IN RE STATE OF KERALA Vs. STATE

JUDGEMENT

(1.) This is a reference made on the basis of a report submitted by the Principal Assistant Sessions Court, Thrissur submitting that the case, S.C. No. 24 of 1995 made over to him for trial by the Sessions Court, Thrissur could not be tried by him effectively in view of the fact that before committing the case to the Sessions Court, the Judicial First Class Magistrate had not conducted an enquiry in terms of S.202 of the Code of Criminal Procedure. The learned Principal Assistant Sessions Judge has reported that since he has got no power to send back the records to the Magistrate concerned for conducting an enquiry in terms of S.202(2) of the Code of Criminal Procedure, the matter is being referred to this Court.

(2.) We have heard the learned Public Prosecutor. Though served with notice, the accused have not appeared.

(3.) The Assistant Sessions Judge appears to be of the view that the Judicial First Class Magistrate should have conducted an enquiry under S.202 of the Criminal Procedure Code before committing the case to the Court of Session. The proceedings before the Magistrate arose out of the filing of a report by the Excise Inspector, Cherpu Range, an Abkari Officer, within the meaning of the Abkari Act, against the accused before the Judicial Ist Class Magistrate Court - I, Trichur, for the offences punishable under S.56 and 57(iii) of the Abkari Act on the primary allegation that methyl alcohol was detected in the arrack kept for sale in the arrack shop run by the accused. Since the offence was exclusively triable by the Court of Session, the Magistrate committed the case to the Court of Session in terms of S.50A of the Abkari Act. The case was made over by the Sessions Judge to the Principal Assistant Sessions Judge. It is thereafter that the reference has been made on the basis of the view of the Assistant Sessions Judge that an enquiry under S.202 of the Code of Criminal Procedure was mandatory before committing the case to the Court of Session.