Suresh Prasad Shaw vs State of West Bengal and Others

Gitesh Ranjan Bhattacharya, J.—A petition of complaint was filed by the Food Inspector before the learned Court below against the present petitioner u/s 169(1) (a) (i)/7 of the prevention of Food Adulteration Act. The petitioner as accused appeared before the learned Magistrate in the said case on 14th July, 1986 and was released on bail. Such a complaint filed before the Magistrate comes within the ambit of the provisions of Sections 244, 245 and 246 Cr.P.C. at the relevant stage. Section 244(1) Cr.P.C. provides that when in any warrent case instituted otherwise than on a police report the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. As the provisions of section 245 Cr.P.C. are of vital importance in this case the said section, as it stands amended by the West Bengal Amendment Act of 1988, is reproduced below :

When accused shall be discharged -

1) If, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrent his conviction, the Magistrate shall discharge him.

2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

3) If all the evidence referred to in section 244 are not produced in support of the prosecution within 4 years from the date of appearance of the accused, the Magistrate shall discharge the accused unless the prosecution satisfies the Magistrate that upon the evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest, of justice to discharge the accused.

Section 246(1) provides that if, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under the chapter to which the said section appeartains which he is competent to try and could be adequately punished by him, he shall frame charge against the accused. In this case the petitioner filed an application before the learned Magistrate on 17th June, 1992 for his discharge u/s 245(3) of the Code of Criminal Procedure as all the prosecution witnesses as referred to in section 244 were not produced within 4 years from the date of appearance of the petitioner. The learned Magistrate however by his impugned order dated the 2nd September. 1992 rejected the petition. Thereafter the petitioner has come up before this Court by this revisional application. The point that has fallen for consideration of this Court at the first instance is whether the Magistrate can continue the proceeding even after 4 years from the date of appearance of the accused without framing charge unless the prosecution satisfies him before the expiry of the said period of 4 years under sub-section (3) of Section 245 that ''upon the evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused''. It is argued on behalf of the petitioner that the Magistrate is under a statutory obligation to discharge the accused u/s 245(3) Cr.P.C. on the expiry of the said period of 4 years if all the evidence referred to in section 244 are not produced in the meantime and that, if not done earlier, the Magistrate is not entitled after the expiry of the said period of 4 years to consider whether upon the evidence already produced and for special reasons there is ground for presuming that it shall not be in the interest of justice to discharge the accused. It is submitted by the learned Advocate of the petitioner that this interpretation is warranted by the logic of the similar interpretation which Section 167(5) Cr.P.C. as amended by the West Bengal Amendment Act has received from this Court. The West Bengal amendment of Section 167 Cr.P.C. prescribes specific period, for different types of cases and provides that if the police investigation in respect of any such case is not concluded within the prescribed period applicable to such a case ''the Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest, of justice the continuation of the investigation beyond the periods mentioned in this sub-section is necessary'' (emphasis supplied). It has been interpreted by this High Court that the prayer for continuation of the investigation beyond the prescribed period must be made by the Investigating Officer to the Magistrate before the expiry of the prescribed period seeking permission for special reasons and in the interest of justice to continue the investigation beyond the prescribed period and the Magistrate may on such ground grant such permission, if at all, before the expiry of the prescribed period and not after such expiry (vide, Ali Hossain vs. State of West Bengal 1979(1) CHN 210; Ramkumar vs. The State. 1981 Cr.L.J. 1288 : (1981)2 CHN 173: Jay Shankar Jha vs. The State. (1982)1 CHN 24; Rambriksh vs. The State 1983 Cr.L.J. 39 and Pappa Rao vs. The State. 1985(1) CHN 1).

The reason that weighed with the court in giving the interpretation that any prayer for continuation of the investigation beyond the prescribed period and any permission in that respect must be made and given respectively before the expiry of the said period will be found in the following observation of a Division Bench of this Court in Ramkumar vs. State (supra) at page 1290:

In such a case, section 167(5) by its plain language, gives a mandate to the Magistrate to make an order stopping further investigation into the offence unless the officer can satisfy, the Magistrate that continuation of investigation beyond the period of six months is necessary for special reasons and in the interest of justice. The power that has been given to the Magistrate to permit continuation of the investigation beyond the period of six months clearly envisages that it has to be exercised before the expiry of six months. That on the expiry of the said period the Magistrate cannot entertain any prayer to extend the period of investigation will be evident from the words ''the continuation of the investigation'' and ''beyond the period of six months is necessary'' appearing in sub-section (5). ''Continuation of the investigation'' in section 167(5) may be read in contradistinction to ''further investigation'' appearing in section 167(6). When so read ''continuation of the investigation'' pre-supposes an investigation which is in progress. Once the period of six months expires, the Magistrate by stopping the investigation brings an end to the investigation by the operation of sub-section (5) of section 167. If any prayer of the Investigation Officer is entertained after the expiry of said period and allowed, the investigation thereby will be reopened and it will be ''further investigation'' as envisaged under subsection (6) of Section 167 and not continuation of investigation. Then again, to record a satisfaction that the investigation ''beyond the period of six months is necessary'' the Magistrate necessarily has to obtain the satisfaction before the expiry. It must therefore be held that any direction for continuation of the investigation given u/s 167(5) after the statutory period will be without jurisdiction.

We thus see that the interpretation which Section 167 (5) Cr.P.C. has received from this Court has been extracted from the language and expression used by the legislature in the said section. The legislature in the said section clearly provided for stopping of investigation into the offence if the investigation was not concluded within the specified period and had at the same time authorised the Magistrate to consider the question of continuation of the investigation beyond the prescribed period if the Investigating Officer could satisfy him that such continuation of investigation beyond the prescribed period was necessary for special reasons and in the interest of justice. In the perspective of the legislative concern, clearly expressed by the language used, that either the investigation into the offence has to be stopped on the expiry of the specified period or the continuation of the investigation beyond the specified period on special grounds has to be permitted by the Magistrate, this Court has interpreted that the permission for continuation of the investigation will nave to be sought and obtained before the expiry of the prescribed period. Before we bodily lift the interpretation ascribed to Section 167(5) Cr.P.C. we will have to ascertain whether the language used in the said two sections are similar or identical so as to admit of one and the same interpretation for both the sections or whether there is difference in language and context of the two sections necessitating independent interpretation in each case suited to its own context. Section 245(3) does not at all speak of stopping or continuation of proceeding whereas section 167(5) speaks of stopping of investigation into the offence or continuation thereof. This visible difference between the texts of the two sections is itself a sharp pointer to the difference in the import of the two sections.

Even in the matter of interpretation of Section 167(5) the following observations of the Supreme Court in Hasinara Khatun vs. State of Bihar, 1979 Cr.L.J. 1036 in connection with the provisions of the said section 167(5) Cr.P.C. deserve notice :

It is clear from this provision that if in any case triable by a Magistrate as a summons case the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate must make an order stopping further investigation into the offence, unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interest of justice, the continuation of the investigation beyond the period of six months is necessary. With a view to securing compliance with this provision we directed that if in a case triable by a Magistrate in a summons case it is found that investigation has been going for a period of more than six months without satisfying the Magistrate that for special reasons and in the interest of justice, the continuation of the investigation beyond the period of six months is necessary, the State Government will release the under trial prisoners, unless the necessary orders of the Magistrate are obtained within a period of one month. The reason for giving this direction was that in such a case the Magistrate is bound to make an order stopping further investigation and in that event, only two courses would be open : either the police must immediately proceed to file a charge-sheet if the investigation conducted till then warrants such a course, of if no case for proceeding against the under-trial prisoners is disclosed by the investigation, the under trial prisoner must be released forthwith from detention.

(emphasis supplied)

By all means, these observations clearly indicate that the permission to continue the investigation beyond the prescribed period may be obtained in appropriate cases even after the expiry of such period. In Pappa Rao vs. The State (supra) a Division Bench of this Court composed of Anil K. Sen and G.N. Ray, JJ. (as their Lordships then were) observed thus in connection with the Section 167(5) Cr.P.C. :

Though it is somewhat debatable as to whether every breach of the provision would render the subsequent proceeding void or not, it has now been held by this Court that leave to continue the investigation beyond 180 days from the date of arrest in summons cases should be taken before the expiry of the said period. It has further been held that no Magistrate can proceed to try an accused on a charge-sheet submitted as a result of investigation continued in breach of this provision. That is the view expressed by this Court in the decisions relied on by Mr. Singh. We are bound by these decisions, however much we may entertain some doubt on the point as to why the Magistrate cannot condone the breach in a case where sufficient grounds have been made out for continuance of the investigation even beyond 180 days only because leave to continue the expiry of the period. Terms of sub-section (5) of Section 167 of the Code of Criminal Procedure may not be read to be so mandatory as to rule out all scope for such condonation amounting to grant of leave retrospectively. We would however proceed on the view earlier taken by this Court namely, if the investigation is not completed within 180 days from the date of arrest, no court can take cognizance on a charge-sheet submitted as a result of any investigation continued beyond 180 days from the date of arrest.

The above quotation from the Division Bench decision of this Court as well as the earlier quotation from the Supreme Court decision would at any rate convince anyone that even the language of Section 167(5) Cr.P.C. is not that imperative as to lead to one and only interpretation that the requisite permission for continuation of the investigation beyond the prescribed period u/s 167(5) Cr.P.C. must be obtained before the expiry of the prescribed period or not at all. On the other hand, the said observations as quoted above from the Division Bench decision and the Supreme Court decision rather show that the language of Section 167 Cr.P.C. also admits of contrary interpretation that the permission for continuation of the investigation u/s 167(5) may be obtained in appropriate cases even after the expiry of the prescribed period.

But however the law in this State is now settled, so far as the decisions of this Court are concerned, that the permission for continuation of the investigation must be obtained before the expiry of the prescribed period. This aspect of the matter that even the language of Section 167(5) is not necessarily productive of only one interpretation is highlighted above by me with the aid of the opinion of high authorities, only for the purpose of projecting the necessity of being cautious before indiscriminately applying the ultimate interpretation received by Section 167(5) from this Court to Section 245(3) without taking into consideration the difference in the language and context of the two sections. As we have already seen, apart from discharge, the legislative emphasis in Section 167(5) Cr.P.C. is on stopping of investigation after the expiry at the prescribed period or continuation of the same on special grounds, but Section 245(3) Cr.P.C. does not speak anything about stopping or continuation of the proceeding. It speaks of discharge of the accused. Therefore whatever may be the effect of the order which the Court may pass in a particular case under subsection (3) of Section 245 Cr.P.C. what the Court has to consider in that connection is whether an order of discharge of the accused should be passed, and not, unlike Section 167(5) Cr.P.C., whether the proceeding should be stopped or continued. In terms of the said sub-section (3) of Section 245 the question whether the accused should be discharged or not crops up only if all the evidence referred to in Section 244 are not produced in support of the prosecution within 4 years from the date of appearance of the accused. In considering the question whether an order of discharge should be passed or not under the said sub-section (3) of Section 245 the Magistrate has to take notice of the evidence already produced till the expiry of the period of 4 years. Therefore the question cannot be taken up for consideration before the expiry of the period of 4 years because the prosecution can legitimately claim opportunity to produce evidence till the expiry of the said period of 4 years.

Section 167(5) Cr.P.C. applies to the stage of police investigation. It is for the police to consider and decide as to in what manner the investigation in a particular case at a particular stage has to be conducted and guided and in what line the investigation has to proceed on the basis of the clue and materials available upto that stage. In the matter of investigation it is for the police to decide the course of action and the court or the Magistrate has very little scope to interfare with the course of investigation by police or with the manner in which the investigation has to be conducted by the police. Rather the judicial decisions have consistently deprecated any undue interference with the course of investigation by Magistrates or Courts. The course of police investigation into any offence has also very often to be kept secret in the interest of the investigation and any undue publicity of the steps of the investigation may frustrate the purpose and efficacy of investigation which is highly undesirable. That is why law has made the case diary of police maintained during an investigation, to some extent, a privileged document to which excess is not ordinarily available to others. In this background, it is the Investigating Officer who is the best person to know at what stage the investigation is at any particular time and to anticipate what further time may be necessary to complete the investigation and accordingly it is for him to apply before the Magistrate in appropriate cases u/s 167(5) Cr.P.C. for permission to continue the investigation beyond the prescribed period for special reasons and in the interest of justice and the Magistrate may on consideration of the prayer of the I.O. and the relevant materials and circumstances placed before him parmit, in a fit case, continuation of the investigation beyond the prescribed period. But in a complaint case governed by the warrent procedure at the stage of Sections 244, 245 and 246 Cr.P.C. the circumstances are different. Here the court has a prominent role to see that the proceeding continues expeditiously. Under sub-section (2) of Section 244 the Magistrate is empowered to issue, on the application of the prosecution, summons to the witnesses and obviously to take such further steps as may be warranted by law to ensure attendance of the witnesses in court. While u/s 167(5) the permission to continue the investigation is dependent on two factors, namely, ''special reasons'' and ''interests of justice'', u/s 245(3) there is a third and additional factor, namely, ''the evidence already produced'', this additional factor also shows the clear necessity of a different approach for Section 245(3) from the approach warranted for Section 167(5). Since Section 245(3) prescribes a time period of four years for adducing all the evidence at the stage of section 244 and since in considering the question whether the accused should or should not be discharged u/s 245(3), the evidence already produced has to be looked into, the necessary corollary is that the prosecution must get the full span of four years before it is called upon to satisfy the Magistrate inter alia upon the evidence already produced that for special reasons and in the interest of justice the accused should not be discharged, and consequently the question whether an accused should or should not be discharged u/s 245(3) has to be taken up for consideration only on or after the expiry of the prescribed period and not before that.

In this connection, it is also to be noticed that Section 244 or for that matter Section 245 speaks of evidence before charge. The law has not prescribed, notwithstanding the import of the necessity of speedy trial emanating from Article 21, any specific period for conclusion of the trial after framing of charge and that has been left to the domain of general consideration, depending upon the facts and circumstances of each case, coming within the sweep of Article 21 so far speedy trial is concerned. Once charge has been framed against an accused the question of discharge u/s 245 thereafter will not arise. In this connection, Section 246(1) has some significance. Section 246(1) Cr.P.C. runs thus :

S. 246(1)- If when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(emphasis supplied)

This therefore clearly shows that the Magistrate may frame charge in appropriate cases even before the completion of all the evidence referred in Section 244, because Section 246(1) clearly mandates that charge may be framed even ''at any previous stage of the case''. Therefore even where out of the total evidence proposed to be produced the evidence already adduced makes out a clear case for framing charge the Magistrate may, in an appropriate case, frame such charge u/s 246(1) Cr.P.C. although all the evidence have not yet been produced Under sub-section (5) of Section 246 after framing of charge the accused gets an opportunity to cross-examine the witnesses already examined by the prosecution before charge. Sub section (6) of section 246 provides an opportunity to the prosecution thereafter to examine the remaining witnesses for the prosecution who were not earlier examined before framing of charge. There is no doubt that it is somewhat an extra-ordinary course to take up the consideration of framing of charge before all the prosecution evidence are adduced but even the power of the Magistrate is there to consider the question of framing of charge and also to frame charge in appropriate cases before the prosecution have examined all their witnesses at pre-charge stage and once charge is framed the question of discharge of the concerned accused u/s 245 Cr.P.C. does not arise. Since u/s 245(3) the question is a single and composite one as to whether the accused should be discharged or not and nothing more, it is also not necessary, although permissible, for the prosecution to apply beforehand to the Magistrate praying that the accused may not be discharged u/s 245(3). Even at the time when the Magistrate takes up the matter for passing an order u/s 245(3) the prosecution may, upon the evidence already adduced canvass before the Magistrate that the accused should not be discharged u/s 245(3) for special reasons and in the interest of justice. The irresistible conclusion therefore is that the question whether the accused should be discharged or not u/s 245(3) has to be taken up for consideration only on or after the expiry of the prescribed period and not before that and since the question is a composite one as to whether the accused should be discharged or not the prosecution is entitled to urge at the time when the matter is taken up for passing an order u/s 245(3), that upon the evidence already produced and for special reasons the accused should not be discharged u/s 245(3) in the interest of justice.

The above conclusion will be reinforced if the matter is viewed from another angle. In Section 167(5) the law expressly says of passing an order ''stopping further investigation into the offence'', but as I have already pointed out, in Section 245(3) there is no provision for making any order stopping the further proceeding in the case. This omission is not accidental but is rather deliberate and well-intended. In Section 167(5) the legislature has in unequivocal terms expressed its intention that the further investigation into the offence has to be stopped. In view of the language of section 167(5) it has been held by this Court in Dilip Kumar Das us. State of West Bengal, 1992 C.Cr.L.R., Cal. 350 : 1992(ii) CHN 25 : 96 CWN 1017 : 1993 Cr.I.L.J. 837 as follows :

It may be noticed that Section 167(5) does not admit of any individualised approach. Its application, where it applies, is rather total and composite. What it provides for is stopping of investigation not in respect of any particular accused but in respect of the offence itself, the benefit of which enures to all the accused whether in custody or on bail, whether recently arrested or arrested long back, whether identified or unidentified, whether known or unknown yet, whether apprehended or absconding. It is not that u/s 167(5) investigation can be stopped in respect of the particular accused from the date of whose appearance or arrest, as the case may, the prescribed period has already elapsed and at the same time allow the investigation to continue in respect of the other accused from the date of whose appearance or arrest the prescribed period has not yet elapsed. If the investigation is stopped u/s 167(5), the whole of the investigation is brought to a grinding halt not only in respect of all accused but also in respect of the offence or offences which was or were the subject matter of the investigation.

Again in paragraph-8 (ibid) it has been observed thus :

It may be noticed that when the period prescribed in the said subsection in reference to any particular offence expires on the basis of computation from the date of appearance or arrest of an accused, that is, the accused who was arrested or who appeared first in point of time, the Magistrate is required to stop ''further investigation into the offence'' which means there will not be any further investigation not only in respect of the offence but also in respect of any accused in connection with that offence unless, of course, there are special reasons for allowing the continuation of the investigation beyond the prescribed period.

It will thus be evident that in view of the particular language used in Section 167(5) it has to be held that on the expiry of the prescribed period the entire investigation in respect of the offence has to be stopped the benefit of which enures in favour of all accused. But in section 245(3) it is not stated that the proceeding has to be stopped, far less the proceeding in respect of all the accused has to be stopped. The period of four years mentioned in Section 245(3) commences in view of section 244 Cr.P.C. from the time when the accused appears or is brought before the Magistrate. Now, where there are more accused than one in a particular case it is quite possible that they may not all appear or be brought before the Magistrate on one and the same date. It is quite possible that different accused persons may appear before the Magistrate for the first time on different dates in the same case. The question therefore naturally will arise as to from whose date of appearance the period of four years is to be calculated. Obviously in such case the period in respect of each accused has to be calculated from the date of appearance of that particular accused for the purpose of calculating whether the period of four years has expired so as to warrent action u/s 245(3) Cr.P.C. in respect of that accused.

While u/s 167(5) for reasons discussed in the decision in Dilip Kumar Das (supra) there cannot be any individualised approach, u/s 245(3) Cr.P.C. such individualized approach is not barred or ruled out and may rather be aptly necessary at times. In Santosh Dey vs. Archana Guha, Cal.L.T. 1992(2) H.C. 1 : 1992(1) CHN 366 it has been observed thus by this Court;

I have given my anxious consideration to all aspects of the matter and I am of the view that there cannot be any set formula which may be of universal application in all cases. There may be cases where the facts and circumstances may demand in the interest of justice a unified and convergent approach in considering the prayer of the different accused persons for discharge under sub-section (3) of Section 245 while there may also be cases where the facts and circumstances may require individualized and diversified approach in the interest of justice yielding different results in respect of the different accused persons in the same case in the matter of invoking the benefit of the said sub-section (3) of Section 245. It will depends upon a number of variable factors which may differ from case to case. The common factor in all cases, however, is the interest of justice and that must be the end product of all equations.

Then again elsewhere in the same decision in Santosh Dey (supra) it has been observed thus :

The decision of the Supreme Court in A.R. Antulay, in my opinion, provides sufficient guidelines for considering what circumstances may constitute special reasons for presuming, in the background of the particular facts and circumstances of a case, that it shall not be in the interest of justice to discharge the accused u/s 245(3) Cr.P.C. If it appears that the accused was responsible for the delay obviously he cannot take advantage of his own wrong. Again, if it is found that the complainant was responsible for the delay either because he was not deligent or because he was negligent or was intentionally prolonging the trial for the purpose of harassing the accused, obviously he cannot claim that the accused should be denied his right of discharge under the sub-section (3). There may also be cases where neither the complainant nor the accused may be responsible for the delay, but the delay might have been caused due to circumstances beyond the control of the complainant or due to the system itself which, to borrow the language of Supreme Court may be called systemic delay. If the delay in any particular case is found to be systemic for which the complainant cannot be made responsible or the delay is caused by any other reason for which neither the complaint nor the accused is responsible, certainly that fact will ordinarily constitute valid ground for allowing the proceedings to continue inspite of the fact that four years have already elapsed since the appearance of the accused. Different considerations even in such a case may however arise where the offence is a minor one not being an economic offence and the delay is not caused by the accused. Different considerations may also arise where the accused has already suffered prolonged detention or is rotting in custody for a shockingly long period or has been suffering some substantial unfavourable consequence due to the pendency of the proceedings such as suspension or dismissal from service, denial or withholding of increment or promotion in service, etc. There is no doubt that all the circumstances cannot be for seen and therefore cannot be exhaustively enumerated. What has been mentioned above is only illustrative and then again, these circumstances wherever they exist are also required to be taken into consideration not in any isolated way but along with the other peculiarities of the case, if any.

It will thus be seen that in considering the question whether any order of discharge in respect of a particular accused in a given case is warranted u/s 245(3) Cr.P.C. a good number of individual factors applicable only to the particular accused may have to be taken into consideration along with the relevant general factors yielding different results for the different accused persons in the same case. Again where there are more accused then one and where they first appeared before the Magistrate on different dates the Magistrate may have to or may be called upon to consider whether discharge u/s 245 (3) is warranted in respect of any particular accused in respect of whom four years have already elapsed from the date of his appearance while the period of four years have not yet expired in respect of the other accused person''s reckoned from the respective dates of their appearance. Any order in such a situation as to whether the particular accused under consideration should or should not be discharged under sub-section (3) of section 245, obviously will be confined in its effect only to that accused and will not perforce apply to the other accused persons in respect of whom the period of four years from the respective dates of their appearance might not have yet elapsed thereby rendering the question of their discharge u/s 245 (3) premature yet.

Again when an investigation has been stopped under sub-section (5) of Section 167 by the Magistrate, the Sessions Judge may, in a fit case, under sub-section (6) of Section 167 vacate such order and direct further investigation to be made into the offences. This power of the Sessions Judge is quite different from a revisional power. No such corresponding power however has been given by the legislature to the Sessions Judge authorising him to direct continuation of proceeding u/s 244 which indivates that the legislature did not contemplate passing of an order stooping the proceeding under sub-section (3) of Section 245.

Therefore looking from any angle of view it has to be concluded that u/s 245(3) there is no scope of considering whether the proceeding itself as a whole should be stopped or not, but the consideration is rather confined only to the question whether the particular accused in respect of whom four years have already elapsed from date of his appearance should be discharged or not under the said sub-section (3) and the court may have to consider the question separately at different times in respect of each different accused as to what order is required to be passed u/s 245 (3) in the case of that particular accused in whose case the period of four years have already elapsed.

The conclusion also crystalises to this that the question of passing an appropriate order u/s 245(3) in respect of any accused has to be taken up by the Magistrate only on or after the expiry of the prescribed period in respect of such accused and not before that and since the question is a composite one as to whether the accused should be discharged or not the prosecution is entitled to urge at the time when the matter is taken up for order u/s 245 (3) on or after the expiry of the prescribed period that upon the evidence already produced and for special reasons the accused should not be discharged u/s 245 (3) in the interest of justice. In any particular case the question of passing an appropriate order u/s 245 (3) may have to be considered by the Magistrate on different occasions in respect of different accused persons separately where the accused persons appeared for the first time before the Magistrate on different dates. It may also so happen in the peculiar facts and circumstances of a case that while one accused may be discharged u/s 245(3), in the case of another accused in the same proceeding an order of discharge may be considered unwarranted in the interest of justice under the said sub-section (3) of section 245. Therefore the question of stopping the proceeding as whole does not arise and the only order which the Magistrate may pass in respect of each accused u/s 245(3) is whether that particular accused is discharged or not under-section (3) of Section 245 Cr.P.C.

The next point argued on behalf of the petitioner is that in this case the complaint has been filed with the consent endorsed by Local (Health) Authority and Health Officer on the petition of complaint but under the Calcutta Municipal Corporation Act, 1980 there is no post of Health Officer and therefore any Health Officer is not competent to accord any consent u/s 20 of the Prevention of food Adulteration Act, 1954 and as such the petition of complaint is bad and any cognizance taken thereon is also bad. Section 20(1) of the said P.F.A. Act, 1954 inter alia provides that no prosecution for an offence under the Act, not being an offence u/s 14 or Section 14A shall be instituted except by or with the written consent of the Central Government or the State Government or a person authorised in this behalf by general or special order, by the Central Government or the State Government. Under notification No. Health/PH/ 1605/3F-32/85 dated the 31st July, 1985 the Governor in exercise of the power conferred by sub-section (1) of section 20 of the said Act authorised for the purpose of the said sub-section certain officers mentioned therein. Health Officer, Calcutta Corporation was also mentioned there. The petition of complaint in the present case was filed in April, 1986. Consequently the consent granted by the Health Officer Calcutta Corporation for filing of the present complaint was consistent with the said notification. By subsequent notification No. Health/PHP/609/3F-32/85 dated the 4th June, 1986 such authorisation in respect of the areas comprised within the jurisdiction of Calcutta Municipal Corporation was made in favour of the Chief Municipal Health Officer, Calcutta Municipal Corporation. It has been argued on behalf of the petitioner that at the time when the present complaint was filed there was no officer of the Calcutta Corporation recognized by the provisions of the Calcutta Municipal Corporation Act, 1980 as Health Officer and as such the authorisation by the 1985 notification in favour of the non-existent Health Officer of Calcutta Corporation was bad in law. In this connection, my attention has also been drawn to Section 14 of the said CMC Act, 1980 wherein clause (h) the Chief Municipal Health Officer has been mentioned as one of the officers of the Corporation but in that section no Health Officer has been mentioned. Sub-section (1) of Section 14 of the CMC Act, 1980 provides that save as otherwise provided in the Act, the Corporation shall have the following officers''. There are also provisions in the said Section 14 as to how and by whom those officers are to be appointed. Section 17 of the said Act provides that the posts of officers and employees of the Corporation, other than those referred to in sub-section (1) of Section 14shall constitute the establishment of the Corporation. Section 18 mentions the appointing authorities in respect of the posts of officers and employees constituting the establishment of the Corporation. Section 14, section 17 and section 18 when read together will clearly show that besides the officers mentioned in Section 14 the corporation also will have other officers and employees in the establishment of the corporation. It is not denied or disputed that besides the Chief Municipal Health Officer mentioned in section 14(1) the Corporation has also other officers designated as Health Officer. Such Health Officers are officers in the establishment of the Corporation coming within the ambit of Section 17 of the CMC Act, 1980 and therefore there is no substance in the argument that the Health Officer has no recognized status under the Calcutta Municipal Corporation Act, 1980 and as such there could not have been any valid authorisation in favour of such officer u/s 20 of the Prevention of Food Adulteration Act. I find that at the relevant time Health Officer, Calcutta Corporation was properly authorised u/s 20 of the Prevention of Food Adulteration Act and as such there is nothing wrong with the petition of complaint which has been filed with the consent of such Health Officer. Now, I come to the final phase. In the present case the food Inspector filed the petition of complaint against the petitioner accused not for selling adulterated food, namely, topioca wafers but for selling misbranded topioca wafers. The nature of misbranding is mentioned in the ''opinion'' of the public analyst which is Annexure-B to this revisional application. The sample examined by the public analyst did not contain declaration regarding the address of the manufacturer and batch and code no. any where in the polythene packet and hence the public analyst opined that it was misbranded. The tests held by the public analyst, such as, test for coal tar dye, chromatographic test and the microscopic examination did not show that the sample was in any way adulterated. Misbranding of an article of food has been defined in clause (IX) of Section 2 of the Prevention of Food Adulteration Act. This clause (IX) enumerates several types of misbranding covered by sub-clauses (a) to (k). The misbranding in this case comes within the said sub-clause (k) as the label does not contain the address of the manufacturer and the batch or code no. There was however no misrepresentation or flase labelling or false declaration. There is no doubt that any sort of misbranding of food is prohibited u/s 7 of the Prevention of Food Adulteration Act and is punishable u/s 16(1)(a)(1), but even then the nature of the alleged misbranding deserves consideration in the present case in deciding whether the long pendency of the proceeding in the Court below by itself warrants any order in favour of the petitioner at this stage. The petition of complaint was filed as far back as in April, 1986, more than 7 years back. Even then the prosecution could not complete its evidence before charge. It also does not appear that the petitioner accused was in any way responsible for this long pendency of the proceeding. On the other hand, from the order of the court below dated the 2nd September, 1992 it appears that for quite sometime the proceeding remained stayed on the prayer of the prosecution. In the circumstances, when the petitioner accused was not in any way responsible for this long pendency of the proceeding in the court below for more than 7 years and when the offence alleged against the present petitioner is not of selling adulterated food but of selling topioca wafers in a ''misbranded'' packet and the nature of misbranding is rat(sic)r only of technical nature, there being no misrepresentation, false declaration or false labelling, it will be an abuse of the process of the court now, having regard to the trifling nature of the alleged offence, to allow the proceeding to continue yet when more than 7 years have already elapsed. Therefore having regard to the long pendency of the proceeding in the court below without making much head way and having regard to the technics and nominal nature of the alleged offence I hold that it will be a denial of the petitioner''s right to speedy trial emanating from Article 21 of the Constitution of India to allow further continuation of the proceeding in the court below. The proceeding in the court below is accordingly quashed. The revisional application stands disposed of accordingly.