A.P. Srivastava, J. - (1.) This is a reference by the Sessions Judge of Meerut recommending that the conviction of the applicant Under Section 188, IPC and the consequent sentence of a fine of Rs. 25 imposed upon him be set aside.
(2.) It appears that Under Section 2 of the Epidemic Diseases Act, 1897 the Public Health Department had issued a notification bearing No. 2382/XVI (PH) 85-55, dated 6-4-1955 which, inter alia, provided that no person should sell sweetmeats without proper covering or container to protect them from dust and flies. Shiva Charan was found selling sweetmeats unprotected from dust and flies on 7-7-1955 and a complaint was filed against him at the instance of the Food Inspector of Ghaziabad by the District Medical Officer of Health for Meerut. The Magistrate took cognizance of the case, tried Shiva Cnaran, found him guilty Under Section 188, IPC and sentenced him to pay a fine of Rs. 25 and in default to undergo 15 days simple imprisonment. Shiva Charan went up in revision to the Sessions Judge of Meerut and raised two contentions one of which found favour with the learned Judge. That contention was that the learned Magistrate could not have taken cognizance of the offence against Shiva Charan in view of section 195 (1) (a), Code of Criminal Procedure because the regulation which Shiva Charan was said to have broken had been issued by the Secretary to the UP Government in the Public Health Department and the complaint, before cognizance could be taken in respect of it, should have been made either by the Secretary himself being the public Officer concerned or by some officer to whom he was Subordinate. Accepting this contention and being of opinion that the trial of Shiva Charan was without jurisdiction the learned Sessions Judge has recommended that his conviction and sentence be quashed.
(3.) Sri J.R. Bhatt, Learned Counsel for the State, opposes the reference, and the ground he puts forward is that the regulation which Shiva Charan was said to have broken was not a regulation issued by a public servant at all. It was really a regulation issued by the Government and for the breach of such a regulation it is not necessary that a complaint should be filed by a public servant before cognizance can be taken of the offence by a Magistrate. In support of this contention he relied on a decision of the Madras High Court reported in Queen Empress v. South, ILR XXIV Mad. 70 .;