Jose vs State Of Kerala on 23 June, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 1088 of 2003()


1. JOSE S/O. MATHAI, THRIKKANBDIYUR, TIRUR,
                      ...  Petitioner
2. PRABHAKARAN S/O. KESAVAN NAIR,

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.P.VIJAYA BHANU

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :23/06/2009

 O R D E R
                       M.N. KRISHNAN, J.
                        ---------------------------
                     CRL.A.NO.1088 OF 2003
                        ------------------------------
              Dated this the 23rd day of June, 2009

                            JUDGMENT

This is an appeal preferred against the conviction and

sentence passed by the Sessions Judge, Fast Track Court No.I,

Manjeri in S.C.No.361/2001. Four accused were in the party

array and the 4th accused died and the present appellants are

accused 1 and 2 in the case before me. They were convicted

under Section 56(d) of the Abkari Act and directed to pay a

fine of Rs.2,000/= and in default, to undergo imprisonment for

six months. The police filed the charge sheet under Section

55(h) of the Abkari Act.

2. I am not going into the factual metrics in detail for the

reason that the materials available will show that the

prosecution itself is void. Admittedly, the case was detected by

a competent officer called the S.I of Police, but later, the

investigation as well as laying of the charge was done by the

Assistant Sub Inspector of Police. Under the provisions of the

Abkari Act by governmental notification, the Abkari officers

shall be only the person not below the rank of a Sub Inspector

2
CRL.A.NO.1088/03

of Police. A situation arose in Vikraman v. State of Kerala

(2007 (1) KLT 1010) where, the Assistant Sub Inspector

conducted later part of the investigation and laid the charge. A

learned Single Judge of this Court held that it will not vitiate

the trial. Later, the matter was referred to a Division Bench,

which resulted in Subash v. State of Kerala (2008 (2) KLT

1047). The question whether the decision rendered in

Vikraman’s case was right or not was considered by the

Division Bench of this Court in the said decision in Paragraph-7

of the judgment, which reads as follows:

“7. In Vikraman v. State of Kerala
(2007 (1) KLT 1010) it was held that the mere
fact that the Assistant Sub Inspector
conducted later part of investigation and laid
charge will not vitiate the trial. We are of the
opinion that on the plain reading of Section 50
of the Abkari Act the Magistrate has no
jurisdiction to take cognizance of the case as
the report was filed by a person other than
an Abkari Officer. Hence, Vikraman’s case
cannot be acceptable as an authoritative
decision that despite the mandate in S. 50
Magistrate can take cognizance of a report
filed by a person other than an Abkari officer.

In this connection we also refer to S.199(1)
and S.461(d) of Cr.P.C. An officer other than
an Abkari Officer as defined in the Act cannot
file a report even if investigation is conducted
by an Abkari Officer. When a report by a
specifically empowered officer is a condition

3
CRL.A.NO.1088/03

precedent or taking cognizance of an offence,
trial on a report by Assistant Sub Inspector of
Police is void.”

3. So, by the said decision, the dictum laid down in

Vikraman’s case is also overruled by the Division Bench.

Going by the factual matrix of this case, it is very clear that

further investigation and charge has been laid by the Assistant

Sub Inspector, who is not an Abkari officer as contemplated

under the provisions of the Abkari Act. Therefore, the whole

thing is void and the prosecution cannot lie at all. In the

Division Bench case, it was held that where it is only in the

process of charge and not of trial, there was a direction to

return those charges so that it can be filed by competent

officer later. So far as this case is concerned, as per the

dictum laid in Subash’s case, it has to be held that the

prosecution is void at the inception for lack of competency

and jurisdiction. Therefore, the conviction and sentence

passed by the trial court is liable to be set aside and I do so.

4. In the result, the criminal appeal is allowed. The

conviction and sentence passed by the trial court under

4
CRL.A.NO.1088/03

Section 56(d) of the Abkari Act is set aside. The accused are

found not guilty and are to be acquitted and are set at liberty

forthwith.

M.N. KRISHNAN, JUDGE

cl

5
CRL.A.NO.1088/03

6
CRL.A.NO.1088/03