S. NAGARAJAN Vs. KOLAPPURATHU KHADER & ANOTHER

JUDGEMENT

(1.) THIS appeal is by the Assistant Collector of Central Excise who was the complainant in the lower court (Court of Additional Judicial Magistrate of First Class, Trivandrum). The said case was originally against two persons for the offences under Secs. 132 and 135A of the Customs Act. But the second accused was absconding and hence the trial proceeded against the first accused alone. On 5 -12 - -1984 the lower court pronounced judgment acquitting the first accused (he will be referred to as the respondent). This appeal is in challenge of the said acquittal. This Court has, in the meanwhile, called for the records from the lower court in exercise of the revisional powers of this Court since the jurisdiction of the lower court was seriously doubted. Learned counsel for the complainant (appellant) contended that the court below had no jurisdiction to try the case from 29 -11 -1984 onwards in view of Notification dated 21 -11 -1984 (G. O. (MS) 158/84/Home issued by the Government of Kerala). As per the said notification the Government of Kerala, after consultation with the High Court, established a special court of Judicial Magistrate of the First Class with headquarters at Ernakulam with effect from 29 -11 -1984 and with jurisdiction over the whole State of Kerala to try cases relating to offences under certain Central Acts. One of the Central Acts enumerated in the notification is the Customs Act, 1962. As per proviso to Sec. 11 (I) of the Code of Criminal Procedure (for short the Code') on the establishment of such special court "no other court of Crl. A.No. 335 of 1985 Cri. R.C. No. 66 of 1985 Decided on 28 -2 -1987 magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such special court of Judicial Magistrate has been established". The contention of the learned counsel for the appellant is mainly based on the said notification.

(2.) ON 29 -11 -1984 (to which day the case was posted in the lower court on one occasion) the learned Magistrate heard arguments and posted the case for judgment. On 5 -12 -84 judgment was pronounced by the lower court. In other words, -the Additional Judicial Magistrate of First Class, Trivandrum continued with the case even after 29 -11 -1984 and pronounced the judgment. Hence it is contended that the proceedings in the lower court on and after the said date are liable to be quashed. Learned counsel for the respondent in his eagerness to protect those proceedings which ended in acquittal of the respondent, contended that hearing arguments in a case is not part of trial and hence the lower court has not acted without jurisdiction. By the proviso to Sec. 11(l) of the Code jurisdiction of ordinary magistrates courts to try such cases has been taken away. Any step other than trial can be adopted by the ordinary magistrate's court in such cases, according to the counsel.