Holding

The Supreme Court held that the High Court should have exercised its jurisdiction under Article 227/Section 482 to quash the complaint as the allegations did not constitute an offence, and therefore set aside the High Court order.

Summary

The consumer complained that a bottle of "Lehar Pepsi" he purchased was adulterated with fungus, leading to a complaint under the Prevention of Food Adulteration Act, 1954. The Special Judicial Magistrate summoned Pepsi Foods Ltd. and others, but the appellants challenged the summons in the High Court, which dismissed their writ petition on the ground that remedies were available under the Code of Criminal Procedure. On appeal, the Supreme Court held that the High Court had erred in taking a rigid approach and should have exercised its judicial superintendence under Article 227 or Section 482 of the CrPC to quash the proceedings, as the complaint did not establish any offence by the appellants. The Court emphasized that the High Court may intervene in criminal matters to prevent abuse of process and that the magistrate’s summoning was unwarranted. Consequently, the Supreme Court set aside the High Court order and quashed the complaint against the appellants.

Issues considered

The appropriateness of invoking Articles 226 and 227 of the Constitution and Section 482 of the CrPC to quash criminal proceedings where the complaint does not disclose an offence.
Whether the High Court was justified in refusing relief on the ground that remedies under the CrPC were sufficient.
Whether the allegations under Section 7 of the Prevention of Food Adulteration Act, 1954, as presented, made out a prima facie case against the appellants.
The scope of the magistrate’s power to summon accused in a criminal case and the duty to scrutinise evidence before doing so.
The relevance of the appellants’ licence status under the Fruit Products Order, Essential Commodities Act, 1955, to liability under the Food Adulteration Act.

Legislation cited

Code of Criminal Procedure, 1973s. 190, s. 200, s. 204, s. 205, s. 244, s. 245, s. 245(1), s. 245(2), s. 482
Constitution of Indias. Article 226, s. Article 227
Essential Commodities Act, 1955
Prevention of Food Adulteration Act, 1954s. 12, s. 13, s. 16, s. 2, s. 20, s. 7

Subjects

Food adulterationJudicial reviewHigh Court jurisdictionSection 482 CrPCArticle 227Article 226Prevention of Food Adulteration ActCriminal procedureSummonsManufacturer licenceEssential Commodities Act

Judgment

A MIS. PEPSI FOODS LTD. AND ANR.
.
v.
SPECIAL JUDICIAL MAGISTRATE AND ORS.

•· NOVEMBER 4, 1997

B [SUJATA V. MANOHAR AND D.P. WADHWA, JJ.)

\ .
C~nstitution of India, 1950: Articles 2261227-Powers of High Court-
Food Adulteration-Appeilants-Name lender to the beverage 'Lehar
C Pepsi'-Report by Analyst-Fungus present-Complaint by the consumer
before Magistrate-Summons issued to the appellants-High Court dismissed
the writ petition holding that sufficient remedy available under Cr. P. C.-
Held, rigid approach by High Court-Miscarriage of justice-Power of
superintendence under Article 227 is not only administrative but also judicial
in nature-No bar for approaching the High Court under section 482 of the
D Code or Article 227 of the Constitutio'1-Code a/Criminal Procedure, 1973-
Sec. 482.

Judicial Review-Held High Court can exercise its powers ofjudicial
review in criminal matters.

E Prevention of Food Adulteration Act. 1954-Section 7 read with section
16-Adulteration- 'Lehar Pepsi'-Report of Analyst-Fungus present-
Adulterated-Summons issued by Magistrate to appellants who gave brand
name-Held nothing on record to show that appellants had the licence for
the manufacture of the offending beverage-No offence committed by
appellants.
F
Practice & Procedure-Presiding Officer of Court-No allegation of
personal bias-lmpleaded as party to the proceedings-Held, a Court is not
to be equated with the Tribunal exercising quasi judicial powers-Not to be
arrayed as a party to the proceedings.
G Criminal law-Magistrate-Summoning of an accused-Requirements
to be fulfllled-laid down.

Respondent No. 2 (Complainant) purchased a bottle of 'Lehar Pepsi'.
After consuming the beverage, he felt a strange taste and on observation
H found that the bottle contained many white particles. He sent the sample for
12
PEPSI FOODS LTD. v. S.J. MAGISTRATE 13
...... analysis. The State Public Analyst gave a report that due to the presence of A
fungus in the sample, it was adulterated. A complaint was filed before the
Magistrate against the appellants and others under section 7 read with
section 16 of the Prevention of Food Adulteration Act, 1954. After recording
preliminary evidence, the Magistrate summoned the appellants. Appellants
approached the High Court in writ petition for quashing the complaint filed B
against them. The High Court dismissed the writ petition holding that
sufficient remedy was available under the Code of Criminal Procedure.
Aggrieved by the orders of the High Court the appellants have filed the
present appeal.

Allowing the appeal, this Court C
HELD : 1. I. The High Court should not have adopted a rigid approach
which certainly had led to miscarriage of justice in the present case. Power
of judicial review is discretionary but this was a case where the High Court
should have exercised it. (29-8(
D
1.2. It is settled that High Court can exercise its powers of judicial
review in criminal matters. Under Article 227 of the Constitution of India
the power of superintendence by the High Court is not only of administrative
nature but is also of judicial nature. This article confers vast powers on the
High Court to prevent the abuse of the process of law by the inferior courts
and to see that the stream of administration of j'.lstice remains clear and E
pure. The power conferred on the High Court under Articles 226 and 227
of the Constitution and under section 482 Cr. P. C. have no limits but more
the power more due care and caution is to be exercised in invoking these
powers. When the exercise of powers could be under Article 227 or Section
482 of the Code of Criminal Procedure, it may not always be necessary to F
invoke the provisions of Article 226. 124-F; 25-A-C)

State of Hary1ana and Ors. v. Bhajan Lal and Ors., (1992] Supp. 1 SCC
335; Waryam Singh and Anr. v. Amarnath and Anr., AIR (1954) SC 215 =
(1954] SCR 565; Da/mia Jain Airways ltd. v. Sukumar Mukherjee, AIR
(1951) Cal. 193 SB; Babhutmal Rai-Chand Oswa/ v. Laxmibai R.. Tarte and G
Anr., AIR (1975) SC 1297 = (19751 l SCC 858; Rex v. Northumberland
Compensation Appeal Tribunal, (1952) I All ER 122 and Nagendra Nath
Bora v. The Commissioner of Hills Division, f 1958( SCR 1240, referred to.

1.3. No doubt the Magistrate can discharge the accused at any stage
of trial if he considers the charge to be groundless, but that does not mean H
14 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A that the accused cannot approach the High Court under section 482 of the
Code or Article 227 of the Constitution to have the proceeding quashed
against him when the complaint does not make out any case against him and
still he must undergo the agony of a criminal trial. [27-CI

1.4. Nomenclature under which petition is filed is not quite relevant
B and that does not debar the court from exercising its jurisdiction which
otherwise it possesses unless there is special procedure prescribed which
procedure is mandatory. If the court finds that the appellants could not
invoke its jurisdiction under Article 226, the court can certainly treat the
petition under Article 227 or Section 482 of the Code. It may not, however,
C be lost sight of the provisions that exist in the Code of revision and appeal
but sometimes for immediate relief, Section 482 of the Code or Article 227
may have to be resorted to for correcting some grave errors that might be
committed by the subordinate ,courts. The present petition though filed in the
High Court as one under Articles 226 and 227 could well be treated under
Article 227 of the Constitution. [26-C-E[
D 2. Summoning of an accused in a criminal case is a serious matter.
Criminal law cannot be set into motion as a matter of course. It is not that
the complainant has to bring only two witnesses to support his allfgations
in the complaint to have the criminal law set in motion, The ordfr of the
Magistrate summoning the accused must reflect that he has applied 'his mind
E to the facts of the case and the law applicable thereto. He has to examine the
nature of allegations made in the complaint and the evidence both oral and
documentary in support thereof and would that be sufficient for the
complainant to succeed in bringing charge home to the accused. It is not that
the Magistrate is a silent spectator at the time of recording of preliminary
evidence before summoning of the accused. Magistrate has to carefully
F scrutinise the evidence brought on record and may even himself put questions
to the complainant and his witnesses to elicit answers to find out the
truthfulness of the allegations or otherwise and then examine if any offence
is prima facie committed by all or any of the accused. [26-G-H; 27-A-B[

3. The allegations against the appellants do not make out any case for
G an offence under section 7 of the Prevention of Food Adulteration Act, 1954
and also that there is no basis for the complainant to make such allegations.
There was nothing on record to show if the appellants held the licence for
the manufacture of the offending beverage and if the first appellant was the
manufacturer thereof.

H 4. There are no allegations of personal bias against the presiding

I
PEPSI FOODS LTD. v. S.J. MAGISTRATE [D.P. WADHWA, J.] 15
officer. A court is not to be equated with the Tribunal, exercising quasi A
judicial powers. Therefore, the name of the first respondent would be struck
off from the array of the parties. 126-F]

CRIMINAL APPELLATE JURISDICTION: Crimi~al Appeal No. IOI9
of 1997.
B
From the Judgment and Order dated 23.9.96 of the Allahabad High Court
in W.P. No. 1609 (MB) of 1996.

K.K. Venugopal, R.K. Virmani, Rizvi and P. Vanna for the Appellant.

In-person for the Respondent No. 2. c
Yogeshwar Prasad and AS. Pundir for the Respondent Nos. I and 3.

The Judgment of the Court was delivered by

D. P. W ADHW A, J. Leave granted.
D
The appellants are aggrieved by the judgment dated September 23, 1996
of the Division Bench of the High Court of Judicature at Allahabad (Lucknow
Bench) dismissing their writ petition filed under Articles 226 and 227 of the
Constitution. The appellants sought quashing of the complaint filed against
them under Section 7 read with Section 16 of the Prevention of Food E
Adulteration Act, 1954 (for short 'the Act'). The prayers in the writ petition
were worded as under :

"(a) issue a writ of prohibition or a writ, order or direction in the
nature of prohibition, prohibiting the Opposite Party Number- I to
proceed with case No. 699of1994 (Anurag Narain v. Nitin Sachdeva F
and others);
) (b) issue a writ of certiorari or a writ, order or direction in the nature
of certiorari quashing the proceedings in Case No. 699 of 1994 together
with the consequential order dated 9.5.1994 and the complaint dated

I)'
6.5.1993 in so far as it pertains to the petitioners;
G
(c) issue a writ of mandamus or a writ, order or direction in the nature
of mandamus commanding the opposite Party Number-1 not to proceed
with the Case No. 699 of 1994 during the pendency of the aforesaid
writ petition;

(d) issue any other appropriate writ, order or direction which this H
16 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A Hon'ble Court may deem just and necessary in the circumstances of
the case may also be passed: and

(e) to allow the writ petition with costs.

There are two appellants, second appellant is the Managing Director of
B first appellant. The respondents are three. First respondent is the court where
the appellants alongwith others have been summoned for having committed
offences under Sections 7/16 of the Act. The second respondent is the
complainant and the third respondent is the State of Uttar Pradesh.

The allegation in the complaint is that complainant was sold a bottle of
C beverage under the brand "Lehar Pepsi" which was adulterated. The bottle
was purchased by the complainant on September 13, 1993. He filed the
complaint on May 6. 1994. After recording preliminary evidence the Magistrate
passed orders summoning the appellants and others on May 9, 1994. It
appears that when the summons reached the appellants they immediately
approached the High Court seeking aforesaid reliefs. The High Court, however,
D refused to entertain the writ petition on the ground that the appellants should
approach the Ist respondent for their discharge under section 245 of the Code
of Criminal Procedure (for short 'the Code'), ifthe complaint did not disclose
commission of any offence by the appellants and the Court considered the
charge to be groundless. The High Court did not approve of the appellants
E approaching it under writ jurisdiction when sufficient remedy was available
under the Code. The High Court was also of the opinion that it could not be
said at that stage that the allegations in the complaint were so absurd and
inherently improbable on the basis of which no prudent man could ever reach
a just conclusion that there existed no sufficient ground for proceedings
against the accused. On the plea of the appellants that the provisions of
F Section 13(2) of the Act read with Rule 9-A of the Rules framed under the
Act were violated and on that account the inquiry or trial stood vitiated the
High Court said that the appellants could well approach the court for that
purpose and that it was no stage for the High Court to record its finding. Yet
another plea of the appellants that provisions of Section 203 and 245(2) of
G the Code did not provide an adequate remedy for a person charged on flimsy
grounds and that in view of the decision of this Court in State of Haryana
v. Chaudhry Bhajan Lal and others, JT (1990) 4 SC 650 [1992] Supp. I SCC
335 the court should interfere also did not find favour with the High Court.
It was of the opinion that Chaudhry Bhajan lal's case pertained to a cognizable
offence where police had taken cognizance of the matter and in a complaint' I
H case the Magistrate was empowered to discharge the accused at any stage '
PEPSI FOODS LTD. v. S.J. MAGISTRATE [D.P. WADHWA, J.] 17
of the trial. if it was found that the charge was groundless. A
There are as many as 12 accused in the complaint. If we refer to the
order summoning them on the basis of the allegations made in the complaint
and evidence available on record it appeared to the 1st respondent, the
Magistrate, that all the 12 accused had committed offence punishable under
Sections 7/16 of the Act and they were therefore summoned to appear before B
the court to stand ·their trial. Before we advert to the allegations made in the
complaint and the preliminary evidence brought on record which led to the
first respondent to summon the accused, we may briefly refer to the provisions
of law as contained in the Act and the Code.

Under Section 7 of the Act, in relevant part, no person shall himself or C
by any person on his behalf manufacture for sale, or store, sell or distribute
any adulterated food. Under clause (ia) of Section 2 of the Act which defines
"adulterated" - an article of food shall be deemed to be adulterated -

(a) if the sold by a vendor if not of the nature, substance or quality D
demanded by the purchaser and is to his prejudice, or is not of the
I nature, substance or quality which it purports or is represented to be;

I (b) if the article contains any other substance which affects, or if the
article is so processed as to affect injuriously the nature, substance
or quality thereof; E
(c) if any inferior or cheaper substance has been substituted wholly
or in part for the article so as to affect injuriously the nature, substance
or quality thereof;

(d) if any constituent of the article has been wholly or in part
abstracted so as to affect injuriously the nature, substance or quality F
thereof;

(e) if the article had been prepared, packed or kept under insanitary
conditions whereby it has become contaminated or injurious to health;

(f) ifthe article consists wholly or in part of any filthy, putrid, rotten, G
decomposed or diseased animal or, vegetable substance or is insect-
infested or is otherwise unfit for human consumption;

Under clause (viiib) "manufacture" includes any process incidental or
ancillary to the manufacture of an article of food. "Food" is also defined to
mean any article used as food or drink for human consumption (Section 2(v) H
18 SUPREME COURT REPORTS (1997) SUPP. 5 S.C.R.

A Section 16 of the Act prescribes penalties for contravention of the provisions
of the Act. The sentence can vary from minimum imprisonment of three to six
months to two or three years and imposition of prescribed amount of fine.

If we look at the Act and the Rules the primary duty for enforcement
of the provisions of the Act is on the Food Inspector and Public Analyst
B appointed under the Act. Powers of Food Inspector and procedure to be
followed by him are prescribed. Under Section 20 of the Act no prosecu!ion
for an offence under the Act except for offences under Sections 14 and I4A
shall be instituted except with the written consent of the Central Government
or the State Government or a person authorised in that behalf by general or
C special order, by the Central Government or the State Government. However,
there is proviso to the section under which a purchaser can also file a
complaint and this reads as under :

"Provided that a prosecution for an offence under this Act may be
instituted by a purchaser [or recognised consumer association) referred
D to in Section 12, if he [or it] produces in court a copy of the report
of the public analyst along with the complaint."

Under Section 12 of the Act a purchaser may also have food analysed.
This Section reads as under :

E "12. Purchaser may have food analysed - Nothing contained in this
Act shall be held to prevent a purchaser of any article of food other
than a food inspector or a recognised consumer association, whether
the purchaser is a member of that association or not, from having such
article analysed by the public analyst on payment of such fees as may
be prescribed and from receiving from the public analyst a report of
F his analysis :

Provided that such purchaser or recognised consumer association
shall inform the vendor at the time of purchase of his or its intention
to have such article so analysed :

G Provided further that the provisions of sub-section (1 ), sub-section
(2) and sub-section (3) of Section 11 shall, as far as may be, apply to
a purchaser of article of food or recognised consumer association who
or which intends, to have such article so analysed, as they _!!pply to
a food inspector who takes a sample of food for analysis :

H Provided also that if the report of the public analyst shows that the
PEPSI FOODS LTD. v. S..I. MAGISTRATE [D.P. WADHWA, .1.] 19
article of food is adulterated, the purchaser or recognised consumer A
association shall be entitled to get refund of the fees paid by him or
it under this section."

In Section 12 we find reference of Section 11 which is reproduced as
under : •
B
'' 11. Procedure to be followed by food inspectors. - (I) When a
food inspector takes a sample of food for analysis, he shall -

(a) give notice in writing then and there of his intention to have
it so analysed to the person from whom he has taken the sample and
to the person, if any, whose name, address and other particulars have C
been disclosed under Section 14-A;

(b) except in special cases provided by rules under this Act,
divide the sample then and there into three parts and mark and seal
or fasten up each part in such a manner as its nature permits and take
the· signature or thumb-impression of the person from whom the D
sample has been taken in such place and in such manner as may be
prescribed :

Provided that where such person refuses to sign or put his thumb-
impression the food inspector shall call upon one or more witnesses
and take his or their signatures or thumb-impressions, as the case may E
be, in lieu of the signature or thumb-impression of such person;

(c) (i) send one of the parts for analysis to the public analyst under
intimation to the Local (Health) Authority; and

(ii) send the remaining two parts to the Local (Health) Authority for p
the purposes of sub-section (2) of this Section and sub-section (2-A)
and (2-E) of Section 13.

(2) Where the part of the sample sent to the public analyst under
sub-clause (i) of clause (c), of sub-section (I) is lost or damaged, the
Local (Health) Authority shall, on a requisition made to it by the G
public analyst or the food inspector, despatch one of the parts of the
sample sent to it under sub-clause (ii) of the said clause (c) to the
public analyst for analysis.

(3) When a sample of any article of food [or adulterant] is taken
under sub-section (I) or sub-section (2) of Section 10, [the food H
20 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A inspector shall, by the immediately succeeding working day, send a
sample of the article of food or adulterant or both, as the case may
be], in accordance with the rules prescribed for sampling to the public
analyst for the local area concerned."

Section 13 deals with the report of the public analyst. It provides,
B among other things, that a public analyst shall deliver, in such form as may
be prescribed, a report of the result of the analysis of any article of food
submitted to him for analysis. Any document purporting to be a report signed
by a public analyst, subject to certain inspections, may be used as evidence
of the facts stated therein in any proceeding under the Act (Section 13(5)).
C Since no argument was addressed before us on the violation of Section 13(2)
read with Rule 9-A we do not think it necessary either to set out or to refer
to the same.

The Code provides the procedure as to how a complaint can be filed
and how the court will proceed in the matter. (The word 'court' and 'magistrate'
D are synonymous here) Since for an offence under the Act imprisonment for
a term exceeds two years it would be a case tried as warrant-case. One of the
modes by which a court can take cognizance of an offence is on filing of a
complaint containing facts which constitutes such offence. A Magistrate
taking cognizance of an offence on complaint shall examine upon oath the
complainant and the witnesses present, if any, and the substance of such
E examination shall be reduced to writing and shall be signed by the complainant
and the witnesses, and also by the Magistrate (Sections 190 and 200 of the
Code). If in the opinion of a Magistrate taking congnizance of an offence
there is sufficient ground for proceedings, and the case appears to be a
warrant case, he may issue a warrant, or, if he thinks fit, summons for causing
F the accused to be brought or to appear before him on a date fixed by him
(sub-section (I) of section 204). Whenever a Magistrate issues a summon, he
may, if he sees reasons so to do, dispense with the personal attendance of
the accused and permit him to appear by his pleader (sub-section (I) of
Section 205). In the present case though it was a warrant case the first
respondent issued summon but he did not dispense with personal attendance
G of the accused. Chapter XIX-B of the Code provides for trial of warrant cases
instituted on a complaint. We may note Sections 244 and 245 falling under
this Chapter:

"244. Evidence for prosecution - (I) When, in any warrant-case
instituted otherwise than on a police report, the accused appears or
H is brought before a Magistrate, the Magistrate shall proceed to hear

I
PEPSI FOODS LTD. v. S.J. MAGISTRATE [D.P. WADHWA, .1.) 21
•
the prosecution and take all such evidence as may be produced in A
support of the prosecution.

(2) The Magistrate may, on the application of the prosecution,
.... issue a summons to any of its witnesses directing him to attend or
to produce any document or other thing.
B
245. When accused shall be discharged .-(I) If, upon taking all the
evidence referred to in section 244, the Magistrate considers, for
reasons to be recorded, that no case against the accused has been
made out which, if unrebutted, would warrant his conviction, the
magistrate shall discharge him.
c
(2) Nothing in this section shall be deemed to prevent a Magistrate
from discharging the accused at any previous stage of the case if, for
reasons to be recorded by such Magistrate, he considers the charge
; to be groundless."

Section 246 and other sections provide for the procedure where the D
accused is not discharged and they are not relevant for our purpose. Section
482 of the Code saves inherent powers of the High Court and this Section
is as under :

"Noth;ng in this Code shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as may be E
necessary to give effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends
of justice.''

Under Article 227 of the Constitution of India High Court has power of
superintendence over courts. Clause (I) provides that every High Court shall F
have superintendence over all courts and tribunals throughout the territories
in relation to which it exercises jurisdiction. High Court has power to issue
certain writs, orders and directions under Article 226 of the Constitution.
Clause (I) of Article 226, which is relevant, is as under :
G
"(!)Notwithstanding anything in article 32 every High Court shall
have power, throughout the territories in relation to which it exercises
jurisdiction, to issue to any person or authority, including in
appropriate cases, any Government, within those territories directions,
orders or writs, including [writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or any of them, H
22 SUPREME COURT REPORTS (1997] SUPP. 5 S.C.R.
0

A for the enforcement of any of the rights conferred by Part III and for
any other purposes .)"

Having set out the relevant provisions of law to some extent and before
we consider the merits and demerits of the case and the jurisdiction of the
High Court under Articles 226 and 227 of the Constitution, we may refer to
·-
B the complaint and the evidence which led the 1st respondent to issue summons
to the appellants and others for an offence under Section 7 of the Act.

The complainant (second respondent) is a student. He says that he is
appearing in examinations of various State and Central Services. On September
13, 1993, he went to a shop known as "The Flavours Fast Food and Cool
C Corner" and purchased 500 ml. chilled bottle of 'Lehar Pepsi' for drinking.
Nitin Sachdeva is stated to have (Accused named as No. 1) sold the bottle
. to the complainant . After he had consumed the beverage contained in the
bottle, the complainant felt a strange taste. On observation, he found that the
bottle contained many white particles. The. complainant felt giddy and
D nauseated. One Divya Trivedi was present at the shop as a customer. Another
shopkeeper by the name Lal Bahadur Singh who owned a shop opposite to
from where the complainant purchased the 'Lehar Pepsi' bottle was also
present. They were shown the bottle by the complainant. The beverage was
put in two glasses to see the white particles clearly and Nitin Sachdeva
accepted the presence of the particles. Suspecting adulteration, the complainant
E told Nitin Sachdeva that he would take sample of the beverage for analysis.
He thereupon gave notice to Nitin Sachdeva, purchased three clean and dry
empty new plastic jars from nearby Suri Stores and filled up the same with
the beverage and which,- according to the complainant, were sealed as per
rules, wrapped in the paper and tied with thick yarn. Nitin Sachdeva signed
the jars and put stamp of his shop thereon. The complainant obtained the
F
stamp of the shop "The Flavour Fast Food and Cool Corner" on a separate
paper and one jar of the sample with stamp used in the sample was deposited
by the complainant in the office of the State Public Analyst, Uttar Pradesh,
Lucknow on September 20, 1993 for analysis. The complainant says that the
three jars were sealed in the presence of the witnesses and he also recorded
G their statements in writing including that ofNitin Sachdeva. The complainant
also made a report to the police on September 13, 1993 itself about the
incident.

The complainant then started making enquiries. Crown cap of the bottle
had the words "Residency Foods and Beverages, Satari, Jaunpur" printed.
H Nitin Sachdeva told the complainant that the bottle was supplied by the

r
PEPSI FOODS LTD. v. S.J. MAGISTRATE [D.P. WADHWA, .l.J 23
distributor "A. Kumar & Company", Lucknow whose proprietor was A.K. A
Jain (Accused No. 2 and 3). The complainant was also told that A.K. Jain was
the person responsible for conduct of the day-to-day business of A.K. Kumar
and Company. Nitin Sachdeva also informed the complainant that marketing
of Lehar Pepsi was done by "Taj Service Ltd." Lucknow (Accused No. 4).
From A.K. Jain, the complainant learnt that Anil Nigam (Accused No. 5) was
the person responsible for the conduct of business of Taj Services Ltd. Yet, B
on further enquiry, the complainant learnt that bottling of Lehar Pepsi was
done by Residency Foods and Beverages Ltd., Jaunpur (Accused No. 6) and
Mr. N.K. Hariharan (Accused No 7) was the manager and person responsible
for the conduct of day-to-day business of the said company and Mark Yadav
(Accused No. 8) was the Distribution Manager of that company. V .S. Gurmany C
has been pleaded as Accused No. 9 being the Director of Residency Foods
and Beverages Ltd. The complainant then states that "upon enquiry and
information from A.K. Jain, it was learnt that the manufacturer of the bottle
of sample is "Pepsi Foods Ltd.", New Delhi (Accused No, I 0) and its incharge
and the person responsible for conduct of business is Ravi Dhariwal, Executive
Director (Accused No. 11) and P.M. Sinha (Accused No. 12) its Managing D
Director. The complainant then says that he personally contacted Ravi Dhariwal
on December 4, 1993 who asked Subrat Padhi, Field Manager to look into the
grievance of the complainant but no action was taken. The State Public
Analyst, Lucknow gave his report on October 29, 1993 and expressed his
opinion that due to the presence of fungus in the sample, the sample was E
adulterated. The complainant says that out of the two jars of the sample , he
had deposited one jar with N itin Sachdeva and other one was in his possession.
The complainant then says that the he was taken serious ill and could recover
I
only after two months. That is all the complaint is about. On the basis of these
) allegations, the complainant alleges that Accused No~. I to 12, by selling,
distributing, manufacturing and marketing adulterated and harmful for.health F
r
'Lehar Pepsi, have committed an offence under Section 7(1) of the Act which

~ is punishable under Section 16(1 A) of the Act. With the complaint, report of
the Public Analyst was filed.

In the order dated May 9, 1994, summoning the accused, the I st
respondent very briefly records the averments made in the complaint and then G
notes as under :
"In support of the complaint allegations, the Complainant has recorded
his statement and presented the statement on oath of the witness Lal
Bahadur Singh and as documentary evidence notice annexure-1, receipt
for deposit of the bottle of sample for analysis with Public Analyst H
24 SUPREME COURT REPORTS (1997] SUPP. 5 S.C.R.

A annexure-3A and application to the Public Analyst for analysis
annexure-3-8, report of the incident with P.S. Ghazipur annexure-4,
cash memo issued by the vendor annexure-5, statement of Executive
Director of Pepsi Foods Ltd. annexure-6, report of the Public Analyst
annexure 7A and 78 and prescriptions of the doctor for treatment
have been filed."
B
Then the first respondent records that on the basis of the evidence
available on record, prima facie, it appeared that the complainant got the
sample sealed and analysed in accordance with the procedure prescribed
which sample was found to be adulterated. He, therefore, ordered that "based
C on the evidence available on record, I, primafacie, find that the accused Nos.
I to 12 have committed offence under Section 7/16 of the Prevention of Food
and Adulter~tion Act. Accordingly, accused Nos. I to 12 are directed to
appear before Court on 23.05.1994 through summons."

When the summons were served on the appellants, they approached
D the High Court seeking reliefs as aforementioned but the High Court declined
to interfere.

The questions which arise for consideration are if in the circumstances
of the case, the appellants rightly approached the High Court under Articles
226 and 227 of the Constitution and if so, was the High Court justified in
E refusing to grant any relief to the appellants because of the view which it took
of the law and the facts of the case. We have, thus, to examine the power
of the High Court under Articles 226 and 227 of the Constitution and Section
482 of the Code.

It is settled that High Court can exercise its power of judicial review in
F criminal matters. In State of Haryana and others v. Bhajan Lal and others,
[1992] Supp. I SCC 335, this Court examined the extraordinary power under
Article 226 of the Constitution and also the inherent powers under Section
482 of the Code which it said could be exercised by the High Court either to
prevent abuse of the process of any court or otherwise to secure the ends
G of justice. While laying down certain guidelines where the court will exercise
jurisdiction under these provisions, it was also stated that these guidelines
could not be inflexible or laying rigid formulae to be followed by the courts.
Exercise of such power would depend upon the facts and circumstances of
each case but with the sole purpose to prevent abuse of the process of any
court or otherwise to secure the ends of justice. One of such guidelines is
H where the allegations made in the first information report or the complaint,

r
PEPSI FOODS LTD. v. S.J. MAGISTRATE [D.P. WADHWA, J.] 25
even if they are taken at their face value and accepted in their entirety do not A
prima ~<1cie constitute any offence or make out a case against the accused.
Under Article 227 the power of superintendence by the High Court is not only
of administrative nature but is also of judicial nature. This article confers vast
powers on the High Court to prevent the abuse of the process of law by the
inferior courts and to see that the stream of administration of justice remains B
clean and pure. The power CQnferred on the High Court under Articles 226
and 227 of the Constitution and under Section 482 of the Code have no limits
but more the power more due care and caution is to be exercised invoking
these powers. When the exercise of powers could be under Article 227 or
Section 482 of the Code it may not always be necessary to invoke the
provisions of Article 226. Some of the decisions of this Court laying down C
principles for the exercise of powers by the High Court under Article 226 and
227 may be referred to.

In Wa1J1am Singh and another v. Amarnath and another, AIR (1954) SC
215 = [1954] SCR 565 this Court considered the scope of Article 227. It was
held that the High Court has not only administrative superintendence over D
the subordinate courts and tribunals but it has also the power of judicial
superintendence. The Court approved the decision of the Calcutta High Court
in Dalmia Jain Airways ltd. v. Sukumar Mukherjee, AIR (1951) Cal 193 SB
where the High Court said that the power of superintendence conferred by
Article 227 was to be exercised most sparingly and only in appropriate cases E
in order to keep the Subordinate Courts within the bounds of their ·authority
and not for correcting their mere errors. The Court said that it was, therefore,
a case which called for an interference by the Court of the Judicial
Commissioner and it acted quite properly in doing so.

In Babhutmal Raichand Oswal v. Laxmib.ai R. Tarte and another, AIR F
(1975) SC 1297 = [1975] 1 SCC 858 this Court again reaffirmed that the power
of superintendence of High Court under Article 227 being extraordinary was
to be exercised most sparingly and only in appropriate cases. It said that the
High Court could not, while exercising jurisdiction under Article 227, interfere
with the findings of fact recorded by the subordinate court or tribunal and G
that its function was limited to seeing that the subordinate court or tribunal
functioned within the limits of its authority and that it could not correct mere
· errors of fact by examining the evidence or reappreciating it. The Court further
said that the jurisdiction under Article 227 could not be exercised, "as the
cloak of an appeal in disguise. It does not lie in order to bring up an order
or decision for rehearing of the issues raised in the proceedings." The Court H
26 SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A referred with approval the dictum of Morris, L.J. in Rex v. Northumberland
Compensation Appeal Tribunal, (1952) I All ER 122.

In Nagendra Nath Bora·v. The Commissioner of Hills Division, (1958)
SCR 1240 this Court observed as under :

B "It is thus, clear that the powers of judicial interference under Art. 227
of the Constitution with orders of judicial or quasi-judicial nature, are
not greater than the power under Art. 226 of the Constitution. Under
Art. 226 the power of interference may extend to quashing an impugned
order on the ground of a mistake apparent on the face of the record.
But under Art. 227 of the Constitution, the power of interference is
C limited to seeing that the tribunal functions within the limits of its
authority."

Nomenclature under which petition is filed is not quite relevant and that
does not debar the court from exercising its jurisdiction which otherwise it
possesses unless there is special procedure prescribed which procedure is
D mandatory. If in a case like the present one the court finds that the appellants
could not invoke its jurisdiction under Article 226, the court can certainly treat
the petition one under Article 227 or Section 482 of the Code. It may not
however, be lost sight of that provisions exist in the Code of revision and
appeal but sometime for immediate relief Section 482 of the Code or Article
E 227 may have to be resorted to for correcting some grave errors that might
be committed by the subordinate courts. The present petition though filed in
the High Court as one under Articles 226 and 227 could well be treated under
Article 227 of the Constitution.

We have not been able to understand as to why it was necessary for
F the appellants to implead the·first respondent as a party to the proceedings.
There are no allegations of personal bias against the presiding officer. A court
is not to be equated with a tribunal exercising quasi judicial powers. We
would, therefore, strike out the name of the 1st respondent from the array of
the parties.

G Summoning of an accused in a criminal cases is a serious matter. Criminal
law cannot be set into motion as a matter of course. It is not that the
complainant has to bring only two witnesses to support his allegations in the
complaint to have the criminal law set into motion. The order of the magistrate
summoning the accused must reflect that he has applied his mind to the facts
of the case and the law applicable thereto. He has to examine the nature of
H allegations made in the complaint and the evidence both oral and documentary
PEPSI rooos LTD. v. S..I. MAGISTRATE [D.P. WADHWA, .I.] 27

.. in support thereof and would that be sufficient for the complainant to succeed A
in bringing charge home to the accused. It is not that the Magistrate is a silent
spectator at the time of recording of preliminary evidence before summoning
of the accused. Magistrate has to carefully scrutinise the evidence brought
on record and may even himself put questions to the complainant and his
witnesses to elicit answers to find out the truthfulness of the allegations or B
otherwise and then examine if any offence is primafacie committed by all or
any of the accused.

No doubt the magistrate can discharge the accused at any stage of the
trial if he considers the charge to be groundless, but that does not mean that
the accused cannot approach the High Court under Section 482 of the Code C
or Article 227 of the Constitution to have the proceeding quashed against him
when the complaint does not make out any case against him and still he must
undergo the agony of a criminal trial. It was submitted before us on behalf
of the State that in case we find that the High Court failed to exercise its
jurisdiction the matter should be remanded back to it to consider if the
complaint and the evidence on record did not make out any case against the D
appellants. If, however, we refer to the impugned judgment of the High Court
it has come to the conclusion, though without referring to any material on
record, that "in the present case it cannot be said at this stage that the
allegations in the complaint are so absurd and inherently improbable on the
basis of which no prudent man can ever reach a just conclusion that there E
exists no sufficient ground for proceedings against the accused." We do not
think that the High Court was correct in coming to such a conclusion and in
coming to that it has also foreclosed the matter for the magistrate as well, as
the magistrate will not give any different conclusion on an application filed
under Section 245 of the Code. The High Court says that the appellants could F
very well appear before the court and move an application under Section
245(2) of the Code and that the magistrate could discharge them if he found
the charge to be groundless and at the same time it has itself returned the
finding that there are sufficient grounds for proceeding against the appellants.
If we now refer to the facts of the case before us it is clear to us that not
only that allegations against the appellants do not make out any case for an G
offence under Section 7 of the Act and also that there is no basis for the
complainant to make such allegations. The allegations in the complaint merely
show that the appellants have given their brand nam~ to "Residency Foods
and Beverages Ltd.'' for bottling the beverage ''Lehar Pa psi''. The complaint
does not show what is the role of the appellants in the manufacture of the H
28 SUPREME COURT REPORTS [1997] SliPP. 5 S.C.R.

A beverage which is said to be adulterated. The only allegation is that the
appellants are the manufacturer of bottle. There is no averment as to how the
complainant could say so and also if the appellants manufactured the alleged
-
bottle or its contents. His sole information is from A.K. Jain who is impleaded •
as accused No. 3. The preliminary evidence on which the !st respondent
B relied in issuing summon. to the appellants also does not show as to how it
could be said that the appellants are manufacturers of either the bottle or the
beverage or both. There is another aspect of the matter. The Central Government
in the exercise of their powers under Section 3 of the Essential Commodities
Act, 1955 made Fruit Products Order, 1955 (for short, the "Fruit Order"). It is
not disputed that the beverage in the question is a "fruit product" within the
C meaning of clause (2)(b) of the Fruit Order and that for the manufacture
thereof certain licence is required. The Fruit Order defines the man~facturer
and also sets out as to what the manufacturer is required to do in regard to
the packaging, marking and labelling of containers of fruit products. One of
such requirement is that when a bottle is used in packing any fruit products,
D it shall be so sealed that it cannot be opened without destroying the licence
number and the special identification mark of the manufacturer to be displayed
on the top or neck of the bottle. The licence number of manufacturer shall
also be exhibited prominently on the side label on such bottle [clause (8) ( 1)
(b) ]. Admittedly, the name of the first appellant is not mentioned as a
manufacturer on the top cap of the bottle. It is not necessary to refer in detail
E to other requirements of the Fruit Order and the consequences of infringement
of the Order and to the penalty to which the manufacturer would be exposed
under the provisions of the Essential Commodities Act, 1955. We may, however,
note that in The Hamdard Dawakhana .(WAKF) Delhi & Anr. v. The Union
of India & Ors., AIR (1965) SC 1167 = [1965] 2 SCR 192, an argument was
raised that the Fruit Order was invalid because its provision indicated that it
F was an Order which could have been appropriately issued under the Prevention
of Food Adulteration Act, 1954. This Court negatived this plea and said that
the Fruit order was validly issued under the Essential Commodities Act. What
we find in the present case is that there was nothing on record to show if
the appellants held the licence for the manufacture of the offending beverage
G and if, as noted above, the first appellant was the manufacturer thereof.
It is no comfortable thought for the appellants to be told that they could
appear before the court which is at a far off place in the Ghazipur in the State
of Uttar Pradesh, seek their release on bail and then to either move an
application under Section 245(2) of the Code or to face trial when the complaint
H and the preliminary evidence recorded makes out no case against them. It is
PEPSI FOODS LTD. v. S.J. MAGISTRATE [D.P. WADHWA, J.] 29
certainly one of those cases where there is an abuse of the process of the A
~
I law and the courts and the High Court should not have shied away in
exercising its jurisdiction. Provisions of Articles 226 and227 of the Constitution
and Section 482 of the Code are devised to advance justice and not to
frustrate it. In our view High Court should not have adopted such a rigid
approach which certainly has led to miscarriage of justice in the case. Power B
of judicial review is discretionary but this was a case where the High Court
should have exercised it.

We, therefore, allow this appeal, set aside the order of the High Court
and quash the complaint and proceeding against the appellants.

S.V.K.I. Appeal allowed. C