STATE OF KERALA Vs. E BHASKARAN KUNHIKELU

JUDGEMENT

(1.) THIS is an appeal from a judgment of acquittal. The allegation in the complaint filed by P. W. 1, the Wireless licensing Inspector, Tellicherry, before the Sub-Magistrate. Tellicherry-I was that the respondent had committed offences punishable under Section 4 read with Section 20 of the Indian Telegraph Act, XIII of 1885 and Section 3 read with Section 6 of the Indian Wireless Telegraphy Act, xvii of 1933. The Sub Magistrate convicted the respondent on both the counts. For the offence under the Telegraph Act he sentenced the respondent to pay a fine of Rs. 100/- and in default to undergo simple imprisonment for one month. No separate sentence was awarded for the offence under the Wireless Telegraphy Act. In the appeal filed by the respondent before the District Magistrate, Tellicherry, his convictions and sentence were set aside. This appeal is from that judgment.

(2.) SECTION 20 of the Telegraph Act and Section 6 of the Wireless Telegraphy Act prescribe respectively the penalties for contravening the provisions of Section 4 of the Telegraph Act and Section 3 of the Wireless Telegraphy Act. The punishment prescribed in Section 20 of the Telegraph Act is imprisonment which may extend to three years or fine or both and in Section 6 of the Wireless Telegraphy Act in the case of first offence fine which may extend to Rs. 100/- and in the case of a second or subsequent offence fine which may extend to Rs. 250/ -. While the offence under the Telegraph Act is therefore a warrant case that under the wireless Telegraphy Act is a summons case. The procedure adopted by the magistrate in the trial of the present case was that in a summons case. Where one of the offences is a warrant case and the other a summons case the trial to be conducted is that in a warrant case. Although the acquittal of the respondent by the District Magistrate was not on that ground the acquittal deserves to be upheld on that ground.

(3.) THE Public Prosecutor submitted that the adoption of the procedure prescribed for summons trial in the present case was merely an irregularity that it had not in any way caused prejudice to the respondent and that therefore the convictions and sentence were not liable to be set aside on that ground and relied upon the full Bench decision of the Allahabad High Court in Prem Das v. State, AIR 1961 All 590 and the decision of a Single Judge of the Gujarat High Court in Mohanlal v. State, AIR 1962 Guj 231.