{"id":263242,"date":"2001-09-26T00:00:00","date_gmt":"2001-09-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/eciyo-coconut-oils-pvt-ltd-vs-state-of-kerala-on-26-september-2001"},"modified":"2014-08-04T08:43:40","modified_gmt":"2014-08-04T03:13:40","slug":"eciyo-coconut-oils-pvt-ltd-vs-state-of-kerala-on-26-september-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/eciyo-coconut-oils-pvt-ltd-vs-state-of-kerala-on-26-september-2001","title":{"rendered":"Eciyo Coconut Oils Pvt. Ltd. vs State Of Kerala on 26 September, 2001"},"content":{"rendered":"
Kerala High Court<\/div>\n
Eciyo Coconut Oils Pvt. Ltd. vs State Of Kerala on 26 September, 2001<\/div>\n
Equivalent citations: 2002 (1) ALT Cri 123, 2002 CriLJ 1087<\/div>\n
Author: G Sasidharan<\/div>\n
Bench: G Sasidharan<\/div>\n

ORDER<\/p>\n

G. Sasidharan, J.\n<\/p>\n

1. This petition is filed by accused 1 to 3 in S.T. No. 3175 of 2000 on the file of the
\nJudicial Magistrate of the First Class, Perumbavoor praying that the proceedings in the above case may be quashed. The above case was taken on file on the basis of a complaint filed by the Inspector of Legal Metrology, Perumbavoor alleging offences punishable under Sections 18<\/a>, 45<\/a>, 47<\/a>, 48<\/a>, 49<\/a>, 50<\/a>, 51<\/a> and 56<\/a> of the Standards of Weights and Measures (Enforcement) Act<\/a>, 1985, Rule 24 of the Standards of Weights and Measures
\n(Enforcement) Rules, 1992 and Rule 39 of the Standards of Weights and Measures
\n (Packaged Commodities) Rules, 1977. On an earlier occasion, the Inspector of Legal
\nMetrology filed a compliant against petitioners 1 and 2 for the same offences on the
\nbasis of the very same facts and that was taken on file by the learned Magistrate as
\nC.C.No. 1132 of 1997. In the course of trial of the above case, a petition was filed for
\nwithdrawal of the complaint and the court acquitted petitioners 1 and 2. It is after the
\nacquittal of accused 1 and 2 that the present compliant has been filed against the
\npetitioners for the same offences on the basis of the same set of facts. The petitioners would say that the compliant now filed against them is not maintainable in law because it is barred by limitation under Section 468<\/a> Cr. P.C. The proceeding against petitioners 1 and 2 is stated to be not maintainable as there is specific bar for prosecuting them under Section 300<\/a> Cr. P.C.\n<\/p>\n

2. In the first complaint given by the Inspector of Legal Metrology, petitioners 1 and 2 were mentioned as the accused. After withdrawing the complaint, a fresh complaint was filed making the third petitioner also as one of the accused. The petitioners would say that the first complaint was withdrawn for the purpose of making the third petitioner also one of the accused. It is not disputed that when the respondent gave a petition for permission to withdraw the compliant, permission was granted by the court and petitioners 1 and 2 who were accused in the above complaint were acquitted. It is maintained that since petitioners 1 and 2 were acquitted when permission was given for withdrawing the first complaint, no further prosecution can be taken against them for the same offences on the basis of the same set of facts. Section 300<\/a> Cr. P.C. provides that a person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, is not liable to be tried again for the same offence. Section 257<\/a> Cr. P.C. deals with the withdrawal of complaint. The above provision says that when the Magistrate permits the complainant to withdraw the complaint, the accused against whom the complaint is so withdrawn has to be acquitted. The question to be considered here is whether there was an acquittal of petitions 1 and 2 in the private complaint and whether their acquittal was after being tried. Section 300<\/a> Cr. P.C. does not say that for having a trial of the accused, the entire evidence against him has to be taken and the acquittal has to be one made on finding the accused did not commit the offence after appreciating the entire evidence. Section 300<\/a> Cr. P.C. takes in acquittal made during the course of trial. Even if an accused is acquitted during the course of trial before taking the entire evidence, the accused can be said to be a course of trial before taking the entire evidence, the accused can be said to be a person who has once been tried and acquitted. What is necessary for the application of Section 300<\/a> Cr. P.C. is that trial of the case has commenced and acquittal has been made by the court of competent jurisdiction. IN a case instituted on the basis of a complaint, a petition for withdrawing the complaint can be filed by the complainant even before completing the trial of the case. Then also, what the court can do is to give permission for withdrawing the complaint and acquit the accused. In a case instituted on the basis of a complaint in which the trial has commenced, an application for withdrawal of complaint is filed and on the basis of that withdrawal of the complaint is allowed and the accused is acquitted, Section 300<\/a> Cr.P.C. will be applicable when another complaint is filed alleging commission of the same offences on the basis of the same set of facts.\n<\/p>\n

3. In Executive Officer, Karukutty Panchayat v. Devassy Joseph<\/a>, 1971 KLT 617, it was held that when there was an acquittal on a charge for non-payment of tax for any definite number of years, the prosecution laid again on the same charge for any one year included in the former charge would be hit by Section 403<\/a> of the old Code. There it was held that an order of acquittal could be passed in a Summons Case even if the summons is not served on the accused. An acquittal under Section 247<\/a> Cr.P.C. in such circumstances amounts to an acquittal after trial and Section 403<\/a> will come into operation. That was a case in which the complaint given alleging commission of offence was allowed to be withdrawn because there was misjoinder of charges and separate charge had to be filed against the accused in respect of each year’s default. The case was permitted to be withdrawn and the accused was acquitted. After that three separate complaints were against the accused for failure to pay professional tax for each year. The question which arose for consideration is whether the complaints were hit by the bar contained in Section 403<\/a> Cr.P.C. Relying on the observation made in Hari Dayal, Singha v. Bhajan Chandra Sha<\/a>, AIR 1961 Tripura 41, the Court observed that in summons case, the trial commences as soon as the Magistrate takes cognizance of the offence and issues summons to the accused. On pointing out Section 247<\/a> of the old Code, it is said that if the summons has been issued on complaint and upon the day appointed for the appearance of the accused, the complainant does not appear, the Magistrate shall acquit the accused. It was further observed that acquittal order can be made by the Court even if the summons has not been served. So, acquittal under Section 247<\/a> of the old Code is an acquittal after trial and hence Section 403<\/a> of the old Code would be applicable in such a case and the second complaint on the same facts and allegations cannot be entertained by the Magistrate.\n<\/p>\n

4. In State of Karnataka v. K.H. Annegowda<\/a>, AIR 1977 SC 357, what would be the effect of allowing withdrawal of prosecution on subsequent prosecution against an accused who has been committed for trial was allowed to be withdrawn by the Court of Session. The withdrawal was allowed after framing charge inspite of the fact that when allowing withdrawal of prosecution the court said that the accused was “discharged”. It was held that in effect that would be an acquittal for the reason that withdrawal of prosecution was allowed after framing charge. As per the provisions of the old Code, the charge is framed by the committing Magistrate and the Court of Session is merely given the power to alter or amend the charge if it thinks necessary to do so. Because of the above provision in the old Code, when the Court of Session commences the trial of an accused, there is already before it a charge framed by the Magistrate and hence the Sessions Judge who gives permission for withdrawal of prosecution can only acquit the accused.\n<\/p>\n

5. Explanation to Section 300<\/a> Cr.P.C. says that the dismissal of a complaint or the discharge of the accused is not an acquittal for the purpose of the section. In the explanation, the acquittal of an accused on allowing withdrawal of a complaint is not made mentioned of an it is not stated that such an acquittal cannot be treated as an acquittal for the purpose of the section. That also would indicate that the acquittal of an accused on allowing withdrawal of complaint will be an acquital as mentioned in Section 300<\/a> Cr.P.C. In so far as petitioners 1 and 2 are concerned, there is already an acquittal of those accused after trial in the previous proceedings and hence there is clear bar under Section 300<\/a> Cr.P.C. for instituting a subsequent complaint for the same offence.\n<\/p>\n

6. Section 468<\/a> Cr.P.C. provides that no court shall take cognizance of an offence after the expiry of the period of limitation. The present complaint was filed on 27.7.2000 and on the date of giving the complaint, the period of three years mentioned in Section 468(2)<\/a> Cr.P.C. was over. The period of three years after detecting the offence was over on 7.11.1999. The submission made is that since the Magistrate had taken cognizance of the offences after a lapse of three years, the proceedings have to quashed. Section 473<\/a> Cr.P.C. provides that any court may take cognizance of an offence after the expiry of the period of limitation if it is satisfied on the facts and in the circumstances of the case that delay has been properly explained or that it is necessary so to do in the interest of justice. The court took cognizance of the offences on the basis of the complaint without making any order condoning the delay. Section 473<\/a> Cr.P.C. provides that the court can take cognizance of the offence if the court is satisfied on the facts and circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interest of justice. A reading of Section 473<\/a> would make it clear that the satisfaction of the court regarding proper explanation given for the delay must precede taking cognizance of the offences. The court will be justified in taking cognizance of the offence only if the delay is properly explained and the court comes to the conclusion that the explanation given for the delay is sufficient for condoning the same. In joseph v. State of Kerala, 1989 (2) KLT 710, this court held that the court is not competent to take cognizance of the offence barred under Section 468<\/a> Cr.P.C. unless delay is condoned under Section 473<\/a> Cr.P.C. There is no case for the respondent that the court applied its mind regarding condonation of delay and that the court was satisfied that there was sufficient grounds for condoning the delay.\n<\/p>\n

7. In State of Maharashtra v. S.V. Dongre<\/a>, AIR 1995 SC 231, it was held by the Supreme Court that the delay in launching prosecution cannot be condoned without notice to the accused. No notice was given by the Court to the petitioners herein regarding consideration of the question of condoning the delay for launching the prosecution. That also would indicate that the court which took cognizance of the office against the petitioners on the basis of the complaint did not go into the question of condoning the delay and take a decision as to whether there was sufficient ground for condoning the delay. The learned Magistrate ought not to have taken cognizance of the offence on the basis of the complaint given by the respondent. Hence, I find that the proceedings in the case have to be quashed.\n<\/p>\n

The Crl. M.C. is hence allowed. The proceedings in S.T. No. 3175 of 2000 on the file of the Judicial Magistrate of the First Class, Perumbavoor is hereby quashed.<\/p>\n","protected":false},"excerpt":{"rendered":"

Kerala High Court Eciyo Coconut Oils Pvt. Ltd. vs State Of Kerala on 26 September, 2001 Equivalent citations: 2002 (1) ALT Cri 123, 2002 CriLJ 1087 Author: G Sasidharan Bench: G Sasidharan ORDER G. Sasidharan, J. 1. This petition is filed by accused 1 to 3 in S.T. No. 3175 of 2000 on the file […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-263242","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nEciyo Coconut Oils Pvt. 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