Kerala High Court
Vijayan vs Excise Commissioner on 3 September, 2002
Equivalent citations: 2003 A I H C 500, (2002) 2 KER LJ 530, (2002) 3 KER LT 646, (2003) 2 KHCACJ 385 (KER)
Author: K.A. Abdul Gafoor
Bench: K.A. Abdul Gafoor
JUDGMENT K.A. Abdul Gafoor, J.
1. Licence to run a toddy shop has been granted to the fifth respondent in a sale conducted on 20.4.2002. According to the petitioner he was riot entitled to get the licence in terms of Rule 5(3)(i) of the Kerala Abkari Shops Disposal Rules, 2002 as a first information report was registered against him based on a police complaint, on 14.4.2002. The petitioner complained about the grant of licence in favour of the fifth respondent before the District Collector, Kottayam alleging violation of the said Rule. The District Collector rejected that complaint after dealing with it in detail as per Ext. P5 order, finding that the case against the fifth respondent was only at investigation stage and it had not been substantiated that the fifth respondent has been "either charged with an offence or proceedings is pending against him before a court of law". It is in the above circumstances Ext. P5 is impugned in this Original Petition. The petitioner submits that the view taken by the District Collector in Ext. P5 is contrary to the statutory provisions contained in Rule 5(3)(i) of the said Rules and the pronouncement of this Court in Albert v. State of Kerala (1965 KLT 865 (FB)). It is further contended before me that the word 'charge' used in the said Rule cannot be ascribed the meaning that the said term has in the relevant provisions in, Criminal Procedure Code. It is submitted relying on Section 211 of the Code of Criminal Procedure and the said Full Bench decision in Albert's case that the word 'charge' shall be taken as meaning only a complaint. Therefore the Collector, based on the first information report registered against the fifth respondent on 144.2001 ought to have found that a charge had been laid against the fifth respondent on an abkari offence and therefore he was ineligible in terms of the said Rule to obtain a licence for the conduct of a toddy shop.
2. The said Rule reads as follows:-
"5(3) :- No person is eligible for the privilege of any shop if:
(i) he is charged with an offence relating to illicit liquor or prosecution proceedings are pending against the said person before any court of law.....".
It is an admitted case before me by counsel for the petitioner that no proceedings could be said to be pending against the fifth respondent by merely filing a first information report in relation to an alleged offence. So what remains to be considered is whether the fifth respondent was at the relevant time "charged with an offence relating to illicit liquor". The charge shall be relating to an offence even going by the said Rule. Offence means criminal offence. Necessarily the meaning that shall be ascribed to the word 'charge' relating to an offence shall have the same meaning as contained in Criminal Procedure Code on the basis of which trial on the said charge shall be conducted. So the contention of the petitioner that the word 'charge' shall have a meaning different to that contained in Criminal Procedure Code cannot be accepted.
3. Of course the decision of the Full Bench in Albert's case while referring to the word 'charge' appearing in Section 211 of the Indian Penal Code had interpreted that the circumstances relating to an offence it can be even a complaint or a first information report. It has relevance to the ingredients of the offence under Section 211 which appears in Chapter No. 11 of the Indian Penal Code relating to offence relating to giving false evidence and evidence against public justice. It is in that circumstance the Full Bench interpreted the word 'charge' as having the meaning of first information.
4. On the other hand the word used in Rule 5(3)(i) is in relation to a person charged with an offence touching illicit liquor. Therefore there shall be a charge on the offence relating to illicit liquor. In that regard, necessarily, we have to consider what is meant by a charge in terms of the Criminal Procedure Code.
5. The charge is in detail dealt with in Chapter XXVII of the Criminal Procedure Code, 1973. As per Section 211 charges have to be framed by the Court. Therefore a person can be said to be charged with an offence when, on the basis of a final report and the relevant details collected during investigation and perusing the final report filed by the investigating officer before the court, the court has to on the basis of the materials on record frame a charge. Then alone a person can be said to be charged with an offence. Admittedly, as on 20.4.2002, no charge has been laid against the fifth respondent. Therefore, the vice of Rule 5(3)(i) does not attract to the case. The view of the Collector in Ext. P5 cannot be said, to be unjustified.
6. In this respect, it is profitable to refer to the decision of this Court in Paulson v. State of Kerala (1998 (1) KLT 117). It is in relation to pendency of judicial proceedings in respect of retired employee to deny the retiral benefits. The Explanation under Rule 3 Part III of the Kerala Service Rules speaks about the institution of criminal proceedings and it is provided in the relevant rule that a criminal proceedings can be stated to be instituted "on the date on which the complaint or report of police officer on which the Magistrate takes cognizance is made. This Court in the said judgment referred to another decision in Parameswaran v. State of Kerala, 1989 (1) KLT 35, wherein it had been held as follows:-
"9. When faced with such a hurdle the counsel said that crucial date to be considered with" reference to cognizance is the date on which the first information report was placed before court and not the date on which the final report under Section 173(2) was laid. I fear that the counsel is labouring under a misapprehension. At the stage of F.I.R. the Police Officers acts only on information. What he is then doing is only to start investigation. The report is sent to court only as enjoined by Section 157 Cr.P.C. It is only an information to court. At that stage, no decision is taken regarding the offence and the accused is not placed for trial. Investigation is the province of the police and court cannot interfere. It is the right and duty of the police officer to collect materials during investigation and decide whether an offence is disclosed and the accused has to be placed for trial before court or whether a refer report has to be filed. The question of taking cognizance arises only when the final report under Section 173(2) is laid. That is the police report mentioned in Section 190(1)(b) of the Code on the basis of which the court can take cognizance of an offence and it is clear from Section 2(c) also. At that stage alone the accused is placed before Court for trial and the question of taking cognizance of the offence will arise.......".
Relying on this proposition this Court held that a judicial proceeding can commence only when a Magistrate takes cognizance of the offence either on a complaint or a report of the police officer. The Court further held that "since the first information report is not a complaint there is no question of Magistrate taking cognizance of the offence without receiving the first information report (F.I.R.)". The first information report cannot be a charge relating to an offence. Therefore the view of the District Collector is perfectly justified.
The Original Petition fails. Dismissed.