A.S. Naidu, J.
1. Invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, the petitioners have approached this Court with a prayer to quash the further proceedings of 2(c)CC No.56 of 1997 pending in the Court of the learned SDJM, Sambalpur.
2. Bereft of unnecessary details, the short facts as would be evident from the averments made in the petition are that on the basis of a prosecution report filed by the Food Inspector of Sambalpur Municipality on 4th July, 1997, the aforesaid complaint case was registered alleging commission of offences under Sections 16(1)(a)(i) read with Sections 2(ix)(k), 7(ii) of the Prevention of Food Adulteration Act, 1954 and Rule 32 of the Prevention of Food Adulteration Rules, 1955. It was alleged in the prosecution report that the said Food Inspector had visited the Eastern Road Service Depot of M/s. Hindusthan Lever Limited, BBIL Division where petitioner No.1 was the salesman and petitioner No.2 was the manager and came across a product known as "MILKANA'. The Food Inspector purchased sample of the said product and sent the same along with a memorandum to the Public . Analyst for analytical examination stating the said product as skimmed milk product. After analysis the Public Analyst reported that the product "MILKANA" did not satisfy the standard of skimmed milk powder. It is submitted that "MILKANA" is Instant Dairy Whitener and not Skimmed Milk Powder. Thus the Food Inspector acted illegally in filing the complaint and so also the Court below taking cognizance of the offences.
According to the petitioners, Milkana Instant Dairy Whitener was manufactured by M/s. Brooke Bond Lipton India Limited and the same was not Skimmed Milk Powder and, as such, the prosecution report vis-a-vis the report of the Public Analyst were based on surmises and conjectures and it was a fit case where the criminal proceeding may be dropped.
It appears that the petitioner being aggrieved by the order of the Court below had filed Criminal Revision No.28/24 of 1999 before the Sessions Court and the learned Addl. Sessions Judge, Sambalpur who heard the said revision dismissed the same declining to discharge the petitioners of the charges framed against them. Being aggrieved by the order of the revisional Court, the petitioners have approached this Court.
3. In support of the averments of the petitioners, Mr. Lal their learned Counsel relying on the decision of the Supreme Court (Adalat Prasad v. Rooplal Jindal and Ors.) submitted that this Court has powers to recall the process issued against the accused exercising jurisdiction under Section 482 CrPC. In the decision supra the Supreme Court has held :
Therefore, in our opinion the observation of this Court in the case of Mathew (K.M. Mathew v. State of Kerala 1992 SCC (Cri) 88) that for recalling an erroneous order of issuance of process, no specific provision of law is required, would run counter to the scheme of the Code which has not provided for review and prohibits interference at interlocutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew case that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law.
4. Law is no more res integra that if a magistrate takes cognizance of an offence and issues process without there being any allegation against an accused or any material implicating him in contravention of the provisions of Sections 200 and 202 CrPC, the order of the magistrate may be vitiated, but then the relief the aggrieved party can obtain at that stage is not by invoking the provision under Section 203 CrPC, but under Section 482 of the said Code.
5. Mr. Lal further relies upon another decision of the Supreme Court dated July 25, 2003 in Criminal Appeal No.896 of 2003 Hindustan Lever Ltd. v. The Food Inspector and Anr. andsubmitted that in the present case the Food Inspector acted illegally and with material irregularity in applying the standard of Skimmed Milk Powder to "Milkana Instant Dairy Whitener" although both the products were distinctly separate.
6. The case in the aforesaid decision was identical to the present case.In the said case also similar questions arose before the Apex Court and the product was MILKANA. The ratio of the aforesaid decision squarely applies to the present case. Thus it is clear that the basis of the prosecution report was not correct and thus the complaint case registered on the basis of such prosecution report would not lie.
7. In view of the aforesaid discussions, I have no hesitation to quash the further proceedings of the complaint case, and I direct accordingly. The CRMC is thus allowed.
