State of Maharashta vs Baban Linganna Gavli

G.M. Khandekar, J.—This Criminal Revision Application by the State questions the propriety and correctness of an older dated 15-11-1984 passed by the learned Chief Judicial Magistrate, Aurangabad, on the application at Exh. 16 filed by the State in Criminal Case No. 2515 of 1980.

The complainant, who is the Food Inspector, filed a complaint against the accused-Respondent-for offence u/s 7(i)(2)(ia) and (in) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, in it of the Chief Judicial Magistrate, Aurangabad. On 15-11-1984, the complainant filed an application at Exh. 16 before the learned Magistrate and contended that, as the said court was not specially empowered by the State Government u/s 16A of the Prevention of Food Adulteration Act (hereinafter referred to as ''the said Act"), the said proceedings be stayed fill the Magistrate is empowered u/s 16A of the said Act, or, the case should be transferred to any Magistrate specially empowered under that section. The learned magistrate passed the following order on the said application :-

"The case to proceed. The point of jurisdiction may he taken up by V.P.P. in appeal or revision the case can be tried as a regular ease."

It is this order which is changed by the Male in this revision application.

None appeared for the original accused Respondent in this Court. Shri S.K. Shelke, the learned Additional Public Prosecutor, appearing for the Petitioner-State canvassed before the that the Magistrate cannot get jurisdiction to try the cases under the provisions of the said Act unless he is empowered by the State Government to that effect as provided in section 16A of the said Act. He also canvassed before me that the Magistrate could not try the present case as a regular ease as it would offend the spirit of section 16A of the said Act.

In order to deal with this argument, it would be necessary to notice the statutory provision of section 16A of the said Act, which is in the following terms:-

''Notwithstanding anything contained in the code of Criminal Procedure, 1973 alt offences under sub-section (1) of section 16 shall be tried in a summary way by a Judicial magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive )of the said v ode shall, as far as may be, apply to such trial :

provided that in the ease of any conviction in a summary trial under this section, it shall be lawful for the magistrate to pass a sentence of imprisonment for a term not exceeding one year :

provided further that when at the commencement of, or in the course of. a summary trial under this section, it appears to the magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is. for any other reason. undesirable to try the case summarily, the magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.''

The Legislature, in my view, introduced summary trial primarily for the reason to enable the Courts to expeditiously bring to book the offenders. Only a quick retribution can serve the objective of deterring the would-be offenders from committing the given crime which was not only highly unsocial in character but it exhibited the tendency of assuming menacing proportions. Since the summary trial inherently happens to be less fair than regular trial, the Legislature proceeded to provide one benefit to offenders who are tried summarily that in their case the maximum dose of sentence would not increase more than one year rigorous imprisonment, but if the offence was such that it required a dose of sentence higher than what could be awarded as a result of summary trial, the legislature authorised the Magistrate to say so in writing and then proceed to try the offender in accordance with the procedure prescribed by the Criminal Procedure Code.

From the above, it is clear that the Legislature intended that all offences u/s 16(1) of the said Act be tried summarily by specially authorised Magistrate, unless such a Magistrate in writing opines that the accused deserved greater dose of sentence and so he be tried in accordance with the procedure prescribed by the Criminal Procedure Code. But the Judicial Magistrates can hold summary trial only if they are specially so empowered. So, unless they are specially so empowered the question of their holding summary trial would not arise. However once the Judicial Magistrates are specially so empowered, then they cannot discriminate between one case and the other and they shall have to try every offence u/s 16(1) in the first instance in a summary way and, if a given offence is such that the offender requires to be awarded greater sentence than could be awarded as a result of summary trial. then in that case after passing such an order in writing would be entitled to try such offenders in accordance with the procedure prescribed by the Code for the given offence. It appears to me that the holding of summary trial of offences u/s 16(1) of the said Act is not mandatory until such time Judicial Magistrates are specially so empowered in this regard. Once they are so empowered, then every case u/s 16(1), in the first instance, shall mandatory be tried in a summary way, unless the Magistrate for the reasons mentioned in the said provision considers it necessary to try the offender in accordance with the procedure prescribed by the Code of Criminal Procedure.

In view of what is staled above, the argument advanced by the learned Additional Public Prosecutor that all offences u/s 16(1) of the said Act must be tried summarily by a Judicial Magistrate only cannot be accepted. If the Magistrates are not specially empowered by the State Government u/s 16A of the said Act, they have no alternative but to try the case in a regular way as a warrant case in accordance with the procedure prescribed by the Code of Criminal Procedure. In the instant case, the Chief Judicial magistrate has not been specially empowered by the state Government u/s 16A of the said Act, though it appears that by Notification NO, PFA-1279 1390 PH-4 dated 5th June 1981,153 Judicial Magistrates in the Mate have been empowered by the State Government as required by section 16A of the said Act. I am told by Shri Shelke that no other notification has been issued by the state Government u/s 16A of the said Act after 5th Jun; 1981. I am also informed by Shri Shelke that out of the list accompanying the aforesaid Notification dated 5th June 1981, only two Magistrates are at present posted at Aurangabad proper, while there is no other Magistrate in this district, who has been empowered u/s 16A of the said Act. If the contention of Shri Shelke is to be accepted, size that only the Magistrate seem powered u/s 16A of the said Act contrary the offences u/s 16(1) of the said Act, that would create a very, anomalous situation. That was not the intention of the Government while issuing the notification dated 5th June 1981. If a Magistrate is empowered u/s 16A of the Act, then only it is incumbent upon him to try the offences u/s 16(1) of the said Act in a summary way and not otherwise. Apparently, therefore, the trial of offences u/s 16(1) of the said Act by the other Judicial Magistrates is not prohibited as required by the procedure prescribed for warrant cases in the Code of Criminal Procedure. The argument advanced on behalf of the State, therefore, does not carry any substance.

In the instant case, as the Chief Judicial Magistrate was not empowered by the State Government u/s 16A of the said Act, he was perfectly competent to try the offence as a regular case. Consequently, the impugned order passed by him on Exhibit 16 in Criminal Case No. 2515 of 1980 does not call for any interference and it is accordingly maintained.

In the result, this Criminal Revision Application is dismissed. Rule is discharged.