IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 CRL.A.No. 1088 of 2003() ------------------------------------- SC.361/2001 of THE ADDL. DISTRICT & SESSIONS COURT(FAST TRACK COURT-I) MANJERI. .................... APPELLANT(S): ACCUSED NOS 1 AND 2 ------------------------ 1. JOSE S/O. MATHAI, THRIKKANBDIYUR, TIRUR, (THEKKAYIL VEEDU, ARAKKUZHI AND DESOM, MUVATTUPUZHA) 2. PRABHAKARAN S/O. KESAVAN NAIR, AKKARATHODI VEEDU, VENGANOOR AMSOM, TRIVANDRUM. BY ADVS. MR.P.VIJAYA BHANU MR.TONY MATHEW RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. --------------------------- CRL.A.NO.1088 OF 2003 ------------------------------ Dated this the 23rd day of June, 2009 JUDGMENT This is an appeal preferred against the conviction and sentence passed by the Sessions Judge, Fast Track Court No.I, Manjeri in S.C.No.361/2001. Four accused were in the party array and the 4th accused died and the present appellants are accused 1 and 2 in the case before me. They were convicted under Section 56(d) of the Abkari Act and directed to pay a fine of Rs.2,000/= and in default, to undergo imprisonment for six months. The police filed the charge sheet under Section 55(h) of the Abkari Act. 2. I am not going into the factual metrics in detail for the reason that the materials available will show that the prosecution itself is void. Admittedly, the case was detected by a competent officer called the S.I of Police, but later, the investigation as well as laying of the charge was done by the Assistant Sub Inspector of Police. Under the provisions of the Abkari Act by governmental notification, the Abkari officers shall be only the person not below the rank of a Sub Inspector 2 CRL.A.NO.1088/03 of Police. A situation arose in Vikraman v. State of Kerala (2007 (1) KLT 1010) where, the Assistant Sub Inspector conducted later part of the investigation and laid the charge. A learned Single Judge of this Court held that it will not vitiate the trial. Later, the matter was referred to a Division Bench, which resulted in Subash v. State of Kerala (2008 (2) KLT 1047). The question whether the decision rendered in Vikraman’s case was right or not was considered by the Division Bench of this Court in the said decision in Paragraph-7 of the judgment, which reads as follows: “7. In Vikraman v. State of Kerala (2007 (1) KLT 1010) it was held that the mere fact that the Assistant Sub Inspector conducted later part of investigation and laid charge will not vitiate the trial. We are of the opinion that on the plain reading of Section 50 of the Abkari Act the Magistrate has no jurisdiction to take cognizance of the case as the report was filed by a person other than an Abkari Officer. Hence, Vikraman's case cannot be acceptable as an authoritative decision that despite the mandate in S. 50 Magistrate can take cognizance of a report filed by a person other than an Abkari officer. In this connection we also refer to S.199(1) and S.461(d) of Cr.P.C. An officer other than an Abkari Officer as defined in the Act cannot file a report even if investigation is conducted by an Abkari Officer. When a report by a specifically empowered officer is a condition 3 CRL.A.NO.1088/03 precedent or taking cognizance of an offence, trial on a report by Assistant Sub Inspector of Police is void.” 3. So, by the said decision, the dictum laid down in Vikraman’s case is also overruled by the Division Bench. Going by the factual matrix of this case, it is very clear that further investigation and charge has been laid by the Assistant Sub Inspector, who is not an Abkari officer as contemplated under the provisions of the Abkari Act. Therefore, the whole thing is void and the prosecution cannot lie at all. In the Division Bench case, it was held that where it is only in the process of charge and not of trial, there was a direction to return those charges so that it can be filed by competent officer later. So far as this case is concerned, as per the dictum laid in Subash’s case, it has to be held that the prosecution is void at the inception for lack of competency and jurisdiction. Therefore, the conviction and sentence passed by the trial court is liable to be set aside and I do so. 4. In the result, the criminal appeal is allowed. The conviction and sentence passed by the trial court under 4 CRL.A.NO.1088/03 Section 56(d) of the Abkari Act is set aside. The accused are found not guilty and are to be acquitted and are set at liberty forthwith. M.N. KRISHNAN, JUDGE cl 5 CRL.A.NO.1088/03 6 CRL.A.NO.1088/03