STATE OF KERALA Vs. PAPPUKUTTAN

JUDGEMENT

(1.) Whether the omission to conduct a de novo trial by the Sub Divisional Magistrate to whom the case was transferred, presumably under S.192(1) Cr. P. C., by the District Magistrate who had recorded evidence of the prosecution witnesses, would, on the facts and in the circumstances of the case, amount to an illegality that vitiated the trial so as to render it not possible for the appellate court to uphold the conviction of the accused by the trial (transferee) court, even if it was found sustainable on the evidence, is the question that has been, posed for consideration in this criminal appeal by the State against acquittal-While Sri K. R. Kurup, the learned State Prosecutor, would submit that the answer to the question lies in the provisions contained in S.350 Cr. P. C., Sri. V Narayana Menon, the learned counsel for the respondents, (accused) would, on the other hand, maintain that the aforesaid section has no application to the facts of the case.

(2.) The facts relevant, briefly stated, are as follows: The complaint against the accused was filed before the District Magistrate, Trichur, who after recording the evidence of Pws. 1 to 4 transferred the case to the Sub Divisional Magistrate, Kunnamkulam. The Sub Divisional Magistrate without recalling or examining any prosecution witnesses (obviously for the reason that the prosecution had no other evidence to be let in) questioned the accused under S.342 Cr. P. C., recorded the evidence of the defence witness, and disposed of the case. The case ended in the Sub Divisional Magistrate's Court in the conviction and sentence of the accused for an offence under S.55(b) of the Abkari Act. On appeal, the learned Sessions Judge, Trichur, decided that the conviction and sentence passed by the learned Sub Divisional Magistrate could not be upheld and, therefore, acquitted the accused. It is against this acquittal that the State has come up in appeal.

(3.) Before considering the merit of the case as put forward by the respective parties, it would be advantageous to consider some of the relevant provisions in the Code of Criminal Procedure which have bearing to the question of law involved in this appeal.