C.H. Muhammed vs State of Kerala

M.M. Pareed Pillay, J.—Revision Petitioner is the accused in C.C. 2 of 1985 of the Additional Chief Judicial Magistrate''s Court, Teilicherry. He was acquitted by the Additional Chief Judicial Magistrate for the offence under Sections 16(i)(a)(i) read with Sections 7(i) and (iii) and 2(1a)(a) of the Prevention of Food Adulteration Act. He was found guilty u/s 16(i)(a)(ii) for the violation of Rule 50 of the Prevention of Food Adulteration Rules. Suo motu revision was taken by the Sessions Judge, Teilicherry. The learned Sessions Judge set aside the order of acquittal and convicted the accused and directed the Additional Chief Judicial Magistrate to pass appropriate sentence against the accused after hearing him with regard to the sentence.

The chief contention of the revision Petitioner is that the Sessions Judge was not justified in converting the acquittal into a conviction in the suo motu revision. It is contended that the conviction cannot be sustained in view of the specific provisions u/s 401(3) of the Code of Criminal Procedure.

By virtue of Section 399 Code of Criminal Procedure Sessions Judge is entitled to exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401. Section 401(1) provides that in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Sessions by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392. Section 399(2) makes the position clear that where any proceeding by way of revision is commenced before a Sessions Judge under Sub-section (1), the provisions of Sub-sections (2), (3), (4) and (5) of Section 401 shall so far as may be, apply to such proceeding and references in the said Sub-sections to the High Court shall be construed as references to the Sessions Judge. Thus, it can be seen that Section 401(3) equally applies so far as a Sessions Judge is concerned. The above Sub-section makes it clear that the revisional court whether the High Court or Sessions Court caqget convert a finding of acquittal into one of conviction. It is pertinent to note that the State has not filed any appeal against the acquittal of the revision Petitioner for the offence, under Sections 16(i)(a)(i) read with Sections 7(i) and (iii) and 2(1-a)(a) of the P.F.A. Act. In the suo motu revision taken by the Sessions Judge he cannot obviously convert a finding of acquittal into one of conviction in view of the specific interdict in Section 401(3) Code of Criminal Procedure. That being the position, the order of the Sessions Judge cannot be sustained.

The order of the Session Judge stands set side. Crl.R.P. stands allowed