Bhuvaneshwar Prasad, J.

1. This is an application under Sec.482 of the code of Criminal Procedure, 1973 (hereinafter called thecode. It is directed against the order dated 4-9-1982 passed by the Chief Judicial Magistrate, mctihari, in Suit No.61-OC/82 taking cognizance of the offence under Section 52 of the Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 (Bihar act 37/82 (hereinafter called the act against the present petitioners. Petitioner no.1 is one of the Directors of M/s. Sugauli Sugar Works Limited ; petitioner no.2 is the Welfare Officer-cum-Works Manager and petitioner No.3 is the manager of M/s Sugauli Sugar Works Limited which is a company incorporated under the Indian Companies Act.

2. It appears that the Cane Officer, Motihari (Opposite party No.2) had filed a prosecution report, dated 5-7-1982 against the present petitioners before the learned Chief Judicial Magistrate, Motihari. In this prosecution report the cane Officer alleged that M/s. Sugauli Sugar Works had set up several weigh bridge for purchase of sugarcane supplied to it. On 29-3-1982 "the Joint Cane commissioner held a spot inquiry and verified the weighment of cane carts by the employees of M/s. Sugauli Sugar Works Limited and the receipts issued to the suppliers. On inquiry it was found that Receipt No.44163, dated 29-3-1982 for 15.90 quintals was issued to one Harihar Rai. On the proper weighment the cart was found to be having only 16.20 quintals of sugarcane. Thus a deficiency of 30 kilograms was detected. Accordingly, he submitted a prosecution report under Sec.52 of the Act for contravention of Sec.39 of the Act. On the receipt of this report, the learned Chief Judicial Magistrate, Motihari took cognizance of the offence.

3. In this petition, apart from other grounds, it was submitted that Section 53 of the Act lays down that no prosecution shall be instituted except on the complaint made in writing by an officer authorised in this behalf by the State government. The prosecution report, however, shows that it was submitted by the Cane Officer and was only accepted by the Cane Commissioner. This is not in terms of the Notification No. B 5-012/69 C-1759, Patna, dated the 28th August, 1983 issued by the State Government.

4. The only point for decision before me is whether this petition is fit to be allowed or not.

5. On behalf of opposite party No.1 counter-affidavit has been filed. In this counter affidavit it has been contended that there,was the deficiency of 8 kg. in weighment and, therefore, the offence was clearly made out against the petitioners. It has further been contended that though Shri M. N.-Ojha was nominated under Sec.25 of the Act, this nomination was improper and invalid under the provision of this Act. It was further contended that since the cart was found to be under-weighed the prosecution was justified.

6. At the time of the hearing Mr. Farooque Ahmad Khan, the learned counsel appearing on behalf of the petitioners, has mainly relied on only one ground and has submitted that the cognizance in this case is bad inasmuch as the complaint petition was not filed in the proper way by a competent authority. In this connection, he has drawn my attention to Sec.53 of the Act which provides for the institution of the proceeding. It lays down that no prosecution under this Act shall be instituted except upon a complaint made in writing by any officer authorised in this behalf by the State Government.

7. In this connection, my attention has been drawn to Notification No. B 5-012/69-C-1759, Patna dated 28-8-1973 issued by the State Government. From this notification it would appear that four classes of officers were authorised to file the complaint petition under the Act. Under serial No.4 all the Cane officer of Bihar have been included. There is, however, a proviso after serial no.4 which runs as follows :

"provided a cane officer will exercise this power with the prior approval of the Cane Commissioner of Bihar. "