1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.02.2011 CORAM: THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Crl.O.P.(MD)No.695 of 2011 and M.P.(MD) No.1 of 2011 1. T.Thangaraj 2. M.Muruga Raja ... Petitioners Vs. S.Marriappan ... Respondent PRAYER: This Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to call for the records in M.C.No.28 of 2010 on the file of learned Judicial Magistrate, Ambasamudram, Tirunelveli District and quash the same in the interest of justice. For Petitioners : M/s. C.Muthu Saravanan For Respondent : Mrs.S.Devasena Govt. Advocate (Crl.side) O R D E R This petition has been filed by the petitioners seeking to quash the proceedings initiated against the petitioners in M.C.No.28 of 2010 pending on the file of Judicial Magistrate, Ambasamudram. 2. Heard Mr.C.Muthu Saravanan, learned counsel for the petitioners and Mrs.S.Devasena, learned Government Advocate (Crl.side) appearing for the State. 3. The learned counsel for the petitioners would submit in his argument that the petitioners have been incriminated under Sections 24(1) and 24(5) of the Tamil Nadu Agriculture Produce Marketing (Regulation) Act, 1987 by filing a private complaint before the learned Judicial Magistrate, Ambasamudram which was taken on file in M.C.No.28 of 2010. He would further submit in his argument that the said filing of the complaint was made by the Supervisor of Regulated Marketing Committee, Sivagiri, Tirunelveli District and the said person is not competent to file a complaint under the provisions of the said Act and the G.O. issued thereon and the said act of taking cognizance of the learned Judicial Magistrate, Ambasamudram, Tirunelveli District is not in accordance with law and on that score itself it has to be quashed. He has also submitted that as per Section 58(2) of the said Act, the complaint can be made by the Director or any other Officer empowered by him in this behalf by a special order. He would further submit that the complainant was not so delegated or authorised by the Director, but he has presented the complaint without any authority. He would also submit that the authorisition given to the complainant for filing a complaint as stated in the complaint is ex-facie wrong and the said G.O. mentioned in the complaint as a G.O.Ms.No.679 Agriculture (A.M.3) Department, dated 01.12.1993 is only an authorisition given to the de-facto complainant viz., supervisor, to stop the vehicle and to check the contents of the https://hcservices.ecourts.gov.in/hcservices/ 2 vehicle only. He would further submit in his argument that the said authorisition will not ripen into an authorisition under Section 58(2) of the said Act. He would further submit in his argument that the said position of law has already been decided by this Court in the batch of writ petitions in W.P.Nos.3440 of 2005 and others dated 07.03.2006. He would also submit that this Court, on an earlier occasion had disposed of similar petition and had come to the conclusion that a Director or the delegate of Director alone has the authority to file complaint. He would cite a judgment of this Court reported in 2007(2) MLJ (Crl) 442 in A.Boominathan v. Regulated Marketing Committee for the said proposition of law. Therefore, he would request the Court that the complaint filed by the complainant in M.C.No.28 of 2010 on the file of learned Judicial Magistrate, Ambasamudram, Tirunelveli District may be quashed. 4. The learned Government Advocate (Crl.side) would submit in her argument that the position of law has been decided already by the judgments of this Court as pointed out by the petitioners and the competency of the complainant may be verified in accordance with law and suitable orders may be passed. 5. I have given anxious thoughts to the arguments advanced on either side. 6. It is not disputed that the complaint has been given by the Supervisor of the Regulated Marketing Committee, Sivagiri against the petitioners under Section 24(1) and 24(5) of the Tamil Nadu Agriculture Produce Marketing (Regulation) Act, 1987 and it was taken cognizance by the learned Judicial Magistrate, Ambasamudram, Tirunelveli District in M.C.No.28 of 2010. According to the complaint filed in the said case, the Supervisor was competent to file the said complaint as per the G.O.No.679 Agriculture (A.M.3) Department dated 01.12.1993. On a careful perusal of the said G.O., the said complainant was only authorised to stop the vehicle and check the contents of the vehicle therein. It does not authorise the Supervisor of the Regulated Marketing Committee, Sivagiri, Tirunelveli District to have the power of Director for filing any complaint. 7. According to the Section 58(2) of the Act, the complaint can be filed either by the Director or a person, who has been delegated with the said power by the said Director. It has been categorically pointed out by this Court in the judgment reported in 2007(2) MLJ (Crl) 442 in A.Boominathan v. Regulated Marketing Committee. The relevant passage would run as follows: 10. So far as the competency of the Director to file complaint is concerned, it is dealt with under Section 58(2) of the Act. Section 58(2) reads as follows: "No Court shall take cognisance of any offence punishable under this Act except on a complaint in writing made by the Director or any officer empowered by him in this behalf by Special Order." 12. According to the learned counsel for the petitioner, there was no notification empowering the Commissioner to act as a https://hcservices.ecourts.gov.in/hcservices/ 3 Director under Section 2(8) of the Act and therefore, the prosecution is vitiated for want of jurisdiction. In this case, the Government has directed Thiru Vikram Kappor, I.A.S. to hold full additional charge of the post of Director of Agricultural Marketing by G.O.Rt.No.2101 4.6.1999 as seen from Ex.P.14. Thereafter, by G.O.Rt.No.2199 dated 12.06.1999 sanction was accorded for the creation of a temporary post of Commissioner of Agricultural Marketing in the Supertime Scale of I.A.S. for a period of one year. Further, Thiru C.V.Sankar, I.A.S formerly Commissioner of Adi Dravidar and Tribal Welfare on return from leave is posted to act as Commissioner of Agricultural Marketing in the place of Vikram Kapoor, I.A.S. holding full additional charge. The Superintendent of Kumbakonam Marketing Committee was empowered by C.V.Sankar, I.A.S., Commissioner of Agricultural Marketing to file a complaint against the petitioner. 8. It has also been decided by this Court in the batch of writ petitions in W.P.Nos.3440 of 2005 on 07.03.2006 that the Director or the delegate of the Director alone can file the complaint before the competent Court. The relevant passage would run as follows: 49. Section 58(2) of the Act in clear terms makes it that the Criminal Court can take cognizance of any offence punishable under the Act if a complaint in writing is made by the Director or by an Officer empowered by the Director by special order. Apart from the fact that there is no special order shown, by which, the Director has empowered either Nagoor or S.Pandiaraj to prosecute the defaulters, the stand taken by the respondent that the sanction order given by the Commissioner to Mr.Nagoor was only relating to his post as a Supervisor and inasmuch as S.Pandiaraj has succeeded as a Supervisor, he has jurisdiction to make complaint. On the face of it, when the law specifically contemplates that either the Director or a person empowered by him alone can initiate the complaint, except stating that the Commissioner is also deemed to be a Director and previous Supervisor Mr.Nagoor deemed to be subsequent supervisor S.Pandiaraj, no effective step has been taken on the side of the respondent to prove before this Court. 50. Therefore, in my considered view, the complaints on the face of them are not in accordance with Section 58(2) of the Tamil Nadu Agricultural Produce Marketing (Regulation) Act, 1987 and on this score itself the writ petitions are liable to be allowed. 9. Having decided that the Director or the delegate of the Director alone is competent to launch a complaint under the provisions of the Tamil Nadu Agriculture Produce Marketing (Regulation) Act, 1987, the Supervisor, who has filed the complaint relying upon the G.O., which authorised him to check the vehicles alone would not entail him to file the complaint. Therefore, the impugned proceedings in M.C.No.28 of 2010 pending on the file of the learned Judicial Magistrate, Ambasamudram, Tirunelveli District progressed on the basis of such a complaint from the Supervisor without any authorisition is not at all sustained and accordingly, it is liable to be quashed. https://hcservices.ecourts.gov.in/hcservices/ 4 10. For the foregoing reasons, the complaint filed in M.C.No.28 of 2010 is found not in accordance with the Section 58(2) of the said Act. Therefore, the said complaint is quashed. Accordingly, this petition is ordered. Sd/- Assistant Registrar (C.O) /True Copy/ Sub Assistant Registrar (C.S) To 1. The Judicial Magistrate, Ambasamudram, Tirunelveli District. 2. -Do- thro' The Chief Judicial Magistrate, Tirunelveli 3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Copy To: The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai. Crl.O.P.(MD)No.695 of 2011 22.02.2011 akv RJ/2.6.11 4p/5c https://hcservices.ecourts.gov.in/hcservices/