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Judgment
Present application has been filed invoking the inherent powers of this Court under Section 482 of Cr. P. C. challenging the order of issuance of
process against the present applicant in S. C. C. NO. 942/2013 by Judicial Magistarate First Class, Parali, Dist. Beed and to challenge the Judgment
and order of rejection of Criminal Revision No. 24/2014 by Additional Sessions Judge, Ambajogai on 14.10.2015 for the offence punishable under
Section 18(1), 36(1) of Legal Metrology Act, 2009 read with Rule 6(1)(2) of Legal Metrology (Packaged Commodities) Rules 2011.
Respondent No. 2 has filed complaint bearing S. C. C. No. 942/2013 before learned Judicial Magistrate First Class, Parali. It was contended
that the present applicant / original accused has committed offence punishable under Section 18(1), 36(1) of Legal Metrology Act, 2009 read with
Rule 6(1)(2) of Legal Metrology (Packaged Commodities) Rules 2011. After the presentation of the complaint, order of issuance of process was
not passed by the learned Magistrate. But, notice was issued to the accused for appearance and therefore, said fact was challenged before the
learned Additional Sessions Judge, Ambejogai by way of criminal revision under Section 397 of Cr. P. C. It was specifically contended in the
revision that verification of the complainant has not been taken nor order of enquiry under Section 202 of Cr. P. C. was passed by the learned
Magistrate. The procedure that was adopted by the learned Magistrate was wrong and therefore, the request was made to interfere. The learned
Additional Sessions Judge, Ambajogai after hearing both sides dismissed the revision. It will not be out of place to mention here that the prosecution
had contended before the revisional Court that the procedure that is adopted by the learned Magistrate was legal and proper.
In the present application, the applicant original accused has contended that the learned Magistrate has not passed any specific order of issuance
of process, yet. On the basis of the Roznama it can be seen that the notice was directed to be issued to the accused and accordingly, the notice was
issued. Thereafter, the matter was kept for the appearance of accused before the learned Magistrate. Learned Magistrate failed to consider that
the address of the accused was clearly indicating that the accused was not residing within the jurisdiction of learned Magistrate and therefore,
mandatory part of the provision under Section 202 of Cr. P. C. ought to have been complied with before issuing the process under Section 204 of Cr.
P. C. It is also submitted that the learned Additional Sessions Judge went wrong in holding that whatever procedure has been adopted by the learned
Magistrate is correct and he has taken cognizance of the matter.
Heard learned Advocate Mr. N. S. Ghanekar for the applicant / original accused and learned A. P. P. Mr. S. P. Sonpawale for the State. The
learned Advocate for the applicant has reiterated the grounds those have been mentioned in the application. The learned A. P. P. has submitted that
specific order was not passed by the learned Magistrate by taking cognizance and there is no question of setting aside any such order. Whatever
procedure was adopted by the learned Magistrate was correct.
It is to be noted that the said complaint was filed by Food, Supplies and Consumer Protection Department (Legal Metrology Organization of the
Govt. of Maharashtra). The complainant therein was serving as an Inspector and during the course of his duty when he found that certain rules
have not been followed, he had presented that complaint. On the presentation of the complaint, an endorsement has been taken by the learned
Magistrate that the complaint was presented by the complainant who is Inspector, Legal Metrology (W & M) ParaliÂVaijnath, Dist. Beed ought to
have registered as summary criminal case. Thereafter, it appears that no order was passed on the complaint. However, copy of Roznama shows
that directly the matter was posted for appearance of the accused and for that purpose, notice was issued to the accused. When the complaint was
filed under Section 200 of the Cr. P. C., as per the said provision the Magistrate has to take verification i.e. examination of the complainant. However,
as per the proviso when the complaint is made in writing by a public servant acting or purporting to act in the discharge of his official duties or a Court
has made the complaint, the Magistrate need not examine the complainant and his witnesses. Therefore, the Magistrate was right in not examining
the complainant who was the Inspector under Legal Metrology Organization. At the time of presentation only an endorsement is required to be
taken and the said endorsement about the presentation of the complaint can not be equated with taking cognizance. Presentation of the complaint is
under Section 200 of Cr. P. C., whereas the issuance of the process is under Section 204 of Cr. P. C. This fact is mentioned here, because the
learned Additional Sessions Judge after referring what has been endorsed to the complaint, has come to the conclusion that the Magistrate has taken
cognizance of the written complaint filed by the public servant. At the cost of repetition, it is observed that the presentation and registration of the
complaint is different from taking cognizance of the matter as contemplated under Section 204 of Cr. P. C. When the complaint is presented, the
immediate action is to record the verification or in certain special categories it can be waived. But, thereafter, the steps under Section 201 and 202
are required to be taken. Both these sections are added here :
Section 201 : Procedure by Magistrate not competent to take cognizance of the case :
If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, Â
(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (b) If the complaint is not in writing,
direct the complainant to the proper Court.
Section 202 : Postponement of issue of process : Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance
or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused and either inquire into
the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether
or not there is sufficient ground for proceeding.
After the procedure that is contemplated under Section 200 of Cr. P. C. is taken up, the Magistrate is required to consider that whether he is
competent to take cognizance of the offence or not. If the complaint is in writing and the Magistrate feels that he is not competent to take cognizance
of the offence, then return the complaint for its presentation to proper Court with an endorsement to that effect and if the complaint is not in writing
and direct the complainant to go proper Court. Here in this case, the complaint was in writing and the cognizance of the offence could have been
taken by the concerned Magistrate. Taking into consideration other aspects involved in the matter, therefore, the learned J. M. F. C. was dealing
with S. C. C. 942 of 2013 was not concerned with Section 201 of Cr. P. C. Thereafter, stage under Section 202 of Cr. P. C. would come which is in
respect of the postponement of issuance of process. It provides any Magistrate on receipt of a complaint of which he is authorized to take
cognizance if he thinks fit and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone
the issue of process against the accused and either enquire into the case himself and direct the investigation to be made by a police officer or by such
other persons as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Here in this case, the accused
was admittedly residing beyond the jurisdiction of learned J. M. F. C., Parali. Therefore, mandatory part which has been inserted by Act of 25/2005
Section 19 w. e. f. 26.6.2006 ought to have been adhered to. The said postponement of issuance of process is mandatory, because the accused is
residing beyond the area of jurisdiction of learned Magistrate because the said provision proceeds with the word “shallâ€. The record of the case
which has been produced on record as well as recitals in Judgment in the Criminal Revision and Advocate would show that the learned Magistrate
had not postponed the issuance of process, though, it was apparent that the accused was not residing within the jurisdiction of learned Magistrate.Â
Even, the learned Magistrate has not passed any order in specific words that he is taking cognizance of the matter that means he was adhering to the
procedure to the Section 200 of Cr. P. C. No doubt Section 204 does not mandate the Magistrate to explicitly state reasons for issuance of
summons. But, that does not mean that he is not supposed to pass a specific order. It was expected that a specific order ought to have been issued
calling upon the accused to answer the charge or complaint punishable under Section 18(1), 36(1) of Legal Metrology Act, 2009 read with Rule 6(1)
(2) of Legal Metrology (Packaged Commodities) Rules 2011. Without passing any such order on the complaint only with Roznama, the next stage
has been mentioned as appearance of accused and pursuant to that, summons was issued to the accused. The learned Additional Sessions Judge,
Ambajogai went wrong in observing that the learned Magistrate had applied his mind before summons was issued. In fact, there was no formal
order of issuance of summons on the complaint. That means neither a specific order of taking cognizance stating that he is issuing process against the
accused or simply by saying issue notice was ever passed by the learned Magistrate. Taking cognizance of an offence is a very serious business
which contemplates application of judicious mind and it can not be only on the basis of the observations or writings in the Roznama. Therefore, it
has been observed by the learned Additional Sessions Judge, Ambajogai supporting the action taken by the learned Magistrate as amounting to taking
cognizance of the offence punishable under Section 204 of Cr. P. C. is not a proper and legal procedure.
When proper and legal procedure was not adhered to by the learned Magistrate, in fact, the jurisdiction was with the learned Additional Sessions
Judge under Section 397 of Cr. P. C. to call for and examine the record of any proceeding before any inferior Criminal Court for the purpose of
satisfying himself as to the correctness, legality or propriety of any finding. Learned Additional Sessions Judge failed to exercise his powers under
Section 397 of Cr. P. C. when there was apparent wrong committed in the procedure that was adopted by the learned Magistrate. Therefore, the
powers of this Court under Section 482 of Cr. P. C. are required to be exercised. Since the procedure is not adhered, the necessary directions can
be given to the learned Magistrate to adopt the proper procedure and then proceed with the matter.
Hence, following order;
(i)Application is hereby allowed.
(ii)The order passed in Criminal Revision No. 24/2014 by Additional Sessions Judge, Ambajogai on 14.10.2015 is hereby set aside. The notice
issued to the accused on 20.12.2013 is hereby set aside.
(iii)The learned Magistrate is directed to adhere to the proper procedure as stated above and thereafter proceed with the matter.