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2016 ICO 259

2016 (3) KLJ 11

10-03-2016
High Court of Kerala

Crl.R.P. No. 27 of 2012

Justice B Sudheendra Kumar

Aliyar & Anr ( Represented by, Sunny Mathew (Adv.) )

Vs.

Food Inspector Malappuram Circle & Anr ( Represented by, Babu S Nair (PP) )

Equivalent Citations : 2016 (3) KLJ 11 :: 2016 (3) KLT 418 :: 2016 (3) KHC 525 :: 2016 (2) KLD 109 ::
2016 Cri LJ 4255

Headnotes :-

A. Criminal Procedure Code, 1973 – Section 258 and Prevention of Food Adulteration Act, 1954 –
Sections 2(ia)(m), 16(1)(a)(i) & 7(i) – S.258 of the Code has application only in summons cases based
on police report, not in cases instituted upon complaint. (Para 7)

B. Criminal Procedure Code, 1973 – Sections 204, 397 & 482 – The Magistrate has no power to
discharge an accused after his appearance before the Court. The accused may challenge the order of
the Magistrate deciding to summon him by approaching the Sessions Court under S.397 or the High
Court under S.482. (Para 11)

C. Criminal Procedure Code, 1973 – Section 258 – In a summons case instituted otherwise than upon
a complaint, the Magistrate can stop the proceedings at any stage in appropriate cases. If the stoppage
of proceedings is made after the recording of the evidence of the principal witnesses, the Court may
pronounce the judgement of acquittal prematurely and in any other case, the Court may release the
accused and such release shall have the effect of discharge. (Para 12)

ORDER
B. Sudheendra Kumar, J.
1. The revision petitioners are accused Nos.2 and 3 in C.C. No.901 of 2008 on the files of the Court of the
Judicial Magistrate of First Class - I1, Perinthalmanna.
2. The revision petitioners were indicted for the offence under Section 16(1)(a)(i) read with Sections 2(ia)
(m) and 7(i) of the Prevention of Food Adulteration Act, 1954 (for short "the Act") and Appendix B Item
A.05.17.01 of Prevention of Food Adulteration Rules, 1955.
3. The prosecution allegation is that on 14.5.2008 at 12 noon, the Food Inspector, Malappuram Circle,
purchased six sealed packets of black pepper powder of 50 gram each from the shop of the first accused.
The second accused was the Production Supervisor of the Manufacturer, namely, the third accused. After
sampling as per rules, one of the samples was sent for analysis to the Public Analyst. The Public Analyst

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submitted report stating that the sample did not conform to the standard prescribed for the food item and
therefore, the same was adulterated.
4. The revision petitioners appeared before the court below in response to the summons issued from the
court below and pleaded not guilty to the particulars of offence read over and explained to them. Thereafter,
PW1 and PW2 were examined. At that stage, the revision petitioners filed C.M.P. No.4335 of 2011 before
the court under Section 245 of the Code praying for discharge stating that the notice under Section 13(2) of
the Act was issued to the revision petitioners only after the shelf life period of the food item. The court
below dismissed the said petition. Aggrieved by the said order, this revision petition had been filed.
5. Heard both sides.
6. The above case arose out of a private complaint filed by the first respondent herein. It is clear from the
proceedings of the court below that the above case was being tried summarily by the court below as
provided under Section 16A of the Act. The learned Magistrate also mentioned in the order impugned that
the case was being tried following the procedure for summons case. Section 245 of the Code is applicable
only in respect of the trial of warrant-cases instituted, otherwise than on police report. Since the present case
is not a warrant-case instituted, otherwise than on a police report, Section 245 of the Code has no application
to the case in hand as correctly held by the court below.
7. The learned counsel for the revision petitioners has argued that since the first respondent herein, who is
the complainant before the court below, was a Government servant, the court below ought to have stopped
the proceedings and aquitted the revision petitioners under Section 258 of the Code, rather than adhering to
technicalities. A bare reading of Section 258 of the Code would make it clear that the said section is
applicable only when the case is a summons-case instituted otherwise than upon complaint. Thus, it is clear
from the provisions of Section 258 of the Code that the said section is applicable when the case is a
summons-case based on a police report. The Apex Court in John Thomas v. K. Jagadeesan, AIR 2001 SC
2651: 2001 KHC 648 held that Section 258 has no application to cases instituted upon complaint. Since the
present case is a case instituted upon a complaint, Section 258 of the Code has no application to the case on
hand and consequently, the argument in this regard advanced by the learned counsel for the revision
petitioners cannot be accepted.
8. In this case, the revision petitioners had already entered appearance before the court below and the trial
was commenced. The court below found that once the accused appears before the court, there is no
provision for the magistrate to discharge the accused when the case is tried following the procedure for
summons case.
9. In Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338, the Apex court held in paragraph No.15 as
follows:-
"It is true that if a Magistrate takes cognizance of an offence, issues process without there
being any allegation against the accused or any material implicating the accused or in
contravention of provisions of Sections 200 and 202, the order of the Magistrate may be
vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking
Section 203 of the Code because the Criminal Procedure Code does not contemplate a review
of an order. Hence in the absence of any review power or inherent power with the subordinate
criminal courts, the remedy lies in invoking Section 482 of the Code."
10. In Urmila Devi v. Yudhvir Singh, (2013) 15 SCC 624, the Apex Court held that the order issued by the
Magistrate deciding to summon an accused in exercise of his power under Sections 200 to 204 Cr.P.C.
would be an order of intermediatory or quasi-final in nature and not interlocutory in nature and hence the
revisional jurisdiction provided under Section 397 of the Code can be worked out by the aggrieved accused.
It was further held by the Apex court in Urmiladevi (supra) that such an order of a Magistrate deciding to
summon an accused in exercise of his power under Sections 200 to 204 Cr.P.C., can always be subject-
matter of challenge under the inherent jurisdiction of the High Court under Section 482 Cr.P.C.

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11. It is clear from the above ratio laid down by the Apex Court that in a summons-case, the magistrate has
no jurisdiction to discharge the accused after his appearance before the court in response to the summons
issued by the court in exercise of the power under Section 204 Cr.P.C.. The remedy available to the
aggrieved accused in such a situation is to challenge the order of the Magistrate deciding to summon the
accused in exercise of his power under Section 204 Cr.P.C. by approaching the High Court or the Sessions
Court invoking revisional jurisdiction under Section 397 of the Code or approaching the High Court
invoking the inherent jurisdiction under section 482 of the Code.
12. Now the question to be considered is as to whether any remedy is available to the aggrieved accused in
such a situation in a summons-case instituted upon a police report. Section 258 of the Code is relevant at this
juncture, which is extracted hereunder:-
"258. Power to stop proceedings in certain cases:- In any summons-case instituted
otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of
the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded
by him, stop the proceedings at any stage without pronouncing any judgment and where such
stoppage of proceedings is made after the evidence of the principal witnesses has been
recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and
such release shall have the effect of discharge".
It is clear from a bare reading of Section 258 of the Code that in a summons-case instituted otherwise than
upon a complaint the magistrate can stop the proceedings at any stage in appropriate cases. If the stoppage
of proceedings is made after the recording of the evidence of the principal witnesses, the section permits the
court to pronounce the judgement of acquittal prematurely and in any other case, the section permits the
court to release the accused and such release shall have the effect of discharge. The Apex Court held in
John Thomas(supra) thus:-
"Summons cases are generally of two categories: those instituted upon complaints and those
instituted otherwise than upon complaints. The latter category would include cases based on
police reports. Section 258 of the Code is intended to cover those cases belonging to one
category alone i.e."summons cases instituted otherwise than upon complaints". The segment
separated at the last part of the section by the words "and in any other case" is only a sub-
category or division consisting of "summons cases instituted otherwise than upon complaints".
That sub-category is not intended to cover all summons cases other than those instituted on
police report. In fact, Section 258 vivisects only "summons cases instituted otherwise than on
complaints" into two divisions. One division consists of cases in which no evidence of
material witness was recorded. The section permits the court to acquit the accused prematurely
only in those summons cases instituted otherwise than on complaints wherein the evidence of
material witnesses was recorded. But the power of court to discharge an accused at midway
stage is restricted to those cases instituted otherwise than on complaints wherein no material
witness was examined at all."
It is clear from the above decision that summons-cases instituted otherwise than upon complaint would
include cases based on police reports. The above discussion would make it clear that the remedy of an
aggrieved accused in a summons case instituted upon a police report is to approach the court concerned
under Section 258 of the Code in appropriate cases.
13. Since the present case is a case instituted upon a complaint, the court below was perfectly correct in
holding that since the case was being tried following the procedure for summons case, the court below had
no jurisdiction to discharge the revision petitioner after his appearance before the court in response to the
summons issued from the court.
14. Having gone through the relevant inputs, I do not find any reason to hold that the order impugned suffers
from any infirmity, warranting interference by this Court. I do not propose to express any opinion with

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regard to the other findings by the court below in this order as the same is not necessary for the disposal of
this revision a petition.
In the result, this revision petition stands dismissed.
I make it clear that the dismissal of this revision petition will not take away the right, if any, of the revision
petitioners in resorting to other remedies available to them under law.
--- End ---

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