Suo Motu vs State Of Kerala
2022 Latest Caselaw 5219 Ker

            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.
                  -----------------------
                    Crl.Revision Case No. 4 of 2019
                  -----------------------
                  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

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

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

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

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