IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 Crl.MC.No. 4824 of 2003(C) ------------------------------------ AGAINST THE ORDER DATED 24/09/2003 IN CMP.1027/2003 IN ST.218/1998 of JUDL. MAGISTRATE OF FIRST CLASS, PEERUMEDU .................... PETITIONER(S): ACCUSED 1-5, 8-14 & 16-18. --------------------------------------------------------------- 1. K.V.ABRAHAM (EMPLOYER, DOWNTON ESTATE), KARIMPANAL, KANJIRAPPALLY. 2. K.V.GEORGE, (EMPLOYER, DOWNTON ESTATE), KARIMPANAL, KANJIRAPPALLY. 3. K.V.SEBASTIAN, (EMPLOYER, DOWNTON ESTATE), KARIMPANAL, KANJIRAPPALLY. 4. K.V.KURIAN, (EMPLOYER, DOWNTON ESTATE), KARIMPANAL, KANJIRAPPALLY. 5. K.I.VARKEY, (EMPLOYER, DOWNTON ESTATE), KARIMPANAL, KANJIRAPPALLY. 6. K.J.VARKEY, (EMPLOYER, DOWNTON ESTATE), KARIMPANAL, KANJIRAPPALLY. 7. VARKEY GEORGE, (EMPLOYER, DOWNTON ESTATE), KARIMPANAL , KANJIRAPPALLY. 8. GEROGE SEBASTIAN, (EMPLOYER , DOWNTON ESTATE), KARIMPANAL, KANJIRAPPALLY. 9. K.V.NICHOLAS, (EMPLOYER, DOWNTON ESTATE), KARIMPANAL KANJIRAPPALLY. 10. GEORGE KURIAN, (EMPLOYER, DOWNTON ESTATE), KARIMPANAL, KANJIRAPPALLY. 11. MARY JOSE, (EMPLOYER, DOWNTON ESTATE), KARIMPANAL, KANJIRAPPALLY. 2/- tss /2/ CRMC. NO.4824/2003 12. GRACE ABRAHAM, (EMPLOYER, DOWNTON ESTATE), KARIMPANAL , KANJIRAPPALLY. 13. RANJU KURIAN, (EMPLOYER, DOWNTON ESTATE), KARIMPANAL , KANJIRAPPALLY. 14. REENA JOSEPH, (EMPLOYER, DOWNTON ESTATE), KARIMPANAL , KANJIRAPPALLY. 15. BEENA DOMINIC, (EMPLOYER, DOWNTON ESTATE, KARIMPANAL, KANJIRAPPALLY. BY ADV. SRI.P.R.VENKETESH SRI.ABRAHAM GEORGE JACOB RESPONDENT(S): CR.PETITIONER/COMPLAINANT ----------------------------------------------------------------------- 1. STATE REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE INSPECTOR OF PLANTATIONS, PEERMADE. PUBLIC PROSECUTOR SMT.K.L.LAKSHMI RANI THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/08/2010, THE COURT ON 07/09/2010 PASSED THE FOLLOWING: tss K.T.SANKARAN, J. ------------------------------ Crl.M.C.No.4824 OF 2003 ------------------------------ Dated this the 7th day of September, 2010 ORDER The petitioners are accused nos.1 to 5, 8 to 14 and 16 to 18 in S.T.No.218/1998 on the file of the court of Judicial Magistrate of First Class, Peermedu. This Criminal Miscellaneous Case is filed by the them challenging Annexure-III order dated 24th September, 2003 passed by the learned Magistrate, by which it was held that the proceedings before the court below are not liable to be stopped. 2. The S.T.case was taken cognizance on a complaint preferred by the Inspector of Plantations, Peermade for offence punishable under Section 36 of the Plantation Labour Act, 1951. The allegation against the accused is that the accused failed to submit application before the appropriate authority for registration of the plantation owned by them. It was alleged that non registration of Crl.M.C.No.4824 OF 2003 2 the plantation is violation of Section 3B of the Plantation Labour Act read with Rule 2A of the Plantation Labour Rules and it is punishable under Section 36 of the Plantation Labour Act. The petitioners challenged the maintainability of the complaint. They filed Criminal Miscellaneous Petition No.1027/2003 before the court below praying to drop the proceedings against them as the proceedings are not maintainable. They also raised a contention that the complaint is barred by limitation, as the complaint was not filed within time provided under Section 40 of the Plantation Labour Act. 3. The Court below held that the offence is a continuing offence and therefore, the complaint is not barred by limitation. It was also held that the complaint is maintainable. The contention taken by the petitioners that the land in question should not be treated as a plantation in the light of the several documents produced by them was dealt with by the court below and it was held that it is Crl.M.C.No.4824 OF 2003 3 a matter to be decided during trial and that it is not a question of law but a question of fact. The court below held that on every inspection by the authority, the non registration of the plantation would be taken note of and that it would constitute separate and distinct offence and the period of limitation would be computed with reference to such inspection. 4. Learned counsel for the petitioners relying on 1956-II L.L.J (Bombay) 153 contended that distinction is to be drawn with reference to non registration and with reference to running the plantation without a registration. In the case of the former, the limitation would be computed not with reference to the date of inspection, but with reference to the fact of non registration. The learned counsel for the petitioner also relied on the order in Crl.M.C.477 of 1991. 5. After having heard the learned counsel for the petitioners and learned Public Prosecutor, I am Crl.M.C.No.4824 OF 2003 4 of the view that as held by the lower court the question whether the plantation was liable to be registered at all is a question of fact to be decided during trial. The question whether the complaint is barred by limitation and whether the cause of action alleged by the complainant is a continuing cause of action would arise only after a decision is rendered on the question whether the plantation was required to be registered. Therefore, it is not necessary to decide the question of maintainability of the complaint at this stage. All the contentions raised by either side can be effectively and conveniently considered at the time of trial. Therefore, I am of the view that all the contentions of the parties should be left open to be decided at the time of trial, notwithstanding the findings rendered by the court below in the order dated 24th September, 2003. In other words, as it is held that decision on the question of maintainability of the complaint need not be decided at this stage, all the findings rendered in the order dated 24th September,2003 Crl.M.C.No.4824 OF 2003 5 would be of no effect. 6. The trial court shall dispose of the case in accordance with law. The learned counsel for the petitioners submitted that many of the petitioners are working outside the State and one of them is working abroad. It is submitted that if the accused are compelled to appear before the court below on every posting date of the case, it would cause much inconvenience to them. Insisting on the presence of the accused on all posting dates would also cause delay in the trial and disposal of the case. In the facts and circumstances, the court below shall grant exemption to the petitioners from personal appearance except on such occasions on which the court below considers their personal presence essential. The Crl.M.C. is disposed of as above. K.T.SANKARAN, JUDGE. cms