Kerala High Court
T.K.Joshi vs Tom Alex on 3 January, 2008
IN THE HIGH COURT OF KERALAATERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE B.P.RAY
THURSDAY,THE 7TH DAYOF NOVEMBER 2013/16TH KARTHIKA, 1935
Crl.MC.No. 2441 of 2010 ( )
----------------------------
CC 442/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERAMBRA
PETITIONERS /ACCUSED:
------------------------------------------
1. T.K.JOSHI, S/O. KUTTAPPAN,
SECRETARY,KOYILANDY TALUK KALLU CHETHU VYAVASAYA
THOZHILALI SAHAKARANA SANGHAM LTD.NO.2728
PANTHALAYANI DESOM, P.O.KOYILANDY, KOZHIKODE DISTRICT.
2. E.K.BABU, S/O. KRISHNAN,
EDATHUDI VEEDU, KOORACHUNDU VILLAGE, KOYILANDY TALUK
KOZHIKODE DISTRICT.
3. NARAYANANKUTTY,S/O. KRISHNAN,
EDATHUDI VEEDU, KANTHALADU VILLAGE, KOYILANDY TALUK
KOZHIKODE DISTRICT.
BY ADVS.SRI.P.K.SURESHKUMAR
SMT.N.N.PRASEEDA
RESPONDENTS/COMPLAINANT & STATE:
----------------------------------------------------------------------
1. TOM ALEX, S/O. CHANDI,
OZHUKAYIL, P.O.KALLANODU-673 615, KOYILANDY
KOZHIKODE DISTRICT.
2. THE STATE OF KERALA, REPRESENTED BY
ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
R BY PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLYHEARD ON
07-11-2013, THE COURT ON THE SAME DAYPASSED THE FOLLOWING:
Crl.MC.No. 2441 of 2010 ( )
APPENDIX
PETITIONERS' ANNEXURES :
ANNEXURE A1 : CERTIFIED COPY OF PRIVATE COMPLAINT DATED 3.1.2008
(C.C.NO.442/2009) FILED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE'S COURT-I, PERMBRA
ANNEXURE A2 : TRUE COPY OF LICENSE ISSUED TO KOYILANDY TALUK KALLU
CHETHU VYAVASAYA THOZHILALI SAHAKARANA SANGHAM LTD. NO.2728 BY
THE ASST.EXCISE COMMISSIONER, KOZHIKODE
RESPONDENTS' ANNEXURES : NIL
/TRUE COPY/
P.ATO JUDGE
AV
B.P.RAY, J.
------------------------------------
Crl.M.C.No. 2441 of 2010
-----------------------------------
Dated this the 7th day of November, 2013
O R D E R
Heard learned counsel for the petitioners, learned counsel for the respondent and the learned Public Prosecutor.
2. The petitioners are the accused in C.C.No.442 of 2009 on the file of the Judicial First Class Magistrate's Court-I, Pernambra alleging offences punishable under Sections 55 and 58 of the Abkari Act. The allegation on the complainant is that Koyilandy Taluk Chethu Thozhilali Sahakarana Sangham conducted a toddy shop in Building No.V/393A in Kanthalad Village during 2007-08 without licence and also unauthorisedly and therefore the first accused, being the Secretary of the said Society, and the second accused, being the Salesman and the third accused, being the owner of the house are liable to be punished for offences under the Abkari Act.
3. It is argued by the learned counsel for the petitioner relying on the judgment of this Court reported in Subash v.
State of Kerala [2008(2) KLT 1047] that no prosecution will lie under the Abkari Act in the absence of any complaint by an authorised officer under the Kerala Abkari Act. The relevant portion of the judgment is as follows :
"6. Hence while dealing with abkari offence, the special provisions made in the Abkari Act should be strictly followed.Crl.M.C.No. 2441 of 2010 2
Learned Government Pleader cited decision of a Division Bench of this Court in Hassan v. State of Kerala, 1989 (2) KLT 58 wherein it was held that investigation by Assistant Sub Inspector of Police will not vitiate the trial. It was also stated that there was a notification by the Government empowering the Assistant Sub Inspector to exercise all powers of the Sub Inspector. The above notification is published in 1973 as G.O. MS 217/73. Coupled with S.13(2) of the Interpretation and General Clauses Act, the Assistant Sub Inspector in this case be specifically authorized to do the act of Sub Inspector. But there is no such notification issued under the Abkari Act. None of the provisions in the Abkari Act gives power to any authority to issue such notification. Even Cr.P.C. does not contain any such provision conferring on the Government power to issue notification conferring power of an officer to any other inferior officer under S.36, when only a Superior Officer is to exercise power of the officer in charge of a police station. The Allahabad High Court in Ram Pargas v. Emperor, AIR 1948 All. 129, while interpreting S.19 of the General Clauses Act held as follows:-
"The subordinate entering into the real functions of his superior by authority of law is one thing, but the subordinate using the powers vested in the superior without a legal sanction or delegated of authority by the superior is quite another. The section protects the former but not the latter incident.
S.7 of the Extradition Act conferred the power of issuing a warrant for extradition proceedings on the political agent, but when a warrant for extradition was issued not by the political agent but by another officer subordinate to the political agent, and there was no provision in the Act for delegation of powers by the political agent to any other functionary working under him, it was held by the High Court of Allahabad that the warrant thus issued by an officer other than the political agent was illegal."
Further when it specifically states that Abkari Officer must be a police officer above the rank of Sub Inspector and that a police officer below the rank of Sub Inspector of Police cannot be termed as the Abkari Officer. Apart from the above, the learned Public Prosecutor was not able to produce the notification mentioned in Hassan's case. Further, we also note that in Hassan's case a Divisions Bench of this Court was considering the question regarding Edible Oil Seeds, Edible Oils, Vanaspati and Baby Food Dealers Licensing Order, 1975. There, Sub Inspector was authorized to conduct search and investigation. But there was no provision like filing of a report before the Court by an officer below the rank of S.I. of Police. Irregularity in investigation is considered under S.527 as held by the Apex Court in H.N. Rishbud and Inder Singh v. State of Delhi, AIR 1955 SC 196. Irregularity in investigation is different from lack of power to initiate prosecution. S.50 of the Abkari Act says that as soon as the investigation into the offences under this Act is completed, Crl.M.C.No. 2441 of 2010 3 the Abkari Officer shall forward to the Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-s.(2) of S.173 of Code of Criminal Procedure, 1973. The Assistant Sub Inspector in this case was not even holding charge of Sub Inspector or officiating as Sub Inspector at the time of filing the report. Therefore S.13(2) of the Interpretation and General Clauses Act, 1125 also will not enable the Asst. Sub Inspector of Police as an officer of the rank of Sub Inspector of Police, not below the rank of Sub Inspector of Police mentioned in the Statute. It was also contended by learned counsel for the appellant that power to conduct investigation and power to prosecute are different powers as held in Raj Kumar Karwal v. Union of India and Others ((1990) 2 SCC 409). Mere illegality or irregularity of investigation will not vitiate the trial. It is a well settled principle that a defect or illegality in investigation however serious has no direct bearing on the competence or procedure relating to cognizance or trial. But that is different from taking cognizance of the offence on the basis of a report by an officer not authorized under law. The Magistrate has no power to take out cognizance of the case on the report of an officer other than an Abkari Officer and it will go to the root of the matter. In this connection we refer to paragraph 22 page 300 in A.R. Antulay's case (Supra). In this connection, we also refer to the decision of the Apex Court in H.N. Rishbud and Inder Singh v. State of Delhi (supra). Learned counsel also referred to the decision in Varkey v. State of Kerala (1993 (1) KLT 72). In that case, since the Excise Inspector who filed the complaint having no authority to file such complaint, a Division Bench of this Court held that the trial was vitiated. A Full Bench of this Court in State of Kerala v. V.P. Enadeen (1971 KLT 19 = AIR 1971 Ker. 193) held that a Magistrate has no jurisdiction to take cognizance of an offence upon a complaint filed by a person not authorized to institute prosecution under S.28(1) of Prevention of Food Adulteration Act and the Magistrate cannot either acquit or convict the accused as he cannot take cognizance of the offence on the report filed by a person not authorized to institute prosecution. In para.3 of the above decision it is held as follows:
"3. We might at the outset observe that, although the learned Magistrate called it an acquittal, what he actually did was to discharge the accused from the case and not acquit him. If, as he thought, the complainant was not a person authorized to institute a prosecution under S.20(1) of the Act, the Magistrate had no jurisdiction to take cognizance of the case. He could no more acquit than he could convict. But, however, that might be, since the learned Magistrate purported to acquit the accused, we should think that S.417 of the Criminal Procedure Code is attracted. The question is, however, only academic since even if S.417 is not attracted because there is no acquittal. S.439 would, and, ex hypothesi, the bar in sub-s.(4) thereof against the conversion of a finding of acquittal into one of conviction would not apply."Crl.M.C.No. 2441 of 2010 4
7. In Vikraman v. State of Kerala (2007 (1) KLT 1010) it was held that the mere fact that 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 S.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 on 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 precedent for taking cognizance of an offence, trial on a report by Assistant Sub Inspector of Police is void. In this connection we refer to the following decisions:- Harikrishna v. State of Haryana (1974 Crl. L.J. 112), M/s. Lachman Singh and brothers and Another v. The Labour and Enforcement Officer (Central) and Another (1986 (3) Crime 17 A.P.). Lack of total jurisdiction for taking cognizance of an offence other than specially empowered officer is not an irregularity covered under Chapter XXXV of Cr.P.C. According to the counsel for the appellant, it is an irregularity also vitiating the proceedings in view of S.461(k) of Cr.P.C. Here there is a total illegality in taking cognizance as the report filed by an officer who is not empowered to do so. Even when the minimum fine to be imposed for theoffence charged is Rs.1,00,000/- and punishment is a very hardship, we cannot understand why Sub Inspector or investigating officer specifically authorized as Abkari Officer was not able to file report. Hence, we are of the view that since the report was filed not by an Abkari officer, the cognizance of offence taken by the Magistrate was illegal and the Magistrate ought to have discharged the accused. Hence, the entire proceedings from taking cognizance trial and sentence etc. are illegal."
In view of the authoritative pronouncement I hold that this complaint as laid is not maintainable and accordingly the same is quashed.
This Crl.M.C. is allowed.
Sd/-
B.P.RAY, JUDGE AV