CASE NO.: Appeal (crl.) 1152 of 1999 PETITIONER: OMPARKASH SHIVPRAKASH RESPONDENT: K.I. KURIAKOSE AND ORS. DATE OF JUDGMENT: 01/11/1999 BENCH: K.T. THOMAS & M.B. SHAH JUDGMENT:
JUDGMENT
1999 Supp(4) SCR 269
The Judgment of the Court was delivered by
THOMAS, J. Leave granted.
Appellant is a firm. It has now been impleaded as the 6th accused in a
prosecution case launched by the Food Inspector, Cochin Corporation, for
the offence under Section 16(1) of the Prevention of Food Adulteration Act,
1954 (for short “the Act”). Appellant moved the High Court under Section
482 of the Code of Criminal Procedure (for short “the Code”) to quash the
order by which the appellant was impleaded as an accused in the criminal
case, A learned Single Judge of the High Court dismissed the petition as
per the order which is now being challenged before us.
The skeletal facts, for dealing with the questions raised, are these:
Food Inspector of Cochin Corporation filed a complaint before a judicial
magistrate court at Ernakulam, against five persons shown as accused
alleging that on 16.9.1995 another Food Inspector, who was attached to the
mobile Vigilance squad, had visited the business premises of the first
accused and took sample of 750 grams of Toor Dhall and divided it into
three parts as prescribed by the Rules; when one of the parts of the sample
was analysed by the Public Analyst it was found not conforming to the
standards prescribed for Toor Dhall and that it contained Kesari Dhall
which is a prohibited substance: As the first accused told the Food
Inspector that he purchased the article from second accused the Food
Inspector sent a letter to the second accused (third accused is the
Managing Partner of the second accused firm). In reply to the letter the
third accused informed that he purchased the food article from the 4th
accused firm (of which 5th accused is the person in charge of the
business). Thus the Food Inspector has arrayed all the above five persons
as accused in the complaint
The 5th accused soon after entering appearance in the court filed a
petition to implead the appellant firm as an accused in the case on the
premise that 5th accused purchased the Toor Dhall from the appellant
company. On 23.1.1998 an order was passed by the learned magistrate on the
said petition on the following lines :
“Heard the Petitioner and the other accused persons. Since A.P.P. is not
available, he could not be heard. However the bill No, OS/td/046 dated
7.4.1995 produced by the petitioner shows that they purchased Toor Dhall
from M/s. Omprakash Shivprakash Akola. Hence, for the ends of justice it is
necessary that they shall be impleaded as an accused in this case. Hence
the petition is allowed and M/s. Omprakash Shivprakash Ltd., Kiranabazar,
Akola, represented by Sanjay Kumar is impleaded as an accused in this case.
Issue summons to him.”
Learned Single Judge repelled the contention of the appellant that it could
not have been impleaded at that stage and in support of such stand learned
Single Judge relied on the decisions in M/s Bhagwan Das Jagdish Chander v.
Delhi Administration, [1975] I SCC 866 and Delhi Cloth and General Mills
Co. Ltd. v. State of M.P. and Ors., [1995J 6 SCC 62, besides two other
decisions of the same High Court. Learned Single Judge has observed thus :
“It is clear from the above noted decisions of the Supreme Court and this
Court that the manufacturer can be impleaded at any stage of the trial and
it need not be after framing charge under Section 246 of the Code of
Criminal Procedure, if the case is tried as a summons case, instituted
otherwise than on a police charge. Therefore, the arguments advanced by the
senior counsel of the petitioner, relying upon the decision of a two judge
bench of the Supreme Court while considering the commencement of trial
under general provisions of the Criminal Procedure Code, has no application
to the commencement of trial of a case for the purpose of the special
provision in Section 20-A of the P.F.A. Act. Hence, the contention of the
petitioner that Annexure-C order passed by the learned Magistrate,
impleading him as accused before commencement of the trial in this case is
not sustainable is of no force,”
It can be pointed out now that the plea of any of the accused was not
recorded nor even asked by the magistrate before he ordered impleadment of
the appellant Power of the court to implead the manufacturer, distributor
or dealer, in cases involving offences under the Act, is envisaged in
Section 20-A of the Act. It reads thus :
“Where at any time during the trial of any offence under this Act alleged
to have been committed by any person, not being the manufacturer,
distributor or dealer of any article of food, the court is satisfied, on
the evidence adduced before it, that such manufacturer, distributor or
dealer is also concerned with that offence, then, the court may,
notwithstanding anything contained in sub-section (3) of Section 319 of the
Code of Criminal Procedure, 1973 (2 of 1974), or in Section 20 proceed
against him as though a prosecution had been instituted against him under
Section 20.”
The above provision overrides the ban contained in Section 20 of the Act
that no prosecution shall be instituted for the offences under the Act
except by or with the consent of the authorities mentioned in the Section,
The essential conditions for invoking the power under Section 20-A are that
(1) the trial should have begun already; (2) the trial must be of any
offence under the Act allegedly committed by a person other than the
manufacturer or distributor or dealer of the food article; (3) the court
must have been satisfied that such manufacturer or dealer or distributor is
also concerned with the offence; (4) such satisfaction must have been
formed “on the evidence adduced before the court.”
Section 319 of the Code empowers the court to proceed against any person
who is not being made an accused already, if it appears from the evidence
collected in the inquiry or trial of an offence that such person has
committed an offence for which he could be tried together with the already
arraigned accused. One of the differences between Section 319 of the Code
and Section 20-A of the Act is that, while in the former even if it appears
to the court from the evidence (either during inquiry or trial of the
offence), that another person is to be tried along with the already
arraigned accused, then the court can proceed against that other person,
while in the latter the satisfaction of the court that such manufacturer
(distributor or dealer) is also concerned with that offence must be
gathered from “the evidence adduced before it during the trial”. In other
words, the power under Section 20-A cannot be invoked until the trial
begins and after the trial ends.
When does the “trial” begin as for an offence under the Act? The word
“trial” is not defined either in the Act or in the Code. However, the Code
has distinguished the trial from inquiry as could be noted from Section
2(g) of the Code wherein the word “inquiry” is defined thus :
“Inquiry means every inquiry, other than a trial, conducted under this Code
by a Magistrate or Court.”
The term “trial” cannot be given a fixed meaning to be applied in all cases
uniformly. The connotation of that word changes with the difference in
which the term is employed in a particular provision of any statute, This
Court has said in The State of Bihar v. Ram Naresh Pandey, AIR (1957) SC
389 = [1957] SCR 279 thus:
“The words `tried’ and `trial’ appear to have no fixed or universal
meaning. No doubt, in quite a number of sections in (he Code to which our
attention has been drawn the words `tried’ and `trial’ have been used in
the sense of reference to a stage after the inquiry. That meaning attaches
to the words in those sections having regard to the context in which they
are used. There is no reason why where these words are used in another
context in the Code, they should necessarily be limited in their
connotation and significance. They are words which must be considered with
regard to the particular context in which they are used and with regard to
the scheme and purpose of the provision under consideration.”
We will examine the relevant provisions to ascertain as to when the trial
in a case involving offences under the Act would commence. Section 16-A of
the Act empowers a Judicial Magistrate of First Class to try the offence
under Section 16(1) of the Act in a summary way. Chapter XXI of the Code
deals with summary trials of which Section 262 says that the procedure
specified for trial of summons cases shall be followed for summary trial
subject to some variations. Chapter XX is titled “Trial of Summon Cases by
Magistrate”. Section 251 of the Code is the commencing provision of that
Chapter, It requires that when the accused appears or is brought before the
magistrate the particulars of offence shall be stated to him and he shall
be asked whether he pleads guilty or not. Section 254( 1) of the Code says
that if the magistrate does not convict the accused he shall proceed to
hear the prosecution and “take all such evidence”.
The above scrutiny of the relevant provisions reveals that the trial of
offences under the Act begins when the magistrate asks the accused whether
he pleads guilty or not as envisaged in Section 251 of the Code, if the
magistrate opts to hold summary trial. Hence, evidence in a trial under the
Act can be adduced only after recording the plea of the accused as
envisaged in the said section. Thus, it is clear that a magistrate can
implead any person under Section 20-A of the Act only after reaching the
stage envisaged in Section 254(1) of the Code.
As a matter of legal proposition this Court has clearly stated in M/s
Bhagwan Das Jagdish Chancier (supra) that “it is clear that the
contemplated action can only be taken during the course of the trial”. (The
said decision has been referred to by the learned Single Judge in the
impugned judgment.)
The other decision cited by the High Court in the judgment is Delhi Cloth
and General Mills Co. Ltd, (supra). In that case a three Judge Bench
considered yet another facet of Section 20-A of the Act. However, there is
no indication in the said decision that power under the Section could be
used at any stage before trial commences.
In Municipal Corporation of Delhi v. R. Sahai and ors. etc., AIR (1979) SC
1544 = [1979] 3 SCR 625, a two Judge Bench of this Court has stated that
the power under Section 20-A can be exercised only during trial. The
relevant facts in that case were that a magistrate acquitted an accused and
thereafter he issued notice to the manufacturer purportedly under Section
20-A of the Act. When the said manufacturer challenged the action of the
magistrate this Court laid emphasis to the words “during trial of any
offence”, and observed thus :
“The opening lines of Section 20-A clearly contemplate a contingency where
the discretionary jurisdiction under this Act can be exercised only during
the trial of any offence, that is to say, the stage at which the Magistrate
can exercise the discretion under this section must be before the trail has
concluded and ended in acquittal or conviction”
Thus the position is clear that power under Section 20-A cannot be invoked
before the stage of adducing evidence in the trial, nor can it be invoked
after the conclusion of the trial. In the present case, the magistrate has
chosen to exercise the power prematurely and hence the action is without
jurisdiction. We, therefore, set aside the impugned judgment of the High
Court and that of the Magistrate, However, we make it clear that this
judgment will not preclude the magistrate from considering the question
afresh at the appropriate stage.