. & others, M. Cr. C. No. 3220/2009 decided on 30.9.2009 is of no avail. Facts of the aforesaid case are not similar to the facts of the present case. In the said case, this Court held that Smt. Smita Jatia was an employee of the company. Moreover, I am not concerned with the prosecution or non-prosecution of Smt. Smita Jatia in the present case. 15. Facts of the aforesaid case are not similar to the facts of the present case. In the said case, this Court held that Smt. Smita Jatia was an employee of the company. Moreover, I am not concerned with the prosecution or non-prosecution of Smt. Smita Jatia in the present case. 15. Section 482 of the Cr.P.C. does not give any increased power to the High Court nor does it give any new powers. It is well settled that the power under Section 482 of the Cr.P.C. should be exercised only in exceptional cases. See AIR 1977 SC. 2229 .4 The powers under Section 482 of the Cr.P.C. are to be exercised sparingly and not as an appellate or revisional Court, to pre­vent the abuse of process of any power or to secure the ends of justice. It is equally well settled that the High Court should not interfere under this Section at interlocutory stage unless it in­volves question of law or there is abuse of any power or miscarriage of justice. After losing the revision before the Sessions Judge, it is not open for the petitioner to contend before the High Court that the disposal of the revision has re­sulted in miscarriage of justice. In the consid­ered opinion of this Court, this petition under Section 482 of the Cr.P.C. is nothing but a sec­ond revision in the garb of petition under the said provision. 16. In view of the foregoing discussion, we do not find any merit in this petition. Office is also directed to transmit the copy of this order immediately to Chief Judicial Magistrate, Indore.