IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
FRIDAY, THE 13TH DAY OF MAY 2022 / 23RD VAISAKHA, 1944
CRL.RC NO. 4 OF 2019
AGAINST THE ORDER/JUDGMENT IN CP 90/2014 OF JUDICIAL
MAGISTRATE OF FIRST CLASS ,PERAMBRA
SC 403/2015 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT - V, KOZHIKODE
ACCUSED:
SUO MOTU PROCEEDINGS ON A COMMUNICATION RECEIVED
FROM ADDITIONAL SESSIONS JUDGE-V, KOZHIKODE.
BY SUO MOTU
COMPLAINANTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
2 SAHADEVAN,
S/O. CHANDUKUTTY, CHALIPOYIL HOUSE, KOTTOOR
AMSOM, MOOLAD DESOM, KOYILANDY TALUK, KOZHIKODE.
BY ADVS.SRI.M.PROMODH KUMAR
SMT.MAYA CHANDRAN
THIS CRIMINAL REVISION CASE HAVING COME UP FOR
ADMISSION ON 29.07.2019, THE COURT ON 13.05.2022
DELIVERED THE FOLLOWING:
Crl.R.C. No.4 of 2019 -:2:-
MARY JOSEPH, J.
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Crl.Revision Case No. 4 of 2019
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Dated this the 13th day of May, 2022
ORDER
This revision is initiated suo motu by this Court on the basis of a communication received from Additional Court of Sessions-V, Kozhikode. It is stated in the communication that a final report has been filed before the Judicial First Class Magistrate Court, Perambra on concluding the investigation in Crime No.7/2010 alleging commission of an offence under Section 58A of the Kerala Abkari Act, 1077 (for short 'the Act') against the accused one Mr.Sahadevan.
2. The case of the prosecution was that on 09.03.2010, about 1128.50 litres of Ayurvedic preparation called "Arishtam" was seized from the above person and it was alleged that he has committed an offence punishable under Section 58A of the Act. On Final Report being filed, committal proceedings was initiated as CP No.90/2014. The accused was granted bail. After furnishing copies of the prosecution records to the petitioner Crl.R.C. No.4 of 2019 -:3:- under Section 207 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C'), the case was committed to Court of Sessions, Kozhikode by order passed by Magistrate on 12.02.2015. It was stated in the order that the offence alleged against the accused is exclusively triable by Court of Sessions and therefore the case was committed.
3. The offence alleged under Section 58A of the Act is punishable with imprisonment upto 5 years or with fine which may extend to Rs.50,000/- or with both. Therefore, going by Part II of First Schedule to Cr.P.C, the offence alleged under any other law is punishable with imprisonment for 3 years and upwards but not more than 7 years is triable by a Magistrate of First Class. On finding that the Magistrate has committed an error by committing the case to Court of Sessions instead of taking it on its file as Calendar Case, the matter was placed for consideration and taking necessary action in this regard. Accordingly revision was taken suo moto.
4. Sub-section (b) of Section 26 Cr.P.C is relevant in this context and is extracted hereunder :
"(b) any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by Crl.R.C. No.4 of 2019 -:4:- such court and when no court is so mentioned, may be tried by-
(i) the High Court or
(ii) any other Court by which such offence is shown in the First Schedule to be triable."
Section 58A of the Act is also apposite extraction hereunder :
"58A. For sale of certain preparations:- Whoever sells any preparation which he knows or has reason to believe is intended to serve as a substitute for alcohol or intoxicating drug shall on conviction before a competent court be punished with imprisonment which may extend to five years, or with fine which may extend to fifty thousand rupees, or with both.
Provided that nothing contained in this section shall apply to the sale of any medicinal preparation for bona fide treatment, mitigation or prevention of disease in human beings or animals."
5. An offence under Section 58A of the Act is punishable with imprisonment up to 5 years or with fine which may extend to Rs.50,000/- or both. As per Section 26(b) Cr.P.C, when a court where an offence is triable is not mentioned, it may be tried by the High Court or any other Court by which the offence is shown in the First Schedule as triable. In the Abkari Act a special court is not mentioned for trial of the offence under Section 58A and therefore as per the First Schedule, the offence being punishable with imprisonment for five years or with fine or with Crl.R.C. No.4 of 2019 -:5:- both, Judicial First Class Magistrate Court is competent to try that offence.
6. Therefore, it appears that the offence under Section 58A punishable with imprisonment upto 5 years or with fine or with both, is triable by Judicial First Class Magistrate, which had taken the final report on file. The said court is having jurisdiction to try the offence and therefore it ought not to have committed the case to Court of Sessions, Kozhikode. Committal proceedings is bad in law and therefore order passed therein on 12.02.2015 is liable to be quashed invoking inherent jurisdiction under Section 482 Cr.P.C.
7. In the result, revision is allowed. C.P. No.90/14 and order passed therein on 12.02.2015 are quashed forthwith. The case originated from the Final Report filed in Crime No.7/2010 of Perambra Police Station numbered as SC No.403/2015 and pending on the files of Additional District and Sessions Court, Kozhikode is ordered to be transmitted to Judicial First Class Magistrate Court, Perambra. On case records being received, the Judicial First Class Magistrate shall register a case on its file and proceed to try the same. The trial shall be concluded in a time bound manner, since enough time has already been consumed Crl.R.C. No.4 of 2019 -:6:- due to the wrong committal of the case to Additional Court of Sessions, Kozhikode and pendency of it there as SC No.403/2015. At any rate, the newly registered case shall be disposed of by Judicial First Class Magistrate, Perambra within four months from the date of receipt of a certified copy of this order therein. Registry shall communicate the copy of the order to Additional Court of Sessions-V, Kozhikode for transmitting the case records to Judicial First Class Magistrate Court, Perambra, for enabling it to proceed with trial and dispose it, within the time stands granted as above.
Sd/-
MARY JOSEPH, JUDGE.
ttb