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Madhya Pradesh High Court · body

2010 DIGILAW 519 (MP)

Banwarilal v. Sachin Logaria

2010-05-06

S.K.SETH

body2010
ORDER 1. After having lost in the Criminal Revision before the Sessions Court, petitioner has filed this petition u/s. 482 of the CrPC 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 gms. 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 conform 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 u/s. 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 has come up in this petition u/s. 482 of the CrPC. 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. Karnik at length. 7. Having lost there, the petitioner has come up in this petition u/s. 482 of the CrPC. 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. Karnik 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 an10unting 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 2005 (I) MPWN 40 = (2004) 7 SCC 338 , he submitted that had it been a warrant trial, 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 Karnik submitted that there is no substance and merit in this petition u/s. 482 of the CrPC inasmuch as only a summons has been issued to the petitioner to appear before the Chief Judicial Magistrate and he can raise the objection 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 (hereinafter 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 along with 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 signature of Manager, Legal, instead of furnishing the information u/s. 17 (2), Memorandum and Article 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, where 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 requisition 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 u/s. 16 (1) (a) (i) read with section 7 (i) of the Act filed by the Food Inspector is deemed to be a complaint instituted u/s. 13 (2) of the Act. Thus, it is c1earthat 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. 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 submission 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 placed by Shri Bagadiya on an unreported decision of this Court in the matter of Smt. Samita Jatia v. 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. Samita Jatia was an employee of the company. Moreover, I am not concerned with the prosecution or non-prosecution of Smt. Samita 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. Samita Jatia was an employee of the company. Moreover, I am not concerned with the prosecution or non-prosecution of Smt. Samita Jatia in the present case. 15. Section 482 of the CrPC does not give any increased power to the High Court nor does it give any new powers. It is well settled that the powers u/s. 482 of the CrPC should be exercised only in exceptional cases. See AIR 1977 SC 2229 . The power u/s. 482 of the CrPC 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 an abuse of any power of 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 u/s. 482 of CrPC 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.