K.L.POLY Vs. STATE OF KERALA

JUDGEMENT

(1.) The challenge in this revision petition is the order of discharge passed by the learned Magistrate in a case in which cognizance was taken against the accused/respondents 2 and 3 for offence allegedly committed by them under section 63 of Abkari Act. The complaint was, in fact, filed against the accused/respondents 2 and 3 alleging commission of offences under sections 55, 56 and 58 of Abkari Act, but cognizance was taken by the Magistrate only under section 63 of Abkari Act. It is stated that Excise Inspector, Preventive Officer and Asst. Excise Commissioner were examined and it was thereafter the cognizance was taken against the accused for offence under section 63 of Abkari Act. It is a case where cognizance was taken based on a private complaint filed by the petitioner herein. Since cognizance was bad in law the learned Magistrate (the successor Magistrate) dropped the proceedings and released the accused.

(2.) The complainant, who is the revision petitioner, contends that the order passed by the learned Magistrate is unsustainable. The accused could have been either acquitted or convicted, but the learned Magistrate was not justified in stopping the proceedings and releasing the accused. The view taken by the learned Magistrate that cognizance cannot be taken otherwise than on the report of the Abkari Officer is incorrect, it is contended. According to the petitioner, Section 39 of the Abkari Act empowers a private person also to approach the Magistrate complaining of commission of Abkari offences and as such the view taken by the learned Magistrate, that cognizance cannot be taken based on a private complaint, is illegal and unsustainable.

(3.) Section 3(2) of Abkari Act defines 'Abkari Officer' thus: