M. B. SHARMA, J. - (1.) I have gone through the judgment dated May 2, 1980 of the learned Munsif and Judicial Magistrate First Class,fatehpur. It appears that the only ground on which the charge under Section 7 (1) and Section 16 (1) (A) of the Prevention of Food Adulteration Act, 1954 (for short hereinafter referred to as 'the P. F. Act') has been dropped against the accused-respondents is that the complainant was not present and the sanction has also not been proved.
(2.) VIRENDRA Kumar Tyagi PW1 was Food Inspector, Fatehpur on January 29, 1977. On that day the. said Food Inspector purchased the requisite quantity of gram dal after giving notice under form No. 6 to the accused-respondent. The witnesses were present and the witnesses Kudilal PW 2 and Gordhan PW 3 also signed the various memos. The gram dal being 750 grammes, which was purchased, was divided into three equal parts and each part was separately wrapped and sealed. One sample was sent to the Public Analyst for analysis and the Public Analyst under his report Ex. P/5 dated February 16, 1977 after giving the details of the various constituents to make the gram dal opined that the sample was adulterated as it did not conform to the prescribed standard- of purity. The Food Inspector after taking the written consent for the initiation of prosecution against the accused-respondent from the Collector and District Magistrate, Sikar, filed the complaint against the accused-respondent. The learned Magistrate read over the substance of the accusation to the accused respondent and the accused-respondent admitted that the sample of gram dal was taken from him and according to him it was of high quality and was not adulterated. Statements of PW 1 Virendrakumar Tyagi, Food Inspector, PW 2 Kudilal and PW 3 Gordhan, the two motbirs were recorded. The statements of the aforesaid two motbirs were recorded on April 22, 1980 and permission was sought by the Assistant Public Prosecutor to produce one more witness to prove the sanction. The learned Magistrate on May 2, 1980 in exercise of powers under Section 256 Cr. P. C. in the absence of the complainant or the Assistant Public Prosecutor dismissed the complaint and acquitted the accused-respondent. It may be stated at the very out set that the learned Magistrate has not properly appreciated the provisions of Section 256 Cr. P. C. A bare perusal of sub-section (1) of Section 265 Cr. P. C. shows that the accused is only entitled to the benefit of this section when summons has been issued on complaint and is not entitled where a warrant in the first instance has been issued. Sub-Section (1) of Section 256 Cr. P. C. reads as under:- "256. Non-appearance or death of complainant; (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day". A bare reading of the first order-sheet dated April 28, 1977 will show that while taking cognizance of the offence under Section 7/16 of the P. F. Act against the accused-respondent. The learned Magistrate in the first instance ordered that the accused be summoned through bailable warrant in the sum of Rs. 1,000/ -. Offence under Section 7/16 of the P. F. Act is punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees. The Court may, for special reason to be recorded in the judgment, impose a sentence of three months. Under Section 204 (1) Cr. P. C. if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be a summons-case, he shall issue his summons for the attendance of the accused and in case it is a warrant case then he has discretion either to issue a warrant or a summons for causing the accused to be brought or to appear at a certain time before him. He has no jurisdiction to acquit the accused when in a warrant case, warrant is issued in the first instance against the accused. It will, therefore, be clear that in case the case is a warrant case, the Magistrate has a discretion to issue a warrant or a summons. Warrant case has been defined in Section 2 (x) Cr. P. C. and means a case relating to an offence punishable with death imprisonment for life or imprisonment for a term exceeding two years. Offence under Section 7/16 P. F. Act is punishable with imprisonment for a term which may extend to three years and, therefore, the case is undisputedly a warrant case. If that be so, Section 256 (1) Cr. P. C. will only be applicable in case the summons has been issued on complaint and not in case a bailable warrant had been issued on complaint. Apart from what has been stated earlier, it may be stated that the question of proving the sanction of the prosecution issued by the Collector and District Magistrate against the accused-respondent, in my opinion does not arise, because the act of the District Magistrate in giving the sanction was an official act. From the perusal of the sanction it can be said as to whether the sanction for initiation of the proceedings has been recorded according to law or not or whether there was some infirmity or not. If there was any infirmity in according the sanction, the questions of proving the sanction may. arise. A bare look at Section 114 of the Evidence Act will show that under its Illustration (e) the Court may presume that judicial and official acts have been regularly performed. Therefore, the view of the learned Magistrate that the sanction should have been proved and because the same has not proved and the complainant is absent, the same should be dismissed under Section 256 (1) Cr. P. C. was erroneous. As has been said above, all the evidence of the complainant had been recorded and the only thing which was left, even if we presume that proof of the sanction was necessary, though it has been held that it was not necessary, was that one witness to prove the sanction was to be produced. The sanction has already been exhibited as Ex. P/6 without any objection on behalf of the accused-respondent. Even if Section 256 (1) Cr. P. C. would have been applicable, which is not in the instant case, the Magistrate has discretion to act under it, as in the facts and circumstances of the case when it has already been stated earlier that when all the evidence has been recorded, sanction did not require any proof under the law, the learned Magistrate should not have exercised discretion, even if it was available.
(3.) IT may be observed that learned Magistrate Shri Om Prakash Sharma, who was then posted as Munsif and Judicial Magistrate First Class, Fatehpur, District Sikar has no knowledge of law. He has not taken any pains even to go through the record of the case to the effect that in a complaint case the Magistrate had in the first instance issued a bailable warrant to secure the presence of the accused. Had he done so, he would not have fallen in the legal error in which he had fallen. He acquitted the accused on flimsy ground in the case under Section 256 (1) Cr. P. C. This remark may be communicated to the Magistrate concerned. In the result the State appeal is allowed. The judgment of the learned Magistrate is set aside and the case is sent back to the Court of Chief Judicial Magistrate, Sikar with a direction to decide the case afresh after notice to the accused-respondent in the light of the observations made above. .;