ORDER
S. Padmanabhan, J.
1. C.C. No. 238 of 1981 on the file of the Judicial First Class Magistrate, Alwaye was instituted on a complaint filed by the Food Inspector, Alwaye against the revision petitioner as the sole accused for having exposed for sale and sold adulterated food article. His case is that he is entitled to protection under Section 19(2), Prevention of Food Adulteration Act, having purchased the food item under invoice from a firm, K. J. Thomas and Brothers, a wholesale dealer, of which one Mr. K. J. Thomas is the managing partner who is in charge of, and responsible to, the company for the conduct of its business. On his application under the provisions of Section 20A. K. J. Thomas was impleaded as the second accused and the firm represented by the same K. J. Thomas was impleaded as third accused. K. J, Thomas entered appearance pursuant to process received from Court in his personal capacity as second accused and representing the third accused firm. Then he moved a petition to delete his name as the second accused on the plea that the firm represented by him is an accused and therefore he need not be an accused in his personal capacity. By order dt. 3-2-1984 the Magistrate allowed the prayer and deleted second accused from the party array. Vendor who is the first accused seeks to revise that order
2. When sale of adulterated food is proved, the only successful defence that is available to the vendor is that under Section 19(2) that he purchased the article of food-
(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer;
(ii) in any other case, from any manufacturer, distributor or dealer;
with a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly stored and that he , sold it in the same state as he purchased it.” It was by way of this defence that he moved the Court since the Food Inspector has not taken steps for that purpose.
3. When at any time during the trial of any offence under the Prevention of Food Adulteration Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, if the Court is satisfied on the evidence, that such manufacturer, distributor or dealer is also concerned with that offence, the Court has no other option but to proceed against such manufacturer, distributor or dealer. This is notwithstanding the provisions of Section 319(3), Criminal P. C. and Section 20 of the Act, as though the prosecution has been instituted against him also as provided under Section 20. Even if the manufacturer, distributor or dealer is not present in Court and even without a complaint or written consent as contemplated in Section 20, the Court is empowered under Section 20-A of the Act to proceed against the manufacturer, distributor or dealer by way of joint trial along with the vendor. That means, in an appropriate case the Court is given the power and duty to implead the manufacturer, distributor or dealer as a co-accused along with the vendor and try him as an accused.
4. It is in exercise of this power that the Magistrate, on the application of the revision petitioner, impleaded the dealer as the third accused. Process was also issued. That means the Magistrate had the satisfaction that the dealer is also concerned with the offence. This is notwithstanding anything contained in Section 20 that no prosecution shall be instituted except by or with the written consent of the Government or a person authorised in that behalf. When process is issued the legal fiction is that the Court applied its mind not only for taking cognizance but also for proceeding against such person as is provided in Section 204, Cr.P.C. on the basis that there is sufficient ground for proceeding.
5. When the dealer, distributor or manufacturer is a company, Section 17 of the Act provides that not only the company but any person who has been nominated to be in charge of, and responsible to, the company for the conduct of the business of the company, or where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, also shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. It was on the basis of this provision arid on the required satisfaction under Section 20-A that the managing partner was impleaded in his personal capacity as the second accused over and above in his capacity representing the third accused firm. Section 17 fixes personal liability for such person for the offence when he is impleaded and process is issued to him the position is that he was made an accused and the Court decided to proceed against him as if there is sufficient ground for proceeding. Thus this is a case in which accused 2 and 3 were made accused and the Court proceeded against them as accused:
6. It is true that by impleading and proceeding against the manufacturer, distributor or dealer the Court only considers or satisfies that he is also concerned with the offence or that there is sufficient ground to proceed against him and not to decide that he is guilty. A person having liability under Section 17( 1) assumes the character of an individual offender and an accused. As held in Adhikari v. Food Inspector 1965 Ker LT 548 : 1965 (2) Cri LJ 775 such a person could be brought to justice for the offence for which he is personally liable over and above the liability of the company only if he has been personally prosecuted. Then only it is open to him to prove his innocence, if any, under the proviso to Section 17(1) that the adulteration, if any, was without his knowledge and that he exercised all due diligence to prevent the commission of such offence. As held in Kisan v. State of Maharashtra Section 17(2), Prevention of Food Adulteration Act, makes the absent accused vicariously guilty if-
it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of the other partner.
7. This is a warrant case instituted otherwise than on a police report in which process has been issued to accused 2 and 3 on the necessary satisfaction and they entered appearance as accused. Under Section 244 of the Code in such a case where the accused appears of is brought before the Magistrate, the Magistrate has to proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. After process is issued the question of discharging the accused will arise only after recording such evidence and that too only under Section 245(1) on the ground that no case has been made out which, if unrebutted, would warrant his conviction. Of course in appropriate cases even without recording all such evidence the Magistrate can discharge the accused under Section 245(2). That is only when the charge is considered groundless for reasons to be recorded. Generally that may be in cases where the Magistrate is satisfied from part of the evidence recorded or for other reasons that there is no useful purpose in proceeding. Such contingencies have not arisen in this case. In other cases the Magistrate will have to frame charge under Section 246 and proceed in accordance with Sections 246, 247 and 248.
8. The Magistrate has not stated any provision of law under which he passed the impugned order deleting the second accused. It was simply said-
As the firm is represented as requested by the first accused the deletion of K. J. Thomas in his personal capacity will not cause any prejudice to the first accused. Hence K. J. Thomas impleaded as accused 2 in his personal capacity is deleted from the party array. And K. J. Thomas though same person representing the firm K. J. Thomas and Brothers appeared as third accused will be placed as the second accused hereafter.
I am not aware and I was not shown any provision of law under which the Magistrate could have so deleted an accused. It appears . that under an innocent guise the second accused was only consciously taking advantage of the ignorance of the Magistrate in order to escape a possible conviction in his personal capacity. Otherwise such a move was not necessary because there is no other inconvenience or burden in having his name there so long as he has to contest the case on behalf of the firm.
9. Though there are provisions for impleading accused in criminal proceedings in appropriate cases, there is no provision in a criminal trial, as in a civil case, to delete the name of an accused or to remove him from party array. A person is made an accused only on the allegation that he has committed an offence which is punishable. The object is to bring the offender to justice. As in a civil case there is no question of necessary, desirable or pro forma parties in a criminal case. When a person becomes an accused and is brought before Court he could cease to be an accused only by any one of the methods provided by law, namely, dismissal of the complaint, discharge, acquittal or release or such other method, if any, provided by law.
10. By deleting the name of the second accused the revision petitioner who is the first accused may not be prejudiced because his defence under Section 19(2) of the Act could be effectively established with the dealer firm alone on the array of accused even without the managing partner being there in his personal capacity. But the prejudice of the first accused alone is not the question. It is a question of bringing an offender to justice and it was the duty of the Food Inspector to do so. What I fail to understand is why the Food Inspector has not come forward to challenge the order. Of course before me the Food Inspector entered appearance through counsel and strongly supported the petitioner in challenging the order. The object and purpose of making a person an accused in a case is not to avoid prejudice to another accused or any other person. It is only because there are reasons to proceed against him for having committed an offence and to bring him to justice in relation to that offence. Conviction, acquittal or release, or discharge or any other method of exonerating him from liability for the offence is also not based on prejudice or absence of prejudice to a co-accused or anybody else. It is only based on proof of guilt or innocence or other reasons of legal or technical nature provided by the laws. Exoneration of the second accused merely on the ground that it will not prejudice the first accused is a proposition not known to law. The Magistrate seems to have gone under a wrong impression that the sole purpose of making Thomas the second accused was to facilitate the defence under Section 19(2) to the first accused and when that defence is available when the firm is a party the deletion of second accused is only a formality.
11. When an accused against whom there is a prima facie case of complicity or concern in an offence and against whom the Magistrate issued process on the satisfaction that there is sufficient ground for proceeding is brought before Court it is the duty of the Magistrate to proceed against him under the provisions of Sections 244 to 248 of the Code which are applicable since this is a warrant case instituted otherwise than on a police report. Evidence has not been recorded under Section 244(1) and therefore there is no question of proceeding under Section 245(1). The charge was not considered groundless and the Magistrate did not proceed under Section 245(2) also. When the ingredients under Section 20-A, Prevention of Food Adulteration Act, were satisfied, as in this case, it was the imperative duty of the Magistrate not only to implead the concerned persons but also to proceed against them according to law because the object of law and the existence of courts is for dispensation of justice which includes bringing offenders to justice in appropriate cases. That object could be achieved only when the courts proceed according to law by giving the prosecution an opportunity to prove its case and if necessary to give the defence also the opportunity to establish the defence. Deleting an accused without doing any of these things is not dispensation of justice according to law for which courts are existing. The Magistrate failed to realise the fact that deletion of the name of the second accused had the effect of exonerating him from liability for the alleged offence without facing a trial and proving his innocence. The order is illegal.
12. The criminal revision petition is allowed and the impugned order is set aside. The Magistrate will proceed with the case according to law against all the three accused by resorting to a de novo trial which is necessary when new accused are impleaded under Section 20-A. The case will be tried and disposed of within three months of the receipt of records. Office will remit the records forthwith.