Berhampore Municipality by Executive Authority, the Commissioner vs Adam Hajee Ahmad

Harries, C.J.—This is a reference made by the District Magistrate of Ganjam recommending that an order of acquittal should be set aside and a new trial ordered. It appears that the Berhampur Municipality prosecuted the opposite party for an offence under the Madras Prevention of Adulteration Act, the allegation being that the accused had sold ground-nut oil which was adulterated and not genuine. The case was heard by three Magistrates, Sri Sudarsanam being the President and the other two members being Sri Bharata Sahu and Mr. S.A. Subhan. After the conclusion of the hearing Mr. S.A. Subhan stated that he wanted some days to consider the evidence before he could pronounce judgment, and there is no doubt that after Mr. Subhan had intimated his view he left the Court without further discussing the evidence or coming to any conclusion., It appears that Sri Bharata Sahu also left the Court, and the President (Sri Sudarsanam) alone pronounced an order of acquittal. The latter however alleges that Sri Bharata Sahu was present and concurred in the judgment. The learned District Magistrate is unable to believe this statement.

Even if Sri Bharata Sahu was present and concurred in the judgment, there was not, in my view, a proper order of acquittal in this case. The case was heard by a Bench of three Magistrates, and before any order convicting or acquitting the accused could be properly passed all throe Magistrates would have to discuss the matter and arrive at their conclusion. It might be that by a majority they could convict or acquit, but a discussion between all three is essential before any valid order can be passed. In the present case Mr. Subhan desired to reserve his opinion and consider the evidence, and it is clear that there was no discussion between all three Magistrates before the order was passed. If the view of the learned District Magistrate be right, there was no discussion with the second Magistrate either; but it is unnecessary to arrive at any finding upon this. The fact that Mr. Subhan never participated in the discussions leading to the order is sufficient to vitiate it. That being so, the order of acquittal was invalid and must be set aside.

In the result, therefore, I accept this reference, set aside the order of acquittal and remand the case to be tried by a Magistrate in Berhampur to be nominated by the District Magistrate.