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1995 DIGILAW 2 (KER)

Abdul Rehman Asanaru Kunju v. State Of Kerala

1995-01-03

M.M.PAREED PILLAY, P.SHANMUGAM, T.V.RAMAKRISHNAN

body1995
Judgment :- PAREED PILLAY. AC. C.J. Petitioners in Crl M.C. 357 of 1993 are the accused in S.C. 8 of 1993. That case was instituted upon complaint by the Excise Circle Inspector, Punalur under Section 20, (3)(i) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act'). The allegation against them is that they on. 13-3-1990 at about 11 a.m. have kept 120 gms. of ganja for sale in the shop taken on lease by the second petitioner. The Excise Inspector had earlier filed a complaint before the Magistrate Court on the very allegation. That case was committed to the Sessions Court, Kollam and it was numbered as S.C. 58 of 1991. Charge was framed. It was read over to the petitioners on 2-12-1992. Case was posted for trial on 16-1-1993. On that day the Sessions Court was apprised of the fact that the Excise Inspector who filed the complaint (Annexure A-1) before the Magistrate was not authorised by the Government under Section 36-A (1)(d) of the Act to institute the case. Thereupon, Sessions Judge discharged the petitioners. On the same day Annexure A-4 complaint was filed before the Sessions Judge on the very same facts alleged in Annexure A-1 complaint. Crl. M.C. 357 of 1993 is to quash Annexure A-4 complaint. 2. Facts are similar in Crl. M.C. 633 of 1993. The complaint was originally filed before the the Judicial Magistrate of the First Class, Kottarakkaa, Magistrate committed the case for trial to the Sessions Court on 16-1-1993. Accused was discharged as it was found that the Excise Inspector did not have the competency to file the complaint. On the same day fresh complaint alleging very same facts in the earlier complaint was filed. Crl. M.C. 683 of 1993 is to quash the latter complaint. 3. Petitioners were discharged by the Sessions Judge and for doing so he relied on Variev v. State of Kerala (1993 (1) KLT 72). Bench decision of this Court held that in a case where Excise Inspector had no authority to file complaint under the Act. Special Court or Sessions Court had no jurisdiction to take cognizance of the same and that the Court could not have framed charge against the accused. Bench decision of this Court held that in a case where Excise Inspector had no authority to file complaint under the Act. Special Court or Sessions Court had no jurisdiction to take cognizance of the same and that the Court could not have framed charge against the accused. It was also held that the trial which followed the said charge should be treated as one without jurisdiction and so it cannot lead to conviction or acquittal and hence the Court ought to have discharged the accused under Section 227 Cr.P.C. 4. Contention of the petitioners is that the Magistrate could have taken cognizance of the offence even if the Excise Inspector lacked authority to file the complaint under the Act and so the discharge by the Sessions Court amounted to acquittal and consequently filing of the second complaint before the Sessions Court and that Court taking cognizance of the same cannot be countenanced. It is urged that this is a case where charge was framed and read over to the petitioners and hence only two options were available before the Judge viz. acquittal or conviction and as the discharge would amount to acquittal and if that be so, second, prosecution cannot be proceeded with in view of Section 300, Cr.P.C. Counsel relied on the decision in R. B. Mithani v. State of Maharashtra (AIR 1979 SC 94) : 1979 (2) SCC 179 : 1979 Cri LJ 41 in support of his contention that once a charge is framed in a warrant case instituted either on complaint or police report, Magistrate has no power under the Code to discharge the accused and thereafter he can only either acquit or convict the accused. Counsel also relied on State of Kerala v. Sebstian, (1982 KLT 724 : 1983 Cri LJ 416 where Kader J. held that after framing charge against the accused in a criminal case, the only order that could be passed is either an order of conviction or acquittal and not an order of discharge. Counsel also relied on State of Kerala v. Sebstian, (1982 KLT 724 : 1983 Cri LJ 416 where Kader J. held that after framing charge against the accused in a criminal case, the only order that could be passed is either an order of conviction or acquittal and not an order of discharge. Reliance is also placed on State of Maharashtra v. B. K. Subbarao (1993 Crl LJ 2984) Bom, where the Supreme Court held :- "Under the provisions relating to trials before a Court of Session the Court can discharge the Accused prior to the framing of the charge if there is insufficient material or if on any ground of law the Court finds that it is not permissible to frame a charge. After the stage of framing of the charge, the Code of Criminal Procedure prescribes that there can be only one of the two conclusions to the trial, either the Accused is convicted or he is acquitted. If, for any reason, the trial has proceeded beyond the stage of framing of the charge and the plea has been taken, an order of discharge will not be permissible." 5. In State of Kerala v. Balakrishnan (1991 (2) KLT 323), this Court held that by virtue of S. 36-D, of the N.D.P.S. Act Sessions Court is competent to exercise the power under Clauses (c) and (d) Sub-section (1), of Section 36-A, as if it is a special Court constituted under Section 36, and that the Sessions Court empowered under Section 36-D can take cognizance of the offence without there being a committal proceeding and the method of taking cognizance in the manner laid down in Sections 190 and 193 Cr.P.C. is not applicable to the Sessions Court trying offences under Section 36-D of the Act. Section 190 Cr.P.C. enables the Magistrate to take cognizance of any offence upon receiving a complaint of facts which constitutes such offence; upon a police report of such facts and also upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Section 190 Cr.P.C. enables the Magistrate to take cognizance of any offence upon receiving a complaint of facts which constitutes such offence; upon a police report of such facts and also upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Relying on Section 190 Cr.P.C. counsel for the petitioners contended that even though the Excise Inspector did not have the competency to file the complaint the Magistrate having been apprised of the offence could have taken cognizance of the same and hence it cannot be said that the Magistrate lacked inherent jurisdiction in taking cognizance of the offence. It is further submitted that in view of the committal proceedings and consequent framing of the charge by the Sessions Judge, the discharge of the petitioners certainly amounts to acquittal and hence the second prosecution can never be entertained legally. 6. Section 36-D of the Act is a transitional provision. It postulates that until a special Court is constituted under Section 36, any offence committed under the Act can be tried by a Court of Session. This is notwithstanding anything contained in the Criminal Procedure Code, Section 4(2), of the Code states that all offences under any law other than Indian Penal Code shall be innvestigated, inquired into, tried and otherwise dealt with according to the provisions under the Code but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying, or otherwise dealing with such offences. As the Act enables Special Courts, Sessions Courts to take cognizance of the offences without there being a committal proceedings Section 193 Cr.P.C. cannot have any application. Section 193, states that except as otherwise expressly provided by the Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. Section 193, states that except as otherwise expressly provided by the Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. As the trial of the offence under the Act has to be conducted in accordance with the provisions of the Act and as Section 36-A (1)(d) in categoric terms states that the Special Court may, upon a perusal of police report or upon a complaint made by an officer of the Central Government or State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial, merely because the Magistrate has committed the petitioners to stand trial before the Sessions Court, it cannot be said that the Court is vested with jurisdiction to go on with the trial when the Excise Inspector lacked jurisdiction to prefer the complaint. In that view of the matter, order of discharge of the petitioners made by the Sessions Judge does not amount to acquittal. As the prosecution would have failed for want of the fundamental defect in the Excise Inspector not being clothed with the power of prosecution under the Act, discharge of the petitioners does not amount of their acquittal. 7. Section 201 Cr.P.C. prescribes the procedure when a Magistrate is not competent to take cognizance of the case. When the complaint is made to a Magistrate who is not competent to take cognizance of the offence and if the complaint is in writing, he should return it for presentation to the proper Court with an endorsement to that effect. In a case where the complaint is not in writing, he has to direct the complaint to the proper Court. As the course open to the Magistrate was to have directed the Excise Inspector to present the complaint before the proper Court as provided under Section 201, of the Cr.P.C. and as the Act is eloquent to the absence of committal proceedings, taking cognizance of the offence by the Magistrate and committing the same to the Sessions Court was really without jurisdiction. Only in a case where the Magistrate has power to take cognizance of the case and commit it for trial to the Sessions Court, discharge of the accused after framing charge and reading it to him would amount to acquittal. The whole basis of Section 300(1), of the Code is that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal. As the required sanction for prosecution was not with the Excise Inspector, the Sessions Judge who discharged the petitioners was not competent to try the case. Sessions Judge having realised the position that the Excise Inspector lacked jurisdiction to prefer the complaint against the petitioners under the Act was perdectly justified in discharging them. 8. In a case where the former Court has no jurisdiction over the subject matter, it is apparent that it lacked competency to try the offence. It is true of committal proceedings as well. As the Magistrate lacked jurisdiction to take cognizance of the case as the offence is exclusively triable by the Special Court or Sessions Court and as he lacked jurisdiction to Commit the proceedings to the Special Court or Sessions Court, merely on account of the committal proceedings the Special Court or Sessions Court does not get jurisdiction to try the offence. As the Special Court or Sessions Court is empowered under Section 36-A(1)(d), to take cognizance of the offence without there being a committal proceedings and as the method of taking cognizance in the manner laid down in Sections 190 and 193, of the Code is not applicable to the Sessions Court trying the offences under Section 36-D of the Act, the order of discharge by the Sessions Judge will not amount to acquittal of the accused. 9. In re (AIR 1952 Madras 725) accused was acquitted as the prosecution was without valid sanction. Second prosecution was not held bad despite the acquittal of the accused at the first instance. The Madras High Court held thus :- "For the bar of a fresh trial under S. 403 the Court by which the accused was first tried should be competent to try the offence. Second prosecution was not held bad despite the acquittal of the accused at the first instance. The Madras High Court held thus :- "For the bar of a fresh trial under S. 403 the Court by which the accused was first tried should be competent to try the offence. Where there was no valid sanction for the prosecution of the accused the prosecution was a nullity and the order acquitting the accused was without jurisdiction and could only operate as an order of discharge the accused had not been tried by a Court of competent jurisdiction and accordingly S. 403(1) was no bar to the institution of a fresh prosecution against the accused for the same offence on the same facts as in the former prosecution." As the first prosecution was without valid sanction, it is really a nullity and hence the order of discharge of the petitioners cannot be held to be a bar to the second trial on the basis of valid sanction. 10. For the foregoing reasons, we do not hold that the dictum laid down in Varkey v. State of Kerala (1993 (1) KLT 72), requires reconsideration. We agree with the said decision. 11. In the light of the findings, the reference has to be answered as follows :- Consequent on the constitution of a Special Court under Section 36 of the Act, only the Special Court or the Court of Session had got jurisdiction to try the offences under the Act. As the Excise Inspector had no authority to file the complaint before the Magistrate Court, the Sessions Judge was not bound to follow the procedure prescribed in Chapter XVIII of the Code. The Sessions Judge was justified in discharging the petitioners as the complaint was filed before the magistrate by an officer who is not authorised to do so. Taking cognizance of the offence by the Sessions Judge when the complaint was properly filed before him cannot be held to be in violation of Section 300(1) Cr.P.C. Initiation of the proceedings against the petitioners before the proper Court by the properly authorised officer cannot be said to be without jurisdiction and non est in law. We do not find any legal ground to quash the complaints preferred against the petitioners. Criminal Miscellaneous Cases are dismissed. The Sessions Judge is directed to proceed with the matter in accordance with law. Petition dismissed.