Lachhman Dass vs State of U.P. and Another

Palok Basu, J.—The facts in the present petition u/s 482 Code of Criminal Procedure lie in a narrow compas but are interesting. On 25-7-1975 requisite quantity of �Sugandhit Supari� was purchased by the Food Inspector from Lachhman Das applicant. On a report of the Public Analyst that some prohibited sacharine was found in the sample, a complaint for prosecuting Lachhman Das u/s 7/16 of the Prevention of Food Adolteration Act was filed On commencement of the proceedings before the Magstrate, the statement of PW 1, the Food Inspestor, and the statement of the accused-applicant were recorded. In his statement applicant Lachhman Das raised an objection that the prosecution was not maintainable in view of the Supreme Court decision in Rajaldas Gurunamal Pamanani Vs. The State of Maharashtra, , wherein it was held that rule 22 framed under the Prevention of Food Adulteration Act were mandatory. The Magistrate, after hearing the counsel for the parties, upheld the objection and directed discharge of the applicant by his order dated 19-12-77 (Annexure C to the present petition). The Food Inspector filed another complaint before the magistrate on 7-7-1979 about the alleged sale of adulterated �Sugahdnit Supari� by the applicant as noted above The magistrate proceeded to summon the accused on 7-7-1979. However, it was stated in the second complaint that the Supreme Court has in the meantime reconsidered its view on rule 22 and has overruled its earlier decision by a larger bench in the case of State of Kerala and Others Vs. Alasserry Mohammed and Others, . It is apparent that the Magistrate may have felt satisfied because of the said averment in the complaint and proceeded to pass the summoning order dated 7-7-1979 which is under challenge in the present petition u/s 482 Code of Criminal Procedure .

Sri Vinod Kumar Sharma, Learned Counsel for the applicant, raised two grounds of objection to the said summoning order. Firstly, the order of discharge dated 12-12-1977 between the parties has become final and was never challenged. The Magistrate was bound to follow the rule as then laid down by the Supreme Court. Secondly, the continuance of the second complaint based on a later ruling after fifteen years of the alleged sale in 1975 will be an abuse of the process of court. Sri B.N. Upadhya, Learned Counsel for the Nagar Swithya Adhikari, Agra, has supported the order of the magistrate dated 7-7-1979 on the ground that Article 141 of the Constitution of India made it incumbent upon the magistrate to follow the later law of the Supreme Court and, therefore, he was bound to summon the accused-applicant. He reinforced his argument by adding that the order of discharge is not covered by the provisions of Section 300 Code of Criminal Procedure and the principles of estoppel or res judieata are not applicable and, therefore, the second complaint should be permitted to proceed in accordance with law.

It may be noted that a decision which is based even on wrong notions or may not be fully justifiable either on facts or law, has to be challenged before the superior court if it is passed after hearing the parties to the proceeding. Needless to say, in the present case the accused had raised objections about the framing of the charge as early as on 10th December, 1977 relying upon Supreme Court�s judgment holding rule 22 mandatory, which objection was allowed by the Magistrate by his order dated 12-12-1977. In fact, the Magistrate was bound to follow the law of the land as laid down by the Supreme Court under Article 141, he bad no option. The Nagar Swasthya Adhikari, Agra, and the complainant were fully aware of the order passed in favour of the accused. Therefore, it was open to them to challenge the said order and once having submitted to the said decision of the magistrate, it is very difficult to say that it should be nullified only on the basis of later decision and that too because of filing of a second complaint.

The real point in controversy, therefore, is whether the earlier decision having become final, should the second complaint be permitted to continue which was admittedly filed after two years of the order of discharge. On the facts stated above, it is obvious that the Nagar Swasthya Adhikari has acquiesced knowingly to the order of discharge in favour of applicant Lachhman Das. It is true that Section 300 Code of Criminal Procedure is not attracted to the facts of the case because the earlier order may not be treated as an order of acquittal. Even then, it must be held in this case that the principles behind the finality of a judgment are to apply as the decision between the parties in the first complaint had become final when the second complaint was filed, See AIR 1972 SC 150. Bhagat Ram v. S.O. Rajasthan.

However, reliance was placed by Mr. Upadhya on the decision of the Supreme Court reported in Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, . It has been held in the said case that a second complaint may be maintainable under certain contingencies. In this context it may be remembered that in that case before the Supreme Court a second complaint was filed because the first complaint had been dismissed in default of the complainant. But this is not the position here. Full-fledged arguments were made on the basis of law prevailing and then an order of discharge came into existence. The case of Pramatha Nath (supra) is thus not attracted to the facts of the present case.

Mr. Upadhya then drew the attention of the Court to the decision of the Supreme Court in Ramdas Bhikaji Chaudhari Vs. Sadanand and Others, . This ruling, in fact, upholds the argument of the Learned Counsel for the applicant that a judgment which decides a point in issue has to be challenged if its correctness is not to the satisfaction of either party. The Supreme Court has laid down that the later decision must be followed by the courts within the meaning of Article 141 of the constitution of India. In the given facts of that case it is apparent that the order which was passed in favour of the accused relying upon an earlier decision of the Supreme Court itself was under challenge and was, therefore, set aside on the strength of the later decision of the Supreme Court. It may be remembered that in the present case the said order of discharge was not challenged but a second complaint has been filed anew after about two years of the discharge order. In the cited case the Supreme Court awarded only fine taking into account the lapse of about 6 years from the date of taking of the sample. There is thus enough force in the argument of Sri Vinod Kumar Sharma that continuing the present proceedings after about fifteen years of the taking of the sample will serve no useful purpose and would amount to an abuse of the process of court.

In view of the discussion made above this application is allowed. The complaint and further proceedings in case No. 4527 of 1985 -- Nagar Swasthya Adhikari, Agra v. Lachhman Das u/s 7/16 of the Preven- tion of Food Adulteration Act of the court of Judicial Magistrate (Economic Offences) Agra, are quashed.