STATE OF KERALA Vs. GANGADHARAN NADAR

JUDGEMENT

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

(2.) 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-s.(2) of S.202 of the Code deals with a case of this nature. Chap.15 of the Code deals with complaints to Magistrates. Under the proviso to sub-s.(2) of S.202 of the Code, the complainant is required to produce all his witnesses and the Magistrate is required to examine them on oath. Chap.14 which begins with S.190 deals with "Conditions Requisite for Initiation of Proceedings." In cases exclusively triable by the Court of Sessions, procedure laid down in proviso to S.202(2) of the Code requires strict compliance.

(3.) 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 S.50 and 50A of the Abkari Act was concerned, as they stand at present. Obviously, the commitment could not have been done without following the procedure as stipulated in sub-s.(2) of S.202 of the Code. That being a mandatory requirement, the Court of Sessions shall return the matter to the Committal Court for taking action as provided in law.