Madhumati Mitra, J
This is an application under Section 482 of the Code of Criminal Procedure 1973 filed by the petitioners praying for quashing of entire proceedings in
connection with complaint case no.4D of 2009 pending before the Learned Municipal Magistrate, 4th Court, Calcutta under Section 16(1)(a)(i) read
with Section 7 of the Prevention of Food Adulteration Act, 1958 including impugned order dated 18.04.2013.
Facts which are necessary for proper appreciation of the prayer of quashing of the criminal proceedings pending before the Learned Magistrate are
as follows:-
Opposite party being the Food Inspector of Kolkata Municipal Corporation initiated a complaint case before the Learned Municipal Magistrate, 4th
Court, Calcutta alleging the commission of offences punishable under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration
Act, 1954. On the basis of that complaint, Learned Magistrate took cognizance of the alleged offences under Section 16(1)(a)(i) read with Section 7
of the Prevention of Food Adulteration Act and issued process against the present petitioners.
In response to the said summons petitioners appeared before the Learned Magistrate and they were granted bail by the Learned Magistrate.
Thereafter, the petitioners prayed before the Learned Magistrate for dispensing with their day to day appearance before the Court but said prayer
was refused by the Learned Magistrate. Petitioners preferred a criminal revisional application being C.R.R.2917 of 2009. On 05.03.2013, the said
C.R.R. 2917 of 2009 was disposed of by the High Court in favour of the petitioner.
On 18.04.2013, the petitioners prayed for their discharge under Section 245(2) of the Code of Criminal Procedure on the ground that the petitioners
were wrongly arraigned as accused person nos. 2 to 5 as partners of the business of the accused firm i.e. accused no.1.
It was contended in the said application for discharge that accused no.6, Udayan Basak had filed an application under Section 259 of the Code of
Criminal Procedure praying for conversion of the procedure for the trial of the present case from summons cases to warrant cases. The Learned
Magistrate vide his order dated 18.03.2013 allowed the said prayer.
It was the specific contention of the petitioners that the supporting documents filed in connection with the complaint case were not sufficient to frame
charge against the accused i.e. the present petitioners who are the accused nos.2 to 5 of the complaint case. In their application under Section 245(2)
of the Code of Criminal Procedure for discharge the petitioners stated that the accused firm in consonance of statutory mandate nominated one
person as the person responsible for the conduct of the day to day business of the firm i.e. accused no.1 and such nomination was made under Section
17(2) of the Act and Rules framed under the Act. It was the specific contention that such nomination had been submitted much before the date of the
institution of the complaint case. It was also the contention of the petitioner that such nomination was/is still in force. In support of their contention for
discharge, the petitioners submitted a photocopy of one nomination of Udayan Basak, the accused no.6.
After giving opportunity of being heard to both the complainant and the accused petitioners, Learned Magistrate vide his order dated 18.04.2013,
rejected the prayer for discharge of the accused nos.2 to 5 i.e. the present petitioners under Section 245(2) of the Code of Criminal Procedure.
The order of rejection of the prayer of the petitioners under Section 245(2) of the Code of Criminal Procedure for discharge from the complaint case
no.4D of 2009 is under challenge. Petitioners have also prayed for quashing of the proceedings pending against them under Section 482 of the Code of
Criminal Procedure.
In the instant case, in spite of receipt of notice, opposite party did not turn up.
I have gone through the materials placed on record as well as the impugned order. I have carefully considered the submissions made by the Learned
Counsel for the petitioners. In the instant case, in spite of service of notice opposite party i.e. Kolkata Municipal Corporation did not turn up.
From the submissions made by the Learned Counsel appearing for the petitioners, it appears that the grounds for quashing of the criminal proceedings
and the grounds for challenging the impugned order dated 18.04.2013 are same.
From the materials placed on record, it appears that the Learned Magistrate on the basis of the prayer made by the accused converted the present
case into an warrant triable case. As such date was fixed on 18.04.2013 for evidence before charge. On that date complainant was present before the
Magistrate to depose as witness before charge under Section 244 of the Code of Criminal Procedure. On that date petitioners prayed for their
discharge from the case on the ground that they were not responsible for the day to day business of the accused firm and only accused i.e. Udayan
Basak was the nominated person under Section 17(2) of the Act and rule framed under the Act for the day to day business of the firm i.e. accused
no.1. Admittedly, on the prayer of accused, the Learned Magistrate adopted warrant triable procedure to try the alleged offences.
In the instant case, complaint was made by Food Inspector against the accused for committing offence of adulteration of Food under Prevention of
Food Adulteration Act. While rejecting the prayer for discharge of the accused-petitioners, Learned Magistrate observed that the prayer for discharge
of the accused could be considered properly by appreciation of evidence before charge and as such Learned Magistrate rejected the said prayer of
discharge on the ground that the complainant was required to adduce evidence before charge.
It is true that Magistrate while considering an application under Section 245 of the Code of Criminal Procedure should not consider the pros and cons
of the evidence yet to be adduced. Magistrate can discharge the accused only when the evidence adduced if unrebutted would result in acquittal.
Even if process is issued, the Magistrate can discharge on the question of law at any stage i.e. before examination of P.Ws.
The specific plea of the petitioners is that Udayan Basak accused no.6 has been named under Section 17(2) of the Act as person responsible for
ensuring prevention of adulteration, then the other accused being the partners of the firm cannot be prosecuted. In support of the said the contention
Learned Advocate for the petitioners relied on the photocopy of certain documents. Genuineness and authenticity of the documents as relied on by the
petitioners are yet to be proved/ascertained. Moreover, complainant should be given opportunity to adduce evidence in support of the allegations made
in the complaint. The plea as taken by the petitioners that only the accused no.6 is/was responsible for the day to day business of the firm as he was
the person nominated under Section 17(2) of the Act is purely a mixed question of law and facts. The nomination under Section 17(2) of the Act
requires to be brought into evidence. Prior to that no inference can be drawn regarding the innocence of the petitioners on the basis of that document.
After going through the impugned order I am of the view that the reasons as assigned by the Learned Magistrate at the time of rejecting the prayer of
the petitioners are quite reasonable and justified. I do not find any reason to interfere with the impugned order.
Regarding the prayer of the petitioners for quashing of the entire proceeding, I would like to say that the inherent power of the High Court should not
be exercised to quash a proceeding where the allegations contained in the complaint prima facie disclosed the commission of alleged offence.
Moreover, High Court should not assume the jurisdiction of the trial Court to decide disputed facts.
The present application filed by the petitioners is devoid of merit and stands dismissed.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, upon compliance with all necessary formalities.
