Delhi District Court
Food Inspector vs . Jogi Rawal & Ors. on 28 July, 2023
IN THE COURT OF SH. HARJYOT SINGH BHALLA
ADDITIONAL SESSIONS JUDGE-04
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
FOOD INSPECTOR VS. JOGI RAWAL & ORS.
CNR No. DLND01-000811-2018
Cr. Rev. No. 39/2018
FOOD INSPECTOR
....Revisionist
Versus
A-1) SH. JOGI RAWAL (R-1)
S/o Sh. Pradeep Rawal
M/s Cafe Coffee Day
(A Unit of Amalgamated Been Coffee Trading
Company Ltd.)
40-42, Janpath, Pearey Lal & Sons Building,
New Delhi-110001
R/o B-64, New Gupta Colony,
New Delhi-9
A-2) SH. DEEPAK KUMAR (R-2)
S/o Sh. Vinod Sharma
M/s Cafe Coffee Day
(A Unit of Amalgamated Been Coffee Trading
Company Ltd.)
40-42, Janpath, Pearey Lal & Sons Building,
New Delhi-110001
R/o P-16, Mohan Garden,
New Delhi-110059
Cr. Rev. No. 39/2018 Page 1 of 9
A-8) SH. VENU MADHAY (R-3)
M/s Amalgamated Been Coffee Trading Company Ltd.
112 Raheja Chamber,
12 Museum Road,
Banglore-560001, India
A-9) Amalgamated Been Coffee Trading Company Ltd. (R-
4)
Vending Unit:
M/s Cafe Coffee Day 40-42, Janpath, Pearey Lal & Sons
Building,
New Delhi-110001
Warehouse:
C/o TCI Logistics, No. A-25,
Okhla Industrial Area Phase-1,
New Delhi-110020
Marketing unit:
M/s Amalgamated Been Coffee Trading Company Ltd.
112 Raheja Chamber,
12 Museum Road, Banglore-560001, India
Having Regd. Office at
M/s Amalgamated Been Coffee Trading Company Ltd.
K.M Road, ChicMagalur,
Karnataka-577101
A-12) M/s A&M ENTERPRISES (R-5)
159, D.B. Road, R.S. Puram,
Coimbatore, Tamil Nadu-641002
A-15) M/s V&V BEVERAGES PVT. LTD. (R-6)
8107 DLF, Phase-IV, Gurgaon-122002
...Respondents
Cr. Rev. No. 39/2018 Page 2 of 9
Date of Institution: 02.02.2018
Date of decision : 28.07.2023
JUDGMENT (ORAL)
1. Vide this judgment, I propose to dispose of the present criminal revision filed against the impugned order dated 04.12.2017 passed by Ld. ACMM-II, Patiala House Courts, New Delhi.
2. Arguments heard. TCR perused.
3. Briefly stated, the facts of the present case are that on 19.05.2008 at about 06.15 PM, the Food Inspector purchased a sample of "Snapple" an article of food for analysis from M/s Cafe Coffee Day, Janpath, New Delhi. The sample was found to be misbranded for violation of Rule 32 (e) and date of manufacture was declared in a vague manner and in violation of Rule 32 (f) of PFA Act and Rules.
4. On this allegations, a complaint for violation of Section 7 of PFA Rules with Section 2 (ix) (k) of PFA Act, 1954 and Rule 32 (e) and 32 (f) of PFA Rules punishable under Section 16 (1) (a), 1954 was filed.
5. It is noticed that on 31.05.2011, Ld. ACMM-II, had listed the matter for framing of notices. Again, the same direction was reiterated on 16.08.2011. Thereafter, the matter remained pending and got delayed at the same stage for one reason or the other.
6. On 28.01.2016, the matter was directed to be listed on 12.04.2016 for arguments on notice/discharge application, if Cr. Rev. No. 39/2018 Page 3 of 9 any, filed by the accused. Again, on 16.03.2017, the matter was adjourned for arguments on notice. Similar order was passed on 06.07.2017.
7. The emphasis by me on the previous ordersheets, where it is indicated that the matter was at the stage of notice to the accused, is relevant, inasmuch as, under the Code of Criminal Procedure, notice of accusation is served in a summons triable case, whereas, the charge is required to be framed in a warrants triable case.
8. At this juncture, it may be pertinent to refer to Section 16 (A) of PFA Act, which reads as follows:
16A. Power of court to try cases summarily.
--Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all 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 Code shall, as far as may be, apply to such trial:
Provided that in the case 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.
9. If Section 16 (A) is read carefully, then it mandates that all offences under Section 16 (1) shall be tried in a summary Cr. Rev. No. 39/2018 Page 4 of 9 way. The proviso II to Section 16A PFA Act also mandates in clear term that only at commencement or in the course of summary trial, if the court feels that case be not tried summarily, then the procedure in terms of punishment shall be followed. I am unable to find any such conclusion or direction by the Ld. Magistrate in the present file that this case was not fit to be tried summarily or warrant triable procedure was required to be followed. Section 262 to 265 of Cr.PC deals with summary trial. As per Section 262 (1) of Cr.PC, the procedure prescribed for summons case has to be followed. It is pertinent to note that the present case is a complaint case, instituted on a written complaint, made before the Ld. Magistrate by the Food Department and is not a case instituted on a police report. Therefore, the procedure as prescribed in Chapter XX, Section 251 to 259 is required to be followed.
10. In these circumstances, I had raised an objection to the power of the Trial Court to discharge in the first place.
11. In these circumstances, the impugned order of discharge may be beyond the competence of the court concerned as, where the punishment is less than 2 years and the case would be summons triable or summary triable. Therefore, the neat question that arises for consideration is whether the Ld. MM even had a power to discharge any accused once summoned, considering the following circumstances:
firstly, the case was a complaint case and not a State case initiated on a police report;
secondly, offence being summons triable or summary triable, there is no provision for discharge of the accused at any stage before conclusion of evidence in a Cr. Rev. No. 39/2018 Page 5 of 9 complaint case.
12. I may note that the Hon'ble Supreme Court of India in Subramanium Sethuraman Vs. State of Maharashtra, 2004 13 SCC 324 has dealt with this aspect directly and held as follows:
From the above, it is clear that the larger Bench of this Court in Adalat Prasad's case did not accept the correctness of the law laid down by this Court in K.M.Mathew's case. Therefore, reliance on K.M.Mathew's case by the learned counsel appearing for the appellant cannot be accepted nor can the argument that Adalat Prasad's case requires reconsideration be accepted. The next challenge of the learned counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted. The case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion. As observed by us in Adalat Prasad's case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the Cr. Rev. No. 39/2018 Page 6 of 9 trial of a summons case.
13. This decision in Subramanium Sethuraman (Supra) has been cited with approval in the 5 Judges Bench decision of the Hon'ble Supreme Court in Re Expeditious Trial of Cases under Section 138 of NI Act, 1881 decided on 16.04.2021.
14. In fact, the Bench comprising of 5 Hon'ble Judges of the Apex Court was urged to reconsider the law as laid down in the decision in Adalat Prasad Vs. Rooplal Jindal, 2004 7 SCC 338 and Subramanium Sethuraman (Supra), but the Hon'ble Supreme Court in para no.21 of the decision has held that the said decisions "do not warrant any reconsideration". The court further held that the decision in Meters and Instruments Private Ltd. & Anr Vs. Kanchan Mehta, Criminal Appeal No. 1731/2017 decided on 05.10.2017, so far it conferred the power of the Trial Court to discharge the accused was not good law. The Hon'ble Supreme Court has reiterated that Section 258 of Code is not applicable to the complaints under Section 138 of NI Act, as the said Section only applies to cases instituted otherwise than on complaint. The language of Section 258 of Cr.PC specifically excluded criminal complaint cases and the Hon'ble Supreme Court of India had to reiterate/clarify the correct proposition of law in the said decision.
15. What applies to a complaint under Section 138 of NI Act is also applicable to the other complaint cases unless otherwise directed by the Code.
16. The counsel appearing for the respondent has relied upon 2 decisions, taking a contrary view. The first is the decision Cr. Rev. No. 39/2018 Page 7 of 9 of the Hon'ble Supreme Court in Bhushan Kumar & Anr Vs. State (NCT of Delhi) & Anr, AIR 2012 SC 1747, counsel has relied upon an observation of the Hon'ble Supreme Court in the said case that the accused could always be discharged at the stage of 251 of Cr.PC if the material against him was considered to be deficient. However, the observation made by the Hon'ble Supreme Court cannot be read out of context. Firstly, the said case was arising out of a chargesheet. Therefore, firstly, the case was not a complaint case. Secondly, it was a warrants triable case and not summons triable case as Section 420 of IPC had also been invoked in the said case and therefore, the reference to Section 251 of Cr.PC in the said decision has to be read in correct perspective, inasmuch as, the offence under Section 420 of IPC, where a chargesheet is filed by the police, would be warrants triable. Therefore, the conclusion of the Hon'ble Supreme Court was perfect, inasmuch as, the chargesheet filed before the Magistrate under Section 420 of Cr.PC and summoning order, thereafter, could be revisited at the stage of framing of charge. The decision of the Ld. Single Judge of the Delhi High Court in Urrshila Kerkar Vs. Make My Trip (India) Private Ltd., CRL.M.C. No. 2598/2012 decided on 18.11.2013, although, refers to the said decision in Bhushan Kumar (Supra), it makes no reference to the earlier decision of the Hon'ble Supreme Court in Subramanium Sethuraman (Supra). Further in view of the recent pronouncement by a larger Bench of the Hon'ble Supreme Court upholding the ratio laid down in Subramanium Sethuraman (Supra) impliedly over rules the decision in Urrshila Kerkar (Supra). All other views, contrary to the said decision of a 5 judges bench of the Apex Court, cannot be Cr. Rev. No. 39/2018 Page 8 of 9 followed.
17. Therefore, I hereby hold that Magistrate had no power to discharge the accused and the impugned order is liable to be set aside and is accordingly, set aside.
18. Revision petition disposed of accordingly.
19. TCR be sent back.
20. Revision file be consigned to Record Room.
Dictated in the open court (Harjyot Singh Bhalla)
on 28.07.2023 ASJ-04, New Delhi
Cr. Rev. No. 39/2018 Page 9 of 9