Har Sarup Singh vs State of Haryana

Harmohinder Kaur Sandhu, J.

On 18.8.1982 the Government Food Inspector inspected the premises of the petitioner who was found in possession of 222 pints of Empire Wishky for public sale. Three pints of this wishky were purchased for analysis and one sample was sent to the Public Analyst. The Public Analyst Haryana, Chandigarh issued a certificate to the effect that sample contained alcoholic strength 72.52o p. against the lable declaration of 75o p. A complaint was thus instituted against the petitioner on 29.9.1984 under Section 16(1) of the Prevention of Food Adulteration Act read with Section 7 of the said Act. The complaint remained pending against the petitioner and respondents No. 2 and 3 till 17.2.1988 then it was dismissed for nonappearance of the complainant and the accused were acquitted.

The Government Food Inspector filed a second complaint on the same facts on 19.2.1988 in which the petitioners were summoned. The petitioners assailed the institution of second complaint on the same facts. Sub Divisional Judicial Magistrate, Gohana vide his order date 23.1.1992 Annexure P3 resolved the controversy and held that second complaint on the same facts and circumstances was maintainable against the accused. Harsarup Singh petitioner filed the present petition under Section 482 of the Code of Criminal Procedure and prayed for quashing the order dated 23.1.1992 vide which the Sub Divisional Judicial Magistrate, Gohana set aside the order of acquittal passed on 17.2.1988 by his predecessor. The petitioner alleged that the Magistrate had no power to entertain the second complaint and the order entertaining the second complaint was illegal void and not substanable in the eyes of law. Once the order of acquittal was passed by the Magistrate either on merit or otherwise the aggrieved party could challenge the same by way of appeal and not by filing a second complaint on the same facts.

I have heard the counsel for parties.

The learned Counsel for the petitioner contended that the first complaint filed by the Food Inspector remained pending for about four years when it was dismissed in default and the accused were acquitted vide order dated 17.2.1990 Annexure P1. The second complaint Annexure P2 was filed on the same facts on 19.2.1988 wherein a request was made that original old file may be tagged with the fresh complaint. Once the petitioner and his coaccused were acquitted they could not be tried for the same offence on the basis of a fresh complaint and the Sub Divisional Judicial Magistrate was not competent to recall or review the order of acquittal by holding that second complaint was competent. In support of his contention the learned Counsel placed reliance on the case of Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432 wherein it was observed :

"There is no provision in Criminal P.C. empowering a Magistrate to review of recall a judicial order passed by him. Inherent powers under Section 561A are only given to High Court and unlike Section 151 C.P.C. Subordinate Criminal Courts have no inherent powers."

In this very authority it was further held that :

"a second complaint can lie only on new facts or even on previous facts only if a special case is made out.

The learned Counsel for the respondent urged that the Prevention of Food Adulteration Act, 1954 is a Special Act and adulteration and misbranding of food stuffs are rampant evils. To check the social evils the Act has been brought in force in the larger public interest. When the first complaint was dismissed for nonprosecution, the second complaint was filed soon after and it was maintainable. He placed reliance on the case of Shashi Titu v. State, 1991(1) Prevention of Food Adulteration Cases 177. In this case sample of cow''s milk was found adulterated and a complaint was filed. The court did not go into the merits of the case but acquitted the accused on the ground that the Food Inspector was not competent to launch prosecution in view of the law laid down by the Supreme Court. The Food Inspector filed a fresh complaint on the same facts after obtaining proper authority to institute the complaint and it was held that the second complaint could not be quashed. The reason given was that the earlier order was passed by a court which had no jurisdiction and the order of discharge or acquittal was of no consequence. More so no finding of fact was recorded in the earlier decision.

The above mentioned authority is not applicable to the facts of the present case because the order Annexure P1 vide which the petitioner was acquitted was passed by a court who had the jurisdiction to try the offence. The sole question to be determined in the case is whether the second complaint was competent on the same facts and for deciding the question reference can well be made to the case of Pramatha Nath Talukdar v. Soraj Ranjan Sarkar, AIR 1962 SC 876. It was held in this case as under :

"An order of dismissal under Section 203, Criminal Procedure Code, is no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into."

According to the above observations a second complaint can be entertained if exceptional circumstances existed and the test of determining exceptional circumstances was (1) manifest error (2) manifest miscarriage of justice and (3) new facts which the complainant had no knowledge of could not with reasonable diligence were brought forward in the previous proceedings. There is nothing on record to suggest that requirements of this test are complied with in the present case. The Sub Divisional Judicial Magistrate who passed order Annexure P3 was not satisfied that the previous order of dismissal of the complaint and acquittal of the accused was due to a manifest error or had resulted in miscarriage of justice. Admittedly no new fact was mentioned in the complaint. The sample which was found to be adulterated was seized in the year 1982 and the petitioner faced trial for four years when he was acquitted. JUDGMENT annexure P3 was passed on 23.1.1992 i.e. after about a period of four years when the order Annexure P1 was passed. The second complaint thus was a gross abuse of the process of the court and cannot be said to have been filed with the object of further in the interest of justice. The Food Inspector should have been cautious enough to prosecute the first complaint diligently.

As a result I allow this petition and quash the order dated 23.1.1992. Annexure P3.