IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 8TH JULY 2009 / 17TH ASHADHA 1931 Crl.MC.No. 1143 of 2009() ------------------------- ST.509/2009 of JUDL.MAGISTRATE OF FIRST CLASS-I, ALUVA .................... (CRIME NO.3 OF 2009 OF THRIKKAKARA POLICE STATION) ....... PETITIONER(S): ------------------------ 1. SANEESH S/O. SIVAKUMAR, AHENKKAPARAMBIL HOUSE, NGO QUARTERS, IA 550, VAZHAKKALA, KAKKANAD. 2. SIBY BOSE S/O. BOSE, AYELLIPPILLY HOUSE, CHATHAMVELIPADAM, VAZHAKKALA, KAKKANAD. BY ADVS. MR.MANU TOM, SMT.SMITHA GEORGE. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, THRIKKAKARA POLICE STATION, COCHIN CITY. R1 & R2 BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08/07/2009 ALONG WITH CRMC NO.1725 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1143 & 1725 OF 2009 =========================== Dated this the 8th day of July,2009 ORDER Petitioners are the accused in S.T.509/2009 and 519/2009 on the file of Judicial First Class Magistrate Court-I, Aluva. The case against the petitioners in Crl.M.C.1143/2009 is that they committed an offence under section 15C of Abkari Act by consuming alcohol on 31.12.2008 at about 10-15 p.m on Morarji ground at the side of Vazhakkala road. The case is that the Sub Inspector of Police, Thrikkakara found them consuming liquor and therefore stopped the police jeep and questioned them and thereafter took them to the doctor and obtained drunkness certificate. Annexure C final report was submitted on 1.1.2009 which shows that petitioners were given notice before the court to appear on 27.2.2009. In S.T.519/2009 prosecution case is that the very same Sub Inspector of Police reached Vazhakkala at about 10 p.m and found the accused therein consuming alcohol at Morarji ground situated on the side of Vazhakkala road and the Sub Inspector stopped the jeep and questioned them and finding that Crl.M.C.1143/09 & 1725/09 2 they consumed liquor took them to the doctor and thereafter submitted the final report. Annexure B notice was issued directing the petitioners to appear before the Magistrate on 27.2.2008 (not 2009). These petitions are filed under section 482 of Code of Criminal Procedure to quash the proceedings contending that even if the allegations in the final report is accepted, no offence under Section 15C of Abkari Act is attracted. Petitioners also contended that police is not entitled to issue summons before cognizance of the offence was taken by the Magistrate and the Magistrate is not competent to issue non-bailable warrant before serving summons on the petitioners after taking cognizance and therefore the cases are to be quashed. 2. Learned counsel appearing for the petitioners and the learned Government pleader were heard. 3. The argument of the learned counsel appearing for the petitioners is that as per the final report, taken cognizance by the learned Magistrate, petitioners were found consuming liquor at Morarji ground situated on the side of Vazahakkala public road and there is no allegation that Morarji ground is a public place and hence no offence under section 15C is attracted. Learned counsel also submitted that even if petitioners had consumed liquor from inside the bus, they cannot be prosecuted for an offence Crl.M.C.1143/09 & 1725/09 3 under section 15C, unless the consumption is from a public place and when there is no allegation in the final report that the consumption of alcohol was from a public place, the case is to be quashed. Learned counsel also argued that even if mahazars prepared by the Sub Inspector is to be relied on as per the mahazar, the Sub Inspector had only a reasonable belief that petitioners consumed liquor from a public place and as no investigation was conducted to find out whether the alleged Morarji ground is a public place or not, in the absence of material to prove that there exists a Morarji ground and the Morarji ground is a public place, petitioners cannot be convicted for the offence under Section 15C of the Abkari Act and therefore the cases can only be quashed. Learned counsel relying on the decision of the Apex Court in R.P.Kapur v. State of Punjab (A.I.R 1960 866) argued that as declared by the Apex Court where the allegations made against the accused do constitute an offence alleged but there is no legal evidence in support of the case or the evidence clearly or manifestly fails to prove the charge, this court can exercise the power under section 482 of Code of Criminal Procedure to quash the proceedings. 4. Learned Public Prosecutor submitted that the final Crl.M.C.1143/09 & 1725/09 4 report along with the mahazars prepared by the Sub Inspector of Police at the time of the arrest of the petitioners establish that petitioners were consuming alcohol from a public place which is the Morarji ground situated on the side of Vazhakkala public road and the question whether evidence is sufficient to convict the petitioners is not to be decided at this stage and the cases cannot be quashed as sought for. 5. Though learned counsel appearing for the petitioners argued that the Sub Inspector of Police is not entitled to issue notice to the petitioners to appear before the Magistrate and learned Magistrate is bound to issue summons after taking cognizance of the offence, for that defect alone the cases cannot be quashed. True, under the Code of Criminal Procedure, summons is to be issued to the accused by the court after taking cognizance of the offence and even if the Sub Inspector had issued notice to the petitioners to appear before the Magistrate on a particular day, it cannot be a substitute for a summons provided under the Code. Therefore based on the failure of the accused to appear on the day informed by the police before taking cognizance, the Magistrate cannot issue a non-bailable warrant. But for the reason that Sub Inspector had issued notice to the accused to appear Crl.M.C.1143/09 & 1725/09 5 before the learned Magistrate, even before submitting the final report, much less taking cognizance of the offence , the cases cannot be quashed. 6. The question is whether the final report submitted by the Sub Inspector of Police taken cognizance by the learned Magistrate along with the materials produced, if accepted would constitute the offence as alleged. If it does not constitute an offence, the prosecution is only an abuse of process of court and if so petitioners are entitled to get the cases quashed as sought for. 7. Section 15C of the Abkari Act provides that no person shall consume liquor in any public place unless consumption of liquor in any such place is permitted under a licence granted by the Commissioner. Explanation 1 provides that for the purpose of the Section 'public place' means any street, Court, Police Station or other public office or any club or any place of public amusement or resort or on board any passenger boat or vessel or any public passenger vehicle, or a dining or refreshment room in a restaurant, hotel, rest house, travellers bungalow or tourists bungalow where different individuals or groups of persons consume food, but shall not include any private residential room. As no separate punishment is provided under section 15C, punishment could only be as provided Crl.M.C.1143/09 & 1725/09 6 under Section 63. Under section 63 of the Abkari Act, whoever is guilty of any act or intentional omission in contravention of any of the provisions of the Act or of any rule or order made under the Act, and not otherwise provided for in the Act shall, on conviction before a Magistrate be punished for a fine which may extend to five thousand rupees or with imprisonment for a term which may extend to two years or with both. Therefore what is to be proved for a conviction for the offence under section 15C with Section 63 of the Abkari Act is that the accused consumed liquor in any public place which is not permitted under a licence granted by the Commissioner. 8. The argument of the learned counsel is that as there is no specific allegation that Morarji ground is a public place an offence under Section 15C is not attracted even if petitioners have consumed liquor from an open space. The argument is that there is no Morarji ground and even if there is a Morarji ground as claimed,as there is no material to prove that Morarji ground is a public place, Section 15C is not attracted. When the question of quashing a complaint under section 482 of Code of Criminal Procedure arises, the question cannot be decided based on either the F.I.R alone or the final report alone. When final report is sought to be quashed, all the materials Crl.M.C.1143/09 & 1725/09 7 produced along with the final report should necessarily be gone into, and if the final report along with the materials make out the ingredients of an offence, it is not a case for quashing. If that be so, he mahazars produced show that petitioners were found consuming alcohol from Morarji ground on the side of Vazhakkala public road. The absence of a specific allegation that Morarji ground is a public place is not fatal so as to quash the complaint as sought for. The question whether Morarji ground exist as claimed by the prosecution or does not exist as claimed by the petitioners or whether Morarji ground is a public place or not cannot be decided in this petition and has to be decided only on the evidence to be let in at the time of trial. Therefore on that ground, the cases cannot be quashed. 9. Learned counsel appearing for the petitioners then submitted that as the case is being tried as a summons case, petitioners will not get an opportunity to seek discharge and therefore this court has to consider that aspect and quash the cases. The fact that when the accused are being tried following the procedure prescribed for trial of summons cases, which does not provide for a discharge, does not mean that the cases are to be quashed on the grounds canvassed by the petitioners. Petitioners Crl.M.C.1143/09 & 1725/09 8 are definitely entitled to raise these questions at the time of trial and if there is evidence to prove that there is no Morarji ground or that it is a public place, they cannot be convicted for the offence under section 15C of the Abkari Act. Petitioners are definitely entitled to raise all these points at the time of trial and learned Magistrate is bound to consider it. 10. Then the learned counsel submitted that as the petitioners did not appear learned Magistrate had issued warrant and without issuing summons, learned Magistrate should not have issued warrant. There is force in the submission. If petitioners files application to recall the warrants, learned Magistrate has to recall the warrants. Petitioners are also entitled to seek exemption before the learned Magistrate at the time of trial and if an application is filed under section 205 of Code of Criminal Procedure, exemption is to be granted. Petitions are disposed accordingly. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006