IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 555 of 2010()
1. GOPALAN
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.RENJITH B.MARAR
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :26/03/2010
O R D E R
K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
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W.A.No.555/2010
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Dated this, the 26th day of March, 2010
JUDGMENT
Balakrishnan Nair, J.
The writ petitioner is the appellant. The point that arises
for decision in this appeal is concerning the construction to be
placed on clause (i) of sub-rule (3) of Rule 5 of the Kerala
Abkari Shops Disposal Rules, 2002 (hereinafter referred to as
“the Rules”).
2. The brief facts of the case are the following:
The appellant was the licensee of T.S.No.22/2007-08 of Idukki
Excise Range. It was renewed for the years 2008-09 and 2009-
10 also. In the meantime, a crime was registered against him
as Crime No.7/2008 by the Excise Officials, alleging offences
under Sections 55(a) and 55(i) of the Kerala Abkari Act. The
final report in that case has been filed before the Judicial First
Class Magistrate’s Court, Idukki. The learned Magistrate took
cognizance of the offence and issued summons to the appellant.
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The appellant appeared and after hearing him, the case has
been committed, as per C.P.No.35/2009 to the Sessions Court,
Thodupuzha for trial. In view of the above developments, the
appellant apprehended that he may be disqualified from
participating in the auction, invoking the provisions under Rule 5
(3) of the Rules and therefore, the Writ Petition was filed,
seeking the following reliefs:
“(i) declare that the petitioner is entitled to
participate in the auction for conduct of toddy shop
included in the Group in which Toddy Shop
No.22/2009-2010 (Cheruthony) of the Idukki Excise
Range even though CR No.7/08 of the Idukki Excise
Range has been registered.
(ii) issue a writ in the nature of mandamus or
any other writ, direction or orders commanding the
respondents to permit the petitioner to participate in
the auction and to extend the privilege to the
petitioner for the conduct of the Toddy Shops
included in the Group consisting of the Toddy Shop
No.22/2009-10 (Cheruthony) of the Idukki Excise
Range for the year 2010-11.”
It was contended before the learned Single Judge that in view of
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Rule 5(3)(i) of the Rules, the appellant/writ petitioner can be
made ineligible to participate in the auction, if only the Sessions
Court has framed charge against him and the trial has
commenced. Only on commencement of the trial after the
framing of the charge, it can be said that he is charged with an
offence and prosecution proceedings are pending against him.
But, the learned Single Judge, relying on the decision of this
Court in Yesudas v. S.I. of Police [2008(1) KLT 245], took the
view that after the lodging of the F.I.R before the court and
during the period of investigation by the police, it can be held
that prosecution is pending against the appellant. In that view
of the matter, the Writ Petition was dismissed in limine. Hence
this appeal.
3. We heard the learned counsel for the appellant and also
the learned senior Government Pleader for the respondents. In
view of the proceedings pending before the learned Sessions
Judge, the appellant is not claiming preference under Section 5
(1)(a) of the Rules. But, he claims, he is eligible to participate
in the auction, if a proper construction is placed on clause (i) of
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sub-rule (3) of Rule 5 of the Rules. According to him, he can be
said to be charged with an offence only when the Sessions
Court frames charge against him after preliminary hearing. The
possibility of discharge of the accused by the learned Sessions
Judge cannot be ruled out. In this case, the charge is yet to
be framed. Only after framing the charge, it can be said that
prosecution proceedings are pending against him. In view of
the above legal position, the appellant submits, the
disqualification under sub-rule (3) of Rule 5 of the Rules is not
attracted in this case. The appellant relied on the decision of a
learned Single Judge of this Court in Vijayan v. Excise
Commissioner [2002(3) KLT 646], in support of his
submissions.
4. The learned senior Government Pleader, on the other
hand, submitted that the decision of this Court in Yesudas
(supra) lays down the correct legal position. Further, it is
pointed out that in this case, the Excise Officials have completed
the investigation and filed the final report under Section 173(2)
of the Cr.P.C. That means, the Excise Officials have filed the
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charge before the court. Therefore, it can be said that the
appellant is charged with the offence. Thereafter, the learned
Magistrate has taken cognizance and on finding that the offence
is exclusively triable by the Court of Sessions, committed the
same to the learned Sessions Judge for trial. So, prosecution
proceedings can be said to be pending, at any rate, from the
stage of the learned Magistrate taking cognizance of the
offence, if not from an earlier point of time, it is submitted.
5. We considered the rival submissions made at the Bar
and perused the materials on record. Rule 5(3)(i) of the Rules
reads as follows:
“5. The Grant of privilege of vending Toddy
shall be subject to the following conditions, namely:-
(1) ……………………………………………………..
(3) No applicant is eligible for the privilege of
any group if he:
(i) is charged with an offence relating to illicit
liquor or prosecution proceedings are pending against
such applicant before a court of law.”
In Vijayan’s case (supra), a learned Single Judge of this Court
held that only after framing charge, it can be said that the
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accused is charged with an offence. It was also held that only
thereafter, it can be said that prosecution proceedings are
pending against him. But, in Yesudas’s case (supra), another
learned Single Judge of this Court, while interpreting Section
320(2) of the Cr.P.C., held that after the registration of the
crime when investigation is going on, it can be held that
prosecution is pending against the accused before the court
concerned.
6. By filing the final report under Section 173(2) of the
Cr.P.C., the prosecution charges the accused with the offence.
On going through the report, the learned Magistrate takes
cognizance of the offence. If it is triable by the learned
Magistrate, charge will be framed against him, if it is a warrant
case. If it is a summons case, summary of the accusation will
be read out to the accused and his plea will be recorded.
Depending on the plea of the accused in both the cases, further
proceedings in the case will commence. The appellant
canvasses for a narrow interpretation of the provisions of the
rule and to understand it in the manner canvassed by him. The
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provisions of the rules have to be understood in the light of the
purpose behind them and also the meaning of the words as
understood in common parlance. Normally, upon receipt of an
information, the investigating officer registers a crime and
forwards the report to the learned Magistrate having jurisdiction
over the area. Thereafter, the investigation is completed by
preparing mahazars, seizing material objects, questioning the
witnesses, arresting the accused etc., and after completion of
the investigation the final report is filed under Section 173(2) of
the Cr.P.C. It contains a draft charge by the police also. So, as
far as the prosecution is concerned, at that stage the accused is
charged with an offence. The prosecution proceedings can,
definitely, be said to be pending before a court of law, once the
Magistrate takes cognizance of the offence and issues process
for the appearance of the accused. Having regard to the
scheme of the rules and the setting in which Rule 5(3) is
placed, we think, the narrow meaning attributed to the words of
the above rule that the accused can be said to be charged with
an office if only the court formally charges him and he is facing
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prosecution if only further proceedings are taken after framing
the charge, cannot be upheld. The appellant is disqualified if he
is charged with an offence relating to illicit liquor or prosecution
proceedings are pending against him. Either one of them is
sufficient to disqualify him. Even assuming he can be said to be
charged with an offence only on the court framing a charge
against him, we have no doubt in our mind that once the
learned Magistrate takes cognizance of the offence, it must be
held that prosecution proceedings are pending against him.
7. So, we think, the decision in Vijayan’s case (supra)
does not lay down the correct legal position. Since in this case,
the case is committed and is pending before the learned
Sessions Judge, it is unnecessary for us to decide whether the
appellant can be said to be facing prosecution on registration of
the crime, as held by this Court in Yesudas (supra). It will be a
hypothetical issue as far as this case is concerned. So, in view
of our above finding, the appellant is ineligible to apply for the
privilege to vend toddy in the toddy shop, by virtue of the
operation of Rule 5(3)(i) of the Rules.
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In the result, the Writ Appeal fails and it is dismissed.
K. Balakrishnan Nair,
Judge.
P.N.Ravindran,
Judge.
nm.