STATE OF KERALA Vs. RAVINDRANATHAN

JUDGEMENT

(1.) The acquittal of the accused in this case of offences under S.8(1)(a), (b) and (g) of the Travancore-Cochin Prohibition Act, 1950 is altogether unsupportable. The acquittal purports to be under S.259 of the Criminal Procedure Code, but not even the counsel for the accused finds himself in a position to say that that section can conceivably apply. In fact no single condition required by the section obtains, and all that I can say is that, in directing the acquittal under that section, the learned Magistrate must have been completely oblivious of the contents thereof. The offence was not compoundable; it was a cognizable offence ; a charge had been framed ; and the person who was absent was not the complainant -- the complainant it would appear from the very order of the learned Magistrate was the State represented by the Excise Inspector, Trivandrum -- but the person in charge of the prosecution. To crown all, the order passed is one of acquittal while the section permits only an order of discharge.

(2.) The only argument that the counsel for the accused has been able to muster is that the learned Magistrate probably intended to acquit the accused under S.258 of the Code, but mentioned S.259 by mistake. This argument will not bear a moment's examination, for, what happened was that on the day fixed for the further cross examination of the prosecution witnesses under S.256(1) of the Code, the witnesses were present, but the prosecutor was absent on the score that he had other work which he considered more important, an attitude which is scarcely commendable and of which I trust due notice will be taken by his official superiors. The learned Magistrate forthwith proceeded to acquit the accused without the witnesses being further cross examined and without calling upon the accused to enter upon his defence and produce his evidence. The stage for an acquittal under S.258(1) had not been reached. Nor does the order of acquittal indicate that the learned Magistrate considered the evidence against the accused and found him not guilty, in which ease alone can there be an acquittal under that section. The learned Magistrate could justifiably have taken exception to the absence of the prosecutor, but the way in which he seems to have thought fit to proclaim his displeasure was both unfortunate and misconceived.

(3.) I allow the appeal, set aside the acquittal of the accused, and direct his re-trial by the District Magistrate, Trivandrum, or such other Magistrate of competent jurisdiction as the District Magistrate might direct.