IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 Crl.Rev.Pet.No. 3127 of 2008() ------------------------------ AGAINST THE ORDER DATED 02/09/2008 IN CRMP 5450/08 IN CC.357/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT, ADOOR .................... REVN. PETITIONER: ------------------ JACOB JOHN, CIRCLE INSPECTOR OF EXCISE, ALUVILLA HOUSE, KARICKAM P.O. KOTTARAKKARA BY ADV. SRI.SUNIL JACOB JOSE RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR'S HIGH COURT OF KERALA, ERNAKULAM 2. RAGHURAJAN, S/O. GANGADHARAN, MARUPPEL PUTHENVEEDU, MAROOR, ERANDIMANGALAM, ADOOR 3. K.BABU, EXCISE GUARD, O/O. EXCISE RANGE INSPECTOR ADOOR BY PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04-09-2008 , THE COURT ON 04/09/2008 PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 3127 of 2008 * * * * * * * * * * * * * * * * * * Dated: 04-09-2008 ORDER Petitioner , now a Circle Inspector of Excise is prosecuted by the 2nd respondent herein by means of a private complaint now pending before the J.F.C.M., Adoor in C.C. No. 357 of 2002 for offences punishable under Sections 452, 323 and 330 read with Sec. 34 I.P.C. The learned Magistrate took cognizance only of the offence punishable under Sec. 323 I.P.C. against the petitioner herein who is the first accused and against the 3rd respondent an Excise guard as the 2nd accused. The case of the complainant is that he was manhandled pursuant to his arrest in an abkari case on 4-1-2000. 2. The petitioner would contend that the complainant herein had no such grievance when he was arrested and produced before the Magistrate and the very same case (the abkari case) ended in conviction . The acts alleged against the petitioner squarely attracts Section 797 Cr.P.C. as interpreted by this Court in Sarojini v. Prasanna - 1996 (2) KLT 859. In Crl.M.C. 558 of 2004 filed by the petitioner raising the question of sanction under Sec. 197 Cr.P.C., this Court was not inclined to allow the petitioner to raise it before the Crl.R.P. 3127 of 2008 -:2:- commencement of trial. The grievance of the petitioner is that his petition filed as Crl.M.P. 5450 of 2008 seeking discharge has been dismissed on 2-9-2008 as not maintainable and on the very same day the learned Magistrate took his plea under Sec. 251 Cr.P.C. without giving the petitioner an opportunity of being heard. 3. I see some force in the submission made by the learned counsel for the petitioner. It is true that as per Annexure A order dated 31-7-2008 in Crl.M.C. 558 of 2004 this Court did not entertain the defence raised by the petitioner on the basis of Sec. 197 Cr.P.C. for the reason that the said defence is one which he can profitably raise during the trial of the case. But then the petitioner has a further contention that on account of the bar under Sec. 54 A(1) of the Abkari Act , the prosecution against him will not lie without the previous sanction of the Government and that he is immune to prosecution by virtue of Sec. 54 A (2) of the Abkari Act. I am satisfied that the petitioner did not get sufficient opportunity to put across his points before the learned Magistrate. I, therefore, set aside the order passed by the Magistrate recording the substance of accusation put to the revision petitioner under Sec. 251 Cr.P.C. and permit the petitioner to seek dropping of the proceedings under Sec. 251 Cr.P.C. by pressing into service Dr. Kamala Rajaram v. State of Kerala - Crl.R.P. 3127 of 2008 -:3:- 2005 (3) KLT 617. This Revision is disposed of as above. The learned Magistrate shall not proceed with the trial of the case without giving the petitioner an opportunity as above. V. RAMKUMAR, (JUDGE) ani.