Case: M/S.Pepsi Foods  Vs. Special Judicial Magistrate

The appellants are aggrieved by the judgment dated September 23, 1996 of the Division Bench of the High Court of Judicature at Allahabad (Lucknow Bench) dismissing their writ petition filed under Articles 226 and 227 of the Constitution. The appellants sought quashing of the complaint filed against them under Section 7 read with Section 16 ofthe Prevention of Food Adulteration Act, 1954 (for short `the Act). The prayers in the writ petition were worded as underissue a writ of prohibition or a writ, order or direction in the nature of prohibition, prohibiting the Opposite Partyto proceed with case No. 699 of 1994 (Anurag Narain v. Nitin Sachdeva and others);(b) issue a writ of certiorari or a writ, order or direction in the nature of certiorari quashing the proceedings in Case No. 699 of 1994 together with the consequential order dated 9.5.1994 and the complaint dated 6.5.1993 in so far as it pertains to the petitioners;(c) issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the Opposite Partynot to proceed with the Case No. 699 of 1994 during the pendency of the aforesaid writ petition;(d) issue any other appropriate writ, order or direction which this Honble Court may deem just and necessary in the circumstances of the case may also be passed; and(e) to allow the writ petition with costs.There are two appellants, second appellant is the Managing Director of first appellant. The respondents are three. First respondent is the court where the appellants along with others have been summoned for having committed offences under Sections 77/16 of the Act. The second respondent is the complainant and the third respondent is the State of Uttar Pradesh.3. The allegation in the complaint is that complainant was sold a bottle of beverage under the brand "Lehar Pepsi" which was adulterated. The bottle was purchased by the complainant on September 13, 1973. He filed the complaint on May 6, 1994. After recording preliminary evidence the Magistrate passed orders summoning the appellants and others on May 9, 1994. It appears that when the summons reached the appellants they immediately approached the High Court seeking aforesaid reliefs. The High Court, however, refused to entertain the writ petition on the ground that the appellants should approach the 1st respondent for their discharge under Section 245 of theCode of Criminal Procedure (for short `the Code), if the complaint did not disclose commission of any offence by the appellants and the Court considered the charge to be groundless. The High Court did not approve of the appellants approaching it under writ jurisdiction when sufficient remedy was available under the Code. The High Court was also of the opinion that it could not be said at that stage that the allegations in the complaint were so absurd and inherently inprobable on the basis of which no prudent man could ever reach a just conclusion that there existed no sufficient ground for proceeding against the accused. On the plea of the appellants that the provisions of Section 13(2) of the Act read with Ruleof the Rules framed under the Act were violated and on that account the inquiry or trial stood vitiated the High Court said that the appellants could well approach the court for that purpose and that it was no stage for the High Court to record its finding. Yet another plea of the appellants that provisions of Sections 203 and 245(2) of the Code did not provide an adequate remedy for a person charged on flimsy grounds and that in view of the decision of this Court in State of Haryana v. Chaudhary Bhajan Lal and others, JT 1990(4 ) SC (650) : 1992 Supp. 1 SCC 335 the court should interfere also did not find favour with the High Court. It was of the opinion that Chaudhary Bhajan Lals case pertained to a cognizable offence where police had taken cognizance of the matter and in a complaint case the Magistrate was empowered to discharge the accused at any stage of the trial if it was found that the charge was groundless.4. There are as many as 12 accused in the complaint. If we refer to the order summoning them on the basis of the allegations made in the complaint and evidence available on record it appeared to the 1st respondent, the Magistrate, that all the 12 accused had committed offence punishable under Sections 7/16 of the Act and they were therefore summoned to appear before the court to stand their trial. Before we advert to the allegations made in the complaint and the preliminary evidence brought on record which led to the first respondent to summon the accused, we may briefly refer to the provisions of law as contained in the Act and the Code.

Reasoning: 24. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not, however, be lost sight of that provisions exist in the Code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one Article 226 and 227 could well be treated under Article 227 of the Constitution.25. We have not been able to understand as to why it was necessary for the appellants to implead the first respondent as a party to the proceedings. There are no allegations of personal bias against the Presiding Officer. A court is not to be equated with a tribunal exercising quasi judicial powers. We would, therefore, strike out the name of the 1st respondent from the array of the parties.26. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and that would be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.27. No doubt the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless, but that does not mean that the accused cannot approach the High Court under Section 482 of the Code or Article 227 of the Constitution to have the proceeding quashed against him when the complaint does not make out any case against him and still he must undergo the agony of a criminal trial. It was submitted before us on behalf of the State that in case we find that the High Court failed to exercise its jurisdiction the matter should be remanded back to it to consider if the complaint and the evidence on record did not make out any case against the appellants. If, however, we refer to the impugned judgment of the High Court it has come to the conclusion, though without referring to any material on record, that "in the present case it cannot be said at this stage that the allegations in the complaint are so absurd and inherently improbable on the basis of which no prudent man can ever reach a just conclusion that there exists no sufficient ground for proceedings against the accused." We do not think that the High Court was correct in coming to such a conclusion and in coming to that it has also foreclosed the matter for the Magistrate as well, as the Magistrate will not give any different conclusion on an application filed under Section 245 of the Code. The High Court says that the appellants could very well appeal before the Court and move an application under Section 245(2) of the Code and that the magistrate could discharge them if he found the charge to be groundless and at the same time it has itself returned the finding what there are sufficient grounds for proceeding against the appellants. If we now refer to the facts of the case before us it is clear to us that not only that allegation against the appellants make out any case for an offence under Section 7 of the Act and also that there is no basis for the complainant to make such allegation. The allegations in the complaint merely show that the appellants have given their brand name to "Residency Foods and Beverages Ltd." for bottling the beverage "Lehar Pepsi". The complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturer of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as accused No. 3. The preliminary evidence on which the 1st respondent relied in issuing summon to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both. There is another aspect of the matter. The Central Government in the exercise of their powers under Section 3 ofthe Essential Commodities Act, 1955 made the Fruit Products Order, 1955 (for short, the "Fruit Order"). It is not disputed that the beverage in the question is a "fruit product" within the meaning of clause (2)(b) of the Fruit Order and that for the manufacture thereof certain licence is required. The Fruit Order defines the manufacturer and also sets out as to what the manufacturer is required to do in regard to the packaging, marking and labelling of containers of fruit products. One of such requirement is that when a bottle is used in packing any fruit products, it shall be so sealed that it cannot be opened without destroying the licence number and the special identification mark of the manufacturer to be displayed on the top or neck of the bottle. The licence number of manufacturer shall also be exhibited prominently on the side label on such bottle (clause (8)(1)(b). Admittedly, the name of the first appellant is not mentioned as a manufacturer on the top cap of the bottle. It is not necessary to refer in detail to other requirements of the Fruit Order and the consequences of infringement of the Order and to the penalty to which the manufacturer would be exposed under the provisions ofthe Essential Commodities Act, 1955. We may, however, note that in The Hamdard Dawakhana (Wakf), Delhi & another v. The Union of India & others, AIR 1965 SC 1167 : 1965(2) SCR 192, an argument was raised that the Fruit Order was invalid because its provision indicated that it was an Order which could have been appropriately issued underthe Prevention of Food Adulteration Act,This Court negatived this plea and said that the Fruit Order was validly issued under the Essential Commodities Act. What we find in the present case is that there was nothing on record to show if the appellants held the licence for the manufacture of the offending beverage and if, as noted above, the first appellant was the manufacturer thereof.28. It is no comfortable thought for the appellants to be told that they could appear before the court which is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them. It is certainly one of those cases where there is an abuse of the process of the law and the courts and the High Court should not have shied away in exercising its jurisdiction. Provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. In our view High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it.