JUDGMENT

A.P. Srivastava, J.

This is a reference by the Sessions Judge of Meerut recommending that the conviction of the applicant u/s 188, IPC and the consequent sentence of a fine of Rs. 25 imposed upon him be set aside.

2. It appears that u/s 2 of the Epidemic Diseases Act, 1897 the Public Health Department had issued a notification bearing No. 2382/XVI (PH) 85-55, dated 6-4-1955 which, inter alia, provided that no person should sell sweetmeats without proper covering or container to protect them from dust and flies. Shiva Charan was found selling sweetmeats unprotected from dust and flies on 7-7-1955 and a complaint was filed against him at the instance of the Food Inspector of Ghaziabad by the District Medical Officer of Health for Meerut. The Magistrate took cognizance of the case, tried Shiva Cnaran, found him guilty u/s 188, IPC and sentenced him to pay a fine of Rs. 25 and in default to undergo 15 days simple imprisonment. Shiva Charan went up in revision to the Sessions Judge of Meerut and raised two contentions one of which found favour with the learned Judge. That contention was that the learned Magistrate could not have taken cognizance of the offence against Shiva Charan in view of S. 195 (1) (a), Code of Criminal Procedure because the regulation which Shiva Charan was said to have broken had been issued by the Secretary to the UP Government in the Public Health Department and the complaint, before cognizance could be taken in respect of it, should have been made either by the Secretary himself being the public Officer concerned or by some officer to whom he was Subordinate. Accepting this contention and being of opinion that the trial of Shiva Charan was without jurisdiction the learned Sessions Judge has recommended that his conviction and sentence be quashed.

3. Sri J.R. Bhatt, Learned Counsel for the State, opposes the reference, and the ground he puts forward is that the regulation which Shiva Charan was said to have broken was not a regulation issued by a public servant at all. It was really a regulation issued by the Government and for the breach of such a regulation it is not necessary that a complaint should be filed by a public servant before cognizance can be taken of the offence by a Magistrate. In support of this contention he relied on a decision of the Madras High Court reported in Queen Empress v. South ILR 24 Mad. 70.

4. No doubt the authority relied upon supports the contention of Mr. Bhatt. In that case also two persons had disobeyed an order promulgated by the Government under the Epidemic Diseases Act, and had been prosecuted on a complaint made by the Chairman of the Municipal Board within the limits of which the order had been broken. They had been acquitted by the Magistrate who tried them on the ground that the complaint had not been filed by the proper person, but the acquittal was set aside by the High Court on the ground that the order in question not having been promulgated by a public servant but by the Government it was not necessary that a complaint for their breach should have been filed by a public servant or an officer superior to him. The point which, however, does not appear to have been considered by the learned Judges who decided the Madras case appears to be that if an order is not promulgated by a public servant but is promulgated by the Government, S. 188, IPC will in terms become inapplicable. That section can apply only if an order duly promulgated by a public servant is disobeyed. To meet this difficulty Mr. Bhatt referred to S. 3 of the Epidemic Diseases Act which provides:

Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable u/s 188 of the IPC." Relying on this section he contended that for the breach of a regulation promulgated by the Government under the Epidemic Diseases Act, S. 188, IPC would apply even though the essential requirements of the section according to the section itself were not present.