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PETITIONER: M/S. PEPSI FOODS LTD. & ANR.

       Vs.

RESPONDENT: SPECIAL JUDICIAL MAGISTRATE & ORS.

DATE OF JUDGMENT:       04/11/1997

BENCH: SUJATA V. MANOHAR, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                THE 4TH DAY OF NOVEMBER, 1997 Present:                Hon’ble Mrs. Justice Sujata V. Manohar                Hon’ble Mr. Justice D.P.Wadhwa K.K.Venugopal,  Sr.  Adv.,  R.K.  Virmani,  Rizvi,  P.Varma, Advs., with him for the appellant In-person for the Respondent No.2 Yogeshwar Prasad,  Sr. Adv.,  and A.S. Pundir, Adv. with him for the Respondent No. 1 and 3                       J U D G M E N T      The following Judgment of the Court was delivered: D.P. Wadhwa, J.      Leave granted.      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 compliant filed  against them  under  Section  7  read  with Section 16  of the Prevention of Food 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-1  to      proceed with  case No.699  of  1994      (Anurag Narain  vs. Nitin  Sachdeva      and others;      (b) issue a writ of certiorari or a      writ, order  or  direction  in  the      nature of  certiorari quashing  the      proceedings in  Case o. 699 of 1994      together  with   the  consequential      order  dated   9.5.1994   and   the      complaint dated  6.5.1993 in so far      as it pertains to the petitioners;      (c) issue  a writ  of mandamus or a      writ, order  or  direction  in  the      nature of  mandamus commanding  the

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    Opposite  Party   Number-1  not  to      proceed with  the  Case  No.699  or      1994 during  the  pendency  of  the      aforesaid writ petition;      (d)  issue  any  other  appropriate      writ, order or direction which this      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 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  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, refused to entertain  the writ  petition  on  the  ground  that  the appellants should  approach the  1st  respondent  for  their discharge  under   Section  245  of  the  Code  of  Criminal Procedure (for  short ’the  Code’), if the 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 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 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 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 vs. Chaudhary Bhajan Lal and others  (JT 1990  (4) S.C.  650 [(1992) supp. 1 SCC 335] the court should interfere also did not find favour with the High Court.   It  was of  the opinion  that Chaudhary Bhajan Lal’s case  pertained to  a cognizable  offence where police had taken  cognizance of  the matter and in a complaint case the Magistrate was empowered to discharge the accused at any stage of  the trial  if it  was found  that the  charge  was groundless.      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

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summoned to  appear before  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 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  he sold  by a vendor is not      of the nature, substance or quality      demanded by the purchaser and is to      his prejudice,  or is  not  of  the      nature, substance  or quality which      it purports  or is  represented  to      be;      (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;      (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 thereof;      (e)  if   the  article   had   been      prepared,  packed   or  kept  under      insanitary  conditions  whereby  it      has    become    contaminated    or      injurious to health;      (f) if  the article consists wholly      or in  part of  any filthy, putrid,      rotten,  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).  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  appointed  under  the  Act. Powers of Food Inspector and procedure to be followed by him are prescribed.   Under Section 20 of the Act no prosecution for an  offence under  Act except for offences under Section 14 and  14A 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 special order, by  the central  Government or  the State Government. However, there  is proviso  to the  section  under  which  a

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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 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:      "12.  Purchaser   may   have   food      analysed.-  Nothing   contained  in      this act shall be held to prevent a      purchaser f  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 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;      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 apply  to a food inspector who      takes  a   sample   of   food   for      analysis;      Provided also that if the report of      the public  analyst shows  that the      article of food is adulterated, the      purchaser  or  recognised  consumer      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:      "11. Procedure  to be  followed  by      food inspectors,-  91) 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  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

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    manner as  its nature  permits  and      take  the   signature   or   thump-      impression of  the person from whom      the 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  the  signatures  or      thumb-impressions, as  the case may      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      the purposes  of sub-section (2) of      this Section  and sub-section (2-A)      and (2-F) 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 (1) is lost or damaged,      the Local (Health) Authority shall,      on a  requisition made to it by the      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 (1)  or sub-section (2)      of Section  10, [the food 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, 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  therein  in  any proceeding under the act (Section 13 (5)). 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’  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

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an  offence   on  complaint  shall  examine  upon  oath  the complainant and  the witnesses  present,  if  any,  and  the substance of  such examination  shall be  reduced to writing and shall  be signed by the complainant and the witness, and also by  the Magistrate  (Sections 190 and 200 of the Code). If in  the opinion  of a  Magistrate taking cognizance of an offence there  is sufficient  ground for proceeding, and the case appears  to be  a warrant case, he may issue a warrant, or, of  he thinks fit, summons for causing the accused to be brought or to appear before him on a date fixed by him (Sub- section (1) 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 (1) of Section 205).  In the present  case though  it was  a warrant  case the  first respondent issued  summons but  he  did  not  dispense  with personal attendance  of the  accused.   Chapter XIX-B of the Code provides  for trial  of warrant  cases instituted  on a complaint.   We may noted Sections 244 and 245 falling under this Chapter:      "244.  Evidence  for  prosecution.-      (1)  When,   in  any   warrant-case      instituted  otherwise   than  on  a      police report,  the accused appears      or is  brought before a Magistrate,      the  Magistrate  shall  proceed  to      hear the  prosecution and  take all      such evidence as may be produced in      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.      245.   When    accused   shall   be      discharged.-(1) 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.      (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". Under Article  227 of  the Constitution  of India High Court has  power   of  superintendence  over  courts.  Clause  (1) provides that  every High  Court shall  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 (1) of Article 226, which is relevant, is as under:      "(1)  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

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    in    appropriate     cases,    any      Government,      within       those      territories directions,  orders  or      writs,  including   [writs  in  the      nature of  habeas corpus, mandamus,      prohibition,  quo  warrant  to  and      certiorari, or any of them, 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 Article 226 and  227 of  the  Constitution,  we  may  refer  to  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 is various State and Central  Services. On  September 13,  1993, he went to a shop known  as "The  Flavours Fast Food and Cool Corner" and purchased 500  m1.  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 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  while particles clearly  and Nitin  Sachdeva accepted the presence of the  particles.  Suspecting adulteration, the complainant 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 hereby 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 yearn.   Nitin  Sachdeva signed the jars and put stamp of his  shop thereon.  The complainant obtained the 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 he 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  their statements in writing including that of  Nitin 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, Sataria,  Jaunpur" printed.   Nitin Sachdeva told the  complainant   with  the  bottle  was  supplied  by  the distributor "A.Kumar  & Company",  Lucknow whose  proprietor was A.K. 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

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conduct of  business of  Taj Services  Ltd. Yet,  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 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.10)  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  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 adulterated.   The  complainant says that out of the two jars of  the sample,  he had  deposited one  jar with  Nitin Sachdeva  and   other  one  was  in  his  possession.    The complainant then  says that  he was  taken serious  ill  and could recover  only after  two months.    That  is  all  the complaint is  about.   On the basis of thee allegations, the complainant alleges  that Accused  Nos. 1 to 12, by selling, distributing, manufacturing  and  marketing  adulterated  ad harmful for  health ’Lehar  Pepsi, have committed an offence under section  7(1) of  the Act  which is  punishable  under Section 16(1A)  of the  Act.    With the complaint report of the Public Analyst was filed.      In the  order dated May 9, 1994, summoning the accused, the 1st  respondent very  breifly records the averments made in the complaint and then 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 annexure-3A and      application to  the Public  Analyst      for analysis annexure-3B, report of      the  incident  with  O.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  annexures 7A and 7B      and prescriptions of the doctor for      treatment have been filed."      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 on the  evidence available  on record,  I, prima facie, find that the  accused Nos.1  to 12  have committed offence under Section 7/16 of the Prevention of Food and Adulteration Act. Accordingly, accused  Nos. 1  to 12  are directed  to appear before Court on 23.05.1994 through summons."

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    When the  summons were  served on  the appellants, they approached the  High Court seeking reliefs as aforementioned bu 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 refusing to  grant any  relief to  the appellants because of the view which it tool 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 criminal  matters.   In State of Haryana and others  vs. Bhajan Lal and others 1992 Supp (1) 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 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  the followed  by 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 guideline  is where  the allegations made in  the first information report or the complaint, even if they  are taken at their face value and accepted in their entirety do  not prima  facie 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 clean and pure,  The power conferred 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 principles  for the  exercise of powers by  the High  Court under Articles 226 and 227 may be referred to.      In Waryam  Singh and  another vs.  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 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. vs. 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 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  vs. Laxmibai R. Tarte and another [AIR  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

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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 that its function was limited to seeing that the subordiante 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 referred  with approval  the dictum of Morris, L.J. in Rex vs.  Northumberland Compensation Appeal Tribunal [1952-1 All ER 122].      In Nagendra  Nath Bora  vs. The  Commissioner of  Hills Division [1958 SCR 1240] this Court observed as under:      "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  of  the      Constitution,   Under Art 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  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 mandatory.  If in a case like the present one the court find 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  Cod. it  ay  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 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 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 arrary of the parties.      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 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 allegations made in the complaint and the evidence both oral

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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 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.      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 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 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 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 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 allegation against the appellants  make out  any  case  for  an  offence  under Section 7 of the Act and also that there is no basis for the complainant to make such allegation.  The allegations in the complaint merely  show that  the appellants have given their brand name  to "Residency  Foods  and  Beverages  Ltd."  for bottling the  beverage "Lehar Pepsi". The complaint does not shoe what  is the  role of the appellants in the manufacture of the  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 1st respondent 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  the 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 meaning of clause (2)(b) of the Fruit Order and that for the

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manufacture thereof  certain licence is required.  The fruit Order defines  the manufacturer and also sets out as to what the  manufacturer  is  required  to  do  in  regard  to  the packaging,  making  and  labeling  of  containers  of  fruit products.   One of such requirement is that when a bottle is used in  packing any  fruit products,  it shall be so sealed that it  cannot be  opened without  destroying  the  licence number  and   the  special   identification  mark   of   the manufacture 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 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. vs. 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 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  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  and  the  preliminary  evidence recorded makes out no case against the.  it is certainly one of those cases where there is an abuse of the process of the law and  the courts and the High Court should not have shied away in  exercising its jurisdiction. Provisions of Articles 226 and  227 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 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.