Ram Bhagat vs State of Punjab

V.K. Bali, J.

This petition has been filed under Section 482 of the Code of Criminal Procedure so as to quash proceedings whereby second trial of the petitioner is said to have been initiated and further prayer of the petitioner is to quash Annexure P2 dated 16th January, 1995 whereby the learned Sub Divisional Judicial Magistrate, Kharar, adjourned the case to 1st February, 1995 for consideration of charge.

Brief facts on which the relief indicated above is sought reveal that sample of some food item was taken from the shop of the petitioner on 22nd August, 1991. Food Inspector filed the complaint on 22nd November, 1991. On 23rd August, 1991 report of analyst was received where as report of Contral Food Laboratory, Mysore, was received on 30th October, 1992. The charge against the petitioner was framed on 27th, March, 1993. The prosecution concluded evidence on 24th September, 1993. On 21st January, 1994 request for withdrawal of the complaint was made. The accused also made a statement that he had no objection if the complaint is dismissed as withdrawal with permission to file a fresh one on the same cause of action. The Court permitted withdrawal of the complaint, acquitted the accused and permitted the prosecution to file the complaint once again. This order was passed on 21st January, 1994. The operative part of the order reads as under:

''In view of it, the complaint is allowed to be returned to the complainant alongwith original documents and the accused is acquitted of the offence charged. There is no bar to file a fresh complaint after making some amendments in the complaint against the accused. File be consigned to the record room."

It is clearly mentioned in the order that the petitioner made a statement that he had no objection if the complaint was dismissed as withdrawn with permission to file fresh one on the same cause of action. The second complaint with amendment was filed and the Magistrate adjourned the case on 16.1.1995 for consideration of charge to 1.2.1995. The present petition was filed for the relief as indicated above.

The sole contention of Mr.P.S. Sidhu, learned counsel representing the petitioner on the last date when the matter was heard was that once the petitioner has been acquitted no second proceedings could possibly be initiated against him. He was however confronted with the statement of the petitioner having no objection when the compliant was dismissed as withdrawn with permission to file fresh one on the same cause of action and also in the wake of the application moved by the prosecution and admission made by the petitioner. The word acquittal was wrongly mentioned by the learned Magistrate and with a view to do justice between the parties, this Court could suo motu in its powers under Section 482 of the Code of Criminal Procedure detele the word ''acquittal'' in order Annexure P1 and substitute it by ''discharge''. Counsel sought an adjournment to study the matter. He has, however, chosen not to appear today and for the obvious reason that he is unable to meet with the contention raised by Mr. Masih, Assistant Advocate General, Punjab.

The order dated 21st January, 1994 clearly indicates that an application was moved by Public Prosecutor to the effect that the complaint may be allowed to be withdrawn with permission to file a fresh one incorporating the report of the Contral Food Laboratory, Mysore. In these circumstances, the concerned Magistrate ought to have discharged the accused and not acquitted him. This Court is of the view that provisions contained in section 482 of the Code of Criminal Procedure vest this Court with the powers to set aside a patent illegal order if the demand of justice may so require. That being so, the word ''acquittal'' mentioned by the Magistrate in his order dated 21st January, 1994 (Annexure P1) be substituted with the word ''discharge''. That being so, the very basis on which the petition is based stands knocked out. Consequently, Criminal Miscellaneous Petition is dismissed.