JOY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE simple question is whether the prosecution proceedings now initiated against the petitioner are liable to be quashed as bit by section 300 of the Code of Criminal Procedure ("Code" for short). Petitioner was earlier prosecuted for the offence under Section 20 (b) (i) of the Narcotic Drags and Psychotropic Substances Act (for short the 'Act'), But he was discharged by the Sessions Court as per order dated 19 -1 -1993 holding that prosecution proceedings were not maintainable as they were initiated on a report filed by the Excise circle Inspector who was not authorised by the Government in that behalf. The said legal position remains unassailable now with the decision of this Court in Prabhakaran vs Excise Circle Inspector (1992 (2) KLT 860). Much later, fresh prosecution proceedings were initiated against him on the report of Excise Circle Inspector (Special Squad) who, in the meantime, became authorised by the State Government in this behalf. Sessions Judge who took cognizance of the offence issued process to the petitioner to appear in court. Petitioner Is now invoking the inherent jurisdiction of this Court for quashing the said fresh prosecution proceedings. The first prosecution was on a report directly filed before the Sessions Court. It is admitted that the Circle Inspector who laid the report was not authorised by the Government to do so. if that be so, the Sessions court has no jurisdiction to take cognizance of any offence under the Act on such a report. So the Sessions Court has rightly discharged the accused from the first prosecution. It is trite law that the bar contained in Section 300 Of the Code is not applicable when the first prosecution ended in a discharge. Moreover as the court was not competent to take cognizance of the offence under the Act on the report of such unauthorised officer there was no valid prosecution and hence Section 300 has even otherwise no application..

(2.) HOWEVER Learned Counsel for the petitioner contends, that the order passed by the Sessions Court on the first prosecution was really an order of acquittal though it was termed as a discharge. To bolster up the contention, counsel relied on a passage quoted by a Division Bench of this Court from Cooley's "Constitutional Proceedings" in Raghavan Nair vs. Joint Registrar 1993 (1) KLT 725 and contended that the action made by the Circle Inspector at the first instance as a public officer was a public action and therefore the complaint filed, by him had all the trappings of legal authority. The context In which the Division Bench quoted the passage from Cooley's book was a writ petition filed in challenge of an election of a certain person to a co -operative society. That has nothing to do with either taking cognizance of an offence or legality of prosecution proceedings in criminal law. As the passage profitably used by the Division Bench in a different context altogether I am not extracting the passage here lest it would appear in the context to be a square peg in a round hole. Section 193 of the code imposes a ban that no court of session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a magistrate except when otherwise expressly provided. What is contained in Section 36 (A) (1) (d) of the Act is one such exception. As per that sub section an officer specially authorised in that behalf could move the Sessions Court directly with & complaint or report without first approaching a committal court and the Sessions Court has power to take cognizance on such a report But if the officer is not clothed with such authorisation he falls outside the realm envisaged in Section 36 (A) (i) (d) of the Act. He cannot in such a situation directly approach the Sessions Court with a report. The first prosecution was therefore totally incompetent and hence it cannot cast a shadow on the subsequent prosecution so far as Section 300 of the code is concerned.