SAHADEVAN Vs. EXCISE INSPECTOR

JUDGEMENT

(1.) Heard counsel for the petitioner and Public Prosecutor.

(2.) Petitioner is the accused person in C. C. No. 358 of 1996 on the file of the Judicial First Class Magistrate, Kunnamangalam. In the case charges have been framed under the Kerala Abkari Act before its amendment. The plea has been recorded on 15-1-1997. Some witnesses had also been examined. Petitioner prayed for applying the principles laid down by the Supreme Court in Raj Deo Sharma v. State of Bihar ( AIR 1998 SC 3281 ). The learned Magistrate has considered and rejected the prayer and directed that the case will be proceeded with. In doing so, the learned Magistrate has observed that the decision in Raj Deo Sharma's case is in addition to and without prejudice to the directions in Common Cause v. Union of India ( 1996 (6) SCC 775 ). As per that decision some categories of accused persons are entitled to discharge or acquittal. In Raj Deo Sharma's case there is no direction for discharge or acquittal, but the direction is only to proceed to the next stage. The decision in Common Cause's makes it clear that certain categories of cases do not come within the ambit of that decision. But there is no such restriction in the directions contained in Raj Deo Sharma's case, where the only direction is to proceed 10 the next stage. Only punishment prescribed is the criteria. In the case of offences punishable with imprisonment for seven years or more, discretion is given to the Trial Court to consider whether there are exceptional reasons and whether interest of justice require further time to be granted to the prosecution for adducing evidence, there is no such direction regarding offences punishable with imprisonment for a period less than seven years. Only question to be considered is whether the trial has been protracted by accused persons. If the inability to continue prosecution is attributable to the conduct of the accused in protracting the trial, the court is not obliged to close the prosecution. So the learned magistrate should have looked into that aspect only. It is to be noted that cases under Prevention of Corruption Act did not come within the ambit of the decision in Common Cause Case. But the directions in Raj Deo Sharma's case is given in a case under the Prevention of Corruption Act. In the circumstances the order passed by the learned Magistrate on 28-1-1999 has to be set aside. Learned Magistrate will examine the question once again and examine whether the prosecution could not complete the evidence due to the conduct of the accused, otherwise close the evidence and proceed to the next stage.