G.S. Wagh Vs. Ananda Lahanu Dhonnar and anr. - Court Judgment

Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - 3. the learned advocate for the petitioner shri apte raised the only point that in the absence of the original complainant, the learned additional sessions judge, had no jurisdiction to hear the appeal as he failed to comply with section 385 sub-section (1) clause (iii) of the cr. therefore, the contention of shri kankaria must fail.deshpande, j.1. by this revision application, the original complainant desires to challenge the order of acquittal passed by the learned additional sessions judge, nasik in criminal appeal no. 149 of 1980 on a very limited ground. the order of acquittal was passed on 4th dec. 1981. it is unnecessary to narrate the whole facts in this case. one ananda lahanu dhonnar was the original accused in criminal case no. 2415 of 1979, which was instituted upon the complaint made by the food inspector, nasik municipal council at, nasik. the prosecution was founded on the alleged contravention of prevention of food adulteration act. respondent no. 1 accused was convicted for the offence punishable under section 7 (i) and (v) and section 16 (1) (a) (i) of the prevention of food adulteration act and sentenced to suffer rigorous- imprisonment for three months and to pay a fine of rs. 1,000/- and in default to suffer rigorous imprisonment for one month. this conviction was recorded by the learned magistrate on 29th sept. 1980.2. the original accused filed an appeal against this judgment of conviction being appeal no 149 of 1980 in the court of additional sessions judge, nasik. this appeal was finally heard by the learned additional sessions judge nasik and came to be allowed by him by his order as stated above. it appears that the learned additional sessions judge did not issue notice to the original complainant in this appeal and the appeal was heard in the absence of the original complainant, without notice being issued to him. finally, the appeal was allowed. it is against this appellate judgment and order of acquittal that present revision application is filed.3. the learned advocate for the petitioner shri apte raised the only point that in the absence of the original complainant, the learned additional sessions judge, had no jurisdiction to hear the appeal as he failed to comply with section 385 sub-section (1) clause (iii) of the cr. p., c. it is only on this short point that arguments are addressed by the learned advocate before me. the short question which arises for determination in this revision application is whether notice to the complainant is essential when the appeal is filed against the judgment of conviction. it appears that clause (iii) of sub-section (i) was introduced by the new amendment of the code. it is obvious that this case was originally instituted upon a complaint made by food inspector i. e, the petitioner. the cr. p.c. does not define the expression 'institution of case on complaint'. however, under section 190 criminal procedure code it is made clear that cognizance can be taken by the magistrate under certain circumstances. the learned magistrate can take cognizance of the offence upon receiving the complaint of facts which constitute offence, upon police report on such facts, upon information received from any person other than police officer or on his own knowledge that such offence has been committed. kindly see section 190. we are not concerned in this case with the third clause. admittedly, this is not a case filed by the police. this was a prosecution filed on the basis of a complaint made by the food inspector in the discharge of his duties. i find sufficient force in the contention of the learned advocate for the petitioner.4. as against this, the learned advocate for the respondent-original accused. shri kankaria pointed out that the food inspector being public servant as denned in section 21 of the i.p.c. is himself the prosecutor and the complaint in this case requires his consent for prosecution under section 20 of the prevention of food adulteration act. therefore, it must be held that the complainant in this case is no other person than the state itself. shri kankaria read out to me the provisions of section 10 which deals with the powers of the food inspector. i do not find either, the provisions of section 10 of the food adulteration act or section 20 of the said act can be pressed into service in support of this argument. normally, the prosecution by the state is initiated on a police report. in the absence of any such record, it is not possible to say that the prosecution in this case was initiated by the state. the contention of shri kankaria cannot be accepted because section 20 of the prevention of food adulteration act and section 10 of the said act do not deal with the nature of the prosecution. they only enjoin that the complaint which is filed requires the assent' of the state. it is obvious that the complaint still remains a complaint and it is with permission of the state that such complaint becomes valid document to initiate proceeding on the basis of the complaint, it must be held that the prosecution is commenced only on the basis of the complaint. therefore, the contention of shri kankaria must fail.5. i am also told at the bar that in this case, as a matter of fact, the prosecution was not conducted by any prosecutor appointed by the state. on the contrary, shri lele has appeared and conducted the case for the complainant. his vakalatnama is also on record. he was not the prosecutor appointed by the state. i am referring to this fact only to emphasise that in any event, the prosecution commenced in this case cannot be said to be state prosecution at all.6. on plain reading of section 385 sub-section (1) clause (iii) of the cr. p.c. the appellate court was bound to issue notice to the complainant as required by that section. admittedly, no such notice seems to have been issued to the complainant. so. the proceedings conducted' by the appellate court are vitiated by material irregularities. in the result. i set aside the acquittal order of the learned additional sessions judge, nasik passed in appeal no. 149 of 1980 and direct him to issue notice to the complainant and hear the appeal in accordance with law.7. in the result, the rule in this petition is made absolute. the judgment and order of acquittal is set aside and the matter is sent back to the learned additional sessions judge, nasik, who will restore it to file and hear the appeal after issuing notice to the original complainant.