Delhi District Court
Sanjay Yadav & Anr. vs . Food Safety Officer 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:
SANJAY YADAV & ANR. VS. FOOD SAFETY OFFICER
CNR No. DLND01-013690-2019
Cr. Rev. No. 475/2019
1. SANJAY YADAV
2. SAGAR RATNA RESTAURANTS PVT. LTD.
(through its Authorized Representative)
Both having Office at:
C-7, 3rd Floor, Malviya Nagar,
New Delhi-110017 ....Revisionists
Versus
FOOD SAFETY OFFICER
Department of Food Safety
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035
...Respondent
Date of Institution: 02.08.2022
Date of decision : 28.07.2023
Cr. Rev. No. 475/2019 Page 1 of 7
JUDGMENT (ORAL)
1. Vide this judgment, I propose to dispose of the present criminal revision filed against the impugned order dated 25.03.2019 passed by Ld. ACMM-01, PHC, New Delhi.
2. Arguments heard. TCR perused.
3. While hearing arguments on the present revision petition on the previous date, I have passed the following order, raising an objection to the maintainability of the application seeking discharge in the first place in the Trial Court:
This is a revision petition, challenging the order framing charge dated 25.03.2019 under the provisions of The Food Safety and Standards Act, 2006 (hereinafter referred to as the FSS Act). The Revisionist had also moved an application seeking discharge under Section 245 of Cr.PC, which application was also dismissed by the Trial Court vide the same order.
The present case seems to be covered by Section 59 (i) of the Act, as is evident from the bare reading of para 17 of the impugned order. The said provision provides for a punishment which may extend to 6 months and also with fine, which may extend to Rs.1,00,000/-.
Further, Section 73 of the Act being relevant reads as follows:
73. Power of court to try cases summarily.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences not triable by a Special Court, shall be tried in a summary way by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far Cr. Rev. No. 475/2019 Page 2 of 7 as may be, apply to such a 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.
Therefore, if one was to go by the Cr.PC, the present case falls under the category of summons triable cases but the statute i.e. FSS Act further empowers the Magistrate to try cases summarily.
In these circumstances, order dated 25.03.2019 cannot be treated as an order directing framing of charge, inasmuch as, no charge has to be framed in the cases like the present one, 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 application under Section 245 of Cr.PC seeking discharge of the accused, which was dismissed by the impugned order was even maintainable before the Ld. MM 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, whether there is any provision for discharge of the accused at any stage before Cr. Rev. No. 475/2019 Page 3 of 7 conclusion of evidence in a complaint case.
Therefore, the revision itself would become not maintainable if there was no provision for discharging accused at the relevant stage.
This preliminary question arises for consideration at this stage itself and is accordingly framed and parties are directed to advance arguments on the said aspect on the next date of hearing. List on 21.03.2023.
4. Ld. Counsel Sh. Rahul Mehta, has appeared for appellant and submitted that he could not find any judgment dealing with the proposition raised by this court. However, 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 Cr. Rev. No. 475/2019 Page 4 of 7 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 trial of a summons case.
5. 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.
6. 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.
7. What applies to a complaint under Section 138 of NI Act is Cr. Rev. No. 475/2019 Page 5 of 7 also applicable to the other complaint cases unless otherwise directed by the Code.
8. In another revision petition, which was also listed for arguments today, the counsel appearing in the said case has relied upon 2 decisions, taking a contrary view. The first is the decision 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 Cr. Rev. No. 475/2019 Page 6 of 7 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 cannot be followed.
9. Therefore, I hereby hold that Magistrate had no power to discharge the accused. The order calls for no interference.
10. Revision petition disposed of accordingly.
11. TCR be sent back.
12. 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. 475/2019 Page 7 of 7