STATE OF KERALA Vs. THOMMA KOCHUTHOMMA

JUDGEMENT

(1.) This is an appeal by the State against the order of acquittal by the 1st Class Magistrate, Chalakudy in a case under the Travancore-Cochin Forest Act. The case was posted for trial on 8-5-1958 on which date the Range Officer who charged the case was absent. The learned Magistrate acquitted the accused under S.247 of the Code of Criminal Procedure.

(2.) Shri Moothedan, learned counsel for the respondents raised a preliminary objection that the appeal was incompetent as the Travancore-Cochin Forest Act did not provide for an appeal either from a conviction or acquittal of an offence under the said Act. This objection is unsustainable. The case was to be tried by the Magistrate under the Code of Criminal Procedure and it is the code which regulates the procedure and provides for appeal, revision etc. 1 here are several enactments which make certain acts offences and prescribe penalties for the same. Once that is done and the prosecution is launched, the subsequent procedure is governed not by these enactments but the Code of Criminal Procedure. Reliance was placed by Shri Moothedan on a decision of the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, Bengal v. Luchmi Narayan Sarman and another (AIR 1933 Calcutta 776). That was a case of a prosecution under Bengal Act XII of 1932 and the offence was triable by a special Magistrate. It appears from the judgment that Act XII of 1932 was supplemented by another Act XXIV of 1932, S.5 of which precluded an appeal from the decision of the Special Magistrate. This decision has no application to this case. The preliminary objection is therefore overruled.

(3.) Coming to the merits, it is necessary to refer to what transpired before the acquittal of the accused The charge report was filed on 24-2-1958. It was not immediately taken on the file but on 7-4-1958 the Magistrate ordered summons to the accused to appear on 24-4-1958. The complainant did not appear that day but the accused appeared and were released on bail. The case was then posted to 8-5-1958 for prosecution evidence. The accused were present on that day also but the complainant was again absent and thereupon the Magistrate acquitted the accused. The learned Public Prosecutor who appeared on behalf of the State contended that as the complaint was not taken on the file as soon as it was presented, the complainant was not aware of the later postings. It is seen that on 24-4-1958, the date posted for appearance of the accused, the complainant wrote a letter to the Magistrate asking him to inform him of the date of posting. No reply was sent to this and the Magistrate was not bound to send a reply either. We wish to point out our strong disapproval of the action of the complainant in writing to the Magistrate for information regarding the case. The learned Public Prosecutor stated that the Range Officers may not be aware of the impropriety of such a step. We do not consider this a valid excuse. If instead of adopting the extraordinary course of writing to the Magistrate for information, the Range Officer had made enquiries in court, he could have found out the date of hearing of the case. In these circumstances we consider that the responsibility for what has transpired must be placed on the Range Officer who was in charge of the case.