TaxTMI 
TaxTMI 
2013 (1) TMI 943
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...., one P.N. Khatri, Food Inspector, purchased a sample of sweetened carbonated water for analysis from one Daya Chand Jain, Vendor-cum- Contractor of Canteen at Suraj Cinema, Dhansa Road, Najafgarh, Delhi. After following the necessary procedure, the sample was sent to the Public Analyst for analysis. On analysis, the Public Analyst opined that the sample does not conform to the prescribed standard. After conclusion of the investigation, the respondent-State through its Local Health Authority - P.K. Jaiswal filed a Complaint bearing No.64 of 1991 against the appellant and Daya Chand in the Court of the Metropolitan Magistrate, New Delhi alleging that the appellant and the said Daya Chand had violated the provisions of Sections 2(ia), (a), (b), (f), (h), (l), (m), Section 2(ix) (j), (k) and Section 24 of the Prevention of Food Adulteration Act, 1954 (for short, "PFA Act") and Rule 32, Rule 42 (zzz)(i) and Rule 47 of the Prevention of Food Adulteration Rules, 1955 (for short, "the Rules") and committed an offence punishable under Section 16(1)(1A) read with Section 7 of the PFA Act and the Rules. Since Daya Chand died during the pendency of the case, the case abated as agains....
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....4). He also took us through un-amended and amended Section 378 of the Code. After analyzing the relevant provisions, Mr. Luthra submitted that no appeal lies against an order of acquittal in cases instituted upon a complaint to the Sessions Court. Ms. Lekhi also adopted similar line of reasoning. 9. Mr. Malhotra learned Additional Solicitor General adopted a different line of argument and therefore, it is necessary to note his submissions in detail. Counsel pointed out how the law relating to appeals against orders of acquittal has evolved over the years. Counsel submitted that under the Code of Criminal Procedure, 1861 no appeal against an order of acquittal could be filed. The Code of Criminal Procedure, 1872 permitted only the State Government to file an appeal against acquittal order. Section 417 of the Criminal Procedure Code, 1898 permitted only the State to file an appeal against acquittal order. In 1955 it was amended so as to permit the complainant to file an appeal against acquittal order. Under the Code of Criminal Procedure, 1973, Section 417 was substituted by Section 378. Counsel pointed out that under Section 378(4) a complainant could prefer appeal against order ....
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.... Court of Session in revision.] (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal. (3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, ....
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....roceed to analyze the amended Section 378 of the Code, it is necessary to quote the relevant clause in the 154th Report of the Law Commission of India, which led to the amendment of Section 378 by Act 25 of 2005. It reads thus: "6.12. Clause 37: In order to guard against the arbitrary exercise of power and to reduce reckless acquittals, Section 378 is sought to be amended providing an appeal against an order of acquittal passed by a Magistrate in respect of cognizable and non-bailable offence filed on a police report to the Court of Session as directed by the District Magistrate. In respect of all other cases filed on a police report, an appeal shall lie to the High Court against an order of acquittal passed by any other court other than the High Court, as directed by the State Government. The power to recommend appeal in the first category is sought to be vested in the District Magistrate and the power in respect of second category would continue with the State Government." The Code of Criminal Procedure (Amendment) Bill, 1994 has the same note on Clause 37. 13. Though, the Law Commission's 154th report indicated that Section 378 was being amended to provide that an ap....
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....and (5), - (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non- bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court [not being an order under clause (a)] [or an order of acquittal passed by the Court of Session in revision]. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code. [the Central Government may, subject to the provisions of sub- section (3), also direct the Public Prosecutor to present an appeal- (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailabl....
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....n offence under any Central Act other than the Code. This provision is similar to sub-section(1) except that here the words 'State Government' are substituted by the words 'Central Government'. 16. If we analyse Section 378(1)(a) & (b), it is clear that the State Government cannot direct the Public Prosecutor to file an appeal against an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence because of the categorical bar created by Section 378(1)(b). Such appeals, that is appeals against orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence can only be filed in the Sessions Court at the instance of the Public Prosecutor as directed by the District Magistrate. Section 378(1)(b) uses the words "in any case" but leaves out orders of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence from the control of the State Government. Therefore, in all other cases where orders of acquittal are passed appeals can be filed by the Public Prosecutor as directed by the State Government to the High Court. 17. Sub-Section (4) of Section 378 makes provision for appeal against an order....
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....he Code may culminate into a complaint case (cases under the Drugs & Cosmetics Act, 1940). Under the PFA Act, cases are instituted on filing of a complaint before the Court of Metropolitan Magistrate as specified in Section 20 of the PFA Act and offences under the PFA Act are both cognizable and non-cognizable. Thus, whether a case is a case instituted on a complaint depends on the legal provisions relating to the offence involved therein. But once it is a case instituted on a complaint and an order of acquittal is passed, whether the offence be bailable or non- bailable, cognizable or non-cognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant. So far as the State is concerned, as per Section 378(1)(b), it can in any case, that is even in a case instituted on a complaint, direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than High Court. But there is, as stated by us hereinabove, an important inbuilt and categorical restriction on the State's power. It cannot dire....