State of Kerala vs Gangadharan Nadar

Arijit Pasayat, C.J.—An interesting question has been raised in this reference. The effect of Section 50 of the Kerala Abkari Act, 1967 (in short ''the Abkari Act'') vis-a-vis Section 202 of the Code of Criminal Procedure, 1973 (in short ''the Code'') falls for eKamination in this case. Section 50 of the Abkari Act, prior to its substitution by the present provision by Act 16 of 1997, read as follows:

Report of Abkari Inspector gives jurisdiction to a competent Magistrate.- When an Abkari Inspector forwards in custody any person accused of an offence under this Act to the Magistrate having jurisdiction to try the case or admits any such person to bail to appear before such Magistrate such officer shall also forward to such Magistrate a report setting forth the name of the accused person and the nature of the offence with which he is charged and the names of the persons who appear to be acquainted with the circumstances of the case, and shall send to such Magistrate any article which it may be necessary to produce before him. Upon receipt of such report the Magistrate shall inquire into such offence and try the person accused thereof in like manner as if complaiment had been made before him as prescribed in the Code of Criminal Procedure, 1898.

After the amendment, it reads as follows:

Report of Abkari Officer gives jurisdiction to a Competent Magistrate.- (1) Every investigation into the offence under this Act shall be completed without unnecessary delay.

(2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with Sub-section (2) of Section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).

Section 50A of the Abkari Act is also relevant which reads as follows:

50A. Procedure to be adopted on receipt of reports.- Upon receipt of a final report from the Abkari Officer, the Magistrate shall inquire into such offence and commit to Court of Session if the offence is exclusively triable by Court of Session or to try the person accused thereof in like manner as if a case is instituted upon police report as provided in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).

Prior to its amendment, the Magistrate on receipt of the report from the Abkari Inspector was required to inquire into the offence and try the person accused in a manner as if complaint had been made to him as prescribed in the Code. Sub-section (2) of Section 202 of the Code deals with a case of this nature. Chapter XV of the Code deals with complaints to Magistrates. Under the proviso to Sub-section (2) of Section 202 of the Code, the complainant is required to produce all his witnesses and the Magistrate is required to examine them on oath. Chapter XIV which begins with Section 190 deals with "Conditions Requisite for Initiation of Proceedings". In cases exclusively triable by the Court of Sessions, procedure laid down in proviso to Section 202(2) of the Code requires strict compliance.

In the case at hand, the commitment was done to the Court of Session without following the procedure stipulated in the proviso. The position is different in so far as Sections 50 and 50A of the Abkari Act are concerned, as they stand at present. Obviously, the commitment could not have been done without following the procedure as stipulated in Sub-section (2) of Section 202 of the Code. That being a mandatory requirement, the Court of Session shall return the matter to the Committal Court for taking action as provided in law.

We set aside the order of commitment and direct the committing Court to take action as contemplated in the unamended provision of Section 50 of the Abkari Act read with Section 202(2) of the Code.

Criminal reference is answered accordingly.

*A reproduction from ILR (Kerala Series).