Patna High CourtChiranji Lal Alias Cbiranji Lal Poddar vs State Of Bihar And Ors. on 28 July, 1976Equivalent citations: 1978(26)BLJR735JUDGMENT
 

 B.S. Sinha, J.1. This application underSection 482of the Code of Criminal Procedure, 1973 (herein after referred to as the 'Code') is directed against the order dated 22nd May, 1978, passed by Sri Jagdish Pd. Singh, Fifth Additional Sessions Judge, Patna, in Criminal Revision No. 329 of 1975 by which the order dated 28th May, 1975, passed by Sri S. N. Gupta, Judicial Magistrate, First class, Patna, in case No. 1060 (2) 73, has been set aside, and it has been Tr. No. 2033/75 directed that the case against the petitioner shall proceed in accordance with law.2. The relevant facts are that on 16. 11. 1973, Sri Ramadhar Singh, Inspector of weights and Measures, Mithapur, Patna, filed a petition of complaint in the court of the Sub-divisional Officer, Sadar, Patna, against the petitioner charging him of violation of the provisions ofSection 11of the Bihar Weights and Measures (Enforcement) Act, 1959(hereinafter referred to as the "Weights and Measures Act), which is an offence punishable underSection 25of the Weights and Measures Act. After cognizance was taken, summons were issued against the petitioners who appeared before Sri S. N. Gupta, Judicial Magistrate, First Class, Patna, on 28.5.1975 and prayed that he should be acquitted since the complaint petition disclosed no offence. The learned Magistrate on a consideration of the complaint petition and after hearing the public Prosecutor appearing on behalf of Weights and Measures Department as well as the petitioner's lawyer came to the conclusion that the complaint petition disclosed no offence and hence the petitioner was acquitted. Being aggrieved by that order, the State through the Weights and Measures Department filed a revision application before the Sessions Judge, Patna, which was heard by the Fifth Additional Sessions Judge, who by the impugned order set aside the order passed by the learned Magistrate against this order, the petitioner has filed the present application.3. In support of this application, it has been urged by the learned lawyer appearing on behalf of the petitioner that the learned Magistrate was justified in acquitting the petitioner inasmuch as the complaint petition disclosed no offence and the revision Court below has erred in setting aside that order and directing that the trial should proceed in accordance with law.4. It is settled law that if a complaint or a first information report taken at their face value and accepted in their entirety do not constitute an offence, then in such cases the proceeding should not be permitted to go on. Accordingly, it becomes relevant to consider whether the complaint petition discloses an offence or not. A copy of the complaint petition has been appended and marked Annexure "1" to this application. Paragraph 3 of which runs as follows:Nature of the offence-Violation of Section 11 of the Bihar Weights and Measures Act, 1959.Paragraph 6 of the complaint petition with heading '"Particulars of the offence-States as follows:The above two meters were found unstamped and unverified. The complainant who is the Inspector of Weights and Measures, Sadar, Patna begs to state as follows: -1. The accused is the owner of the shop situated at Muradpur, Patna and he was found violatingSection 11of the said Act which is punishable UnderSection 25of the said Act.2. The accused has, therefore, committed a breach ofSection 11Bihar Weights and Measures (Enforcement) Act, 1959 and is therefore guilty of the offence punishable underSection 25of the Bihar Weights and Measures (Enforcement) Act, 1959."Paragraph 6 quoted above is the accusation against the petitioner. By going through it, I have been unable to find out as to where the unstamped and unverified meters were found, and as such, even if the statement made in the complaint petition is taken in its entirety, no offence is made out as contemplated underSection 25of the Weights and Measures Act, which reads thus:Whoever uses in any transaction for trade or commerce or has in his possession for such use any commercial weight or measure or any weighing or measuring instrument which has not been verified or re-verified or stamped in accordance with the provisions of this Act and the rules made there under shall be punishable, for a first offence, with fine which may extend to two thousand rupees, and for a second or subsequent offence, with imprisonment for a period which may extend to six months, or with fine, or with both.It is not the case of the complainant that the unstamped and unverified meters were found being used in any transaction for trade or commerce. There is nothing even to show that these were in possession of the petitioner for such use.5. Mr. Jha appearing for the state has urged that as the petitioner has got a shop, it is implied in the complaint petition that the meters had been recovered from the shop, and hence it should be presumed that they were in possession of the petitioner for being used in transaction for trade or commerce. I am unable to accept this submission. If that was so, it should have been clearly stated in the complaint petition itself. The word "complaint-has been defined under the code as a statement of facts constituting the offence. In this complaint petition, the facts which would constitute an offence underSection 25of the Weights and Measures Act have not been made out. I am, therefore, in agreement with the learned Magistrate that the complaint petition disclosed no offence against the petitioner for which he should have been tried.6. The learned Magistrate, however, to my mind, erred in recording an order of acquittal against the petitioner. What he should have done was that as the complaint petition did not disclose any offence, he should have discharged the petitioner in respect of the offence for which he was charged. Learned Counsel for the petitioner and the State have urged that in a summons case, there can be no discharge of an accused. I am unable to accept this submission. Mr. Babulal for the petitioner referred to the case ofPalchami and Ors. v. Paramasive Gounder A.I.R.1958 Mad. 197 to urge that there could not be a discharge of an accused in a summons case.InMunicipal Council Raipur and Anr. v. The State of Madhya Pradesh1970 C.L.J. 1956 however, in a summons case, the respondents had appeared and filed preliminary objections that had not committed any offence. The Magistrate had accepted the contention and dismissed the complaint petition and discharged the accused. Upholding that order of discharge, the Supreme Court did not hold that the order discharging the respondents was not in accordance with law.Even in Madras case (supra), it has been observed that a complaint in a summons case can be dismissed under Section 203 of the Code. The effect of such a dismissal would be discharging the accused.7. On behalf of the State, it has been urged that the present petition filed by the petitioner is not maintainable inasmuch as the order passed by the learned Additional Sessions Judge is an interlocutory order, and as such this court exercise its provisional jurisdiction in view of the bar of Sub-section (2) of Section 397 of the code. As I have stated above, the present application is an application under Section 482 of the Code. In the case of Madhu Limaye v. State of Maharashtra , it has been laid down that in case an impugned order brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice, interference by the High Court is necessary, then nothing contained in Sub-section (2) of Section 397 of the code can limit or affect the exercise of the inherent power by the High Court and it is always open to this Court to examine the matter in appropriate case under its inherent power.8. In the instant case, I have already held that as the complaint petition taken in its entirety does not disclose an offence, it would be manifestly unjust to allow the process of the Criminal court to be issued and continued against the petitioner.9. For the reasons givens above, this application is allowed. The order dated the 22nd May, 1976 passed in Criminal Revision No. 329 of 1975 by the First Additional Sessions Judge, Patna, is set aside and the order passed by Sri S. N. Gupta, Judicial Magistrate, First Class, Patna, on 28th May, 1975 in case No. 1060 (2) 73/Tr. No. 2033/75 is upheld subject to the observations made above.