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2001 DIGILAW 645 (KER)

In re State of Kerala v. .

2001-11-12

K.A.MOHAMMED SHAFI, P.K.BALASUBRAMANYAN

body2001
Judgment :- P.K. Balasubramanyan, J. This is a reference made on the basis of a report submitted by the Principal Assistant Sessions Court, Thrissur submitting that the case, S.C. No. 24 of 1995 made over to him for trial by the Sessions Court, Thrissur could not be tried by him effectively in view of the fact that before committing the case to the Sessions Court, the Judicial First Class Magistrate had not conducted an enquiry in terms of S.202 of the Code of Criminal Procedure. The learned Principal Assistant Sessions Judge has reported that since he has got no power to send back the records to the Magistrate concerned for conducting an enquiry in terms of S.202(2) of the Code of Criminal Procedure, the matter is being referred to this Court. 2. We have heard the learned Public Prosecutor. Though served with notice, the accused have not appeared. 3. The Assistant Sessions Judge appears to be of the view that the Judicial First Class Magistrate should have conducted an enquiry under S.202 of the Criminal Procedure Code before committing the case to the Court of Session. The proceedings before the Magistrate arose out of the filing of a report by the Excise Inspector, Cherpu Range, an Abkari Officer, within the meaning of the Abkari Act, against the accused before the judicial 1st Class Magistrate Court-I, Trichur, for the offences punishable under Ss.56 and 57(iii) of the Abkari Act on the primary allegation that methyl alcohol was detected in the arrack kept for sale in the arrack shop run by the accused. Since the offence was exclusively triable by the Court of Session, the Magistrate committed the case to the Court of Session in terms of S.50A of the Abkari Act. The case was made over by the Sessions Judge to the Principal Assistant Sessions Judge. It is thereafter that the reference has been made on the basis of the view of the Assistant Sessions Judge that an enquiry under S.202.of the Code of Criminal Procedure was mandatory before committing the case to the Court of Session. 4. The relevant provisions of the Abkari Act may be referred to first. S.3(2) of the Act defines an Abkari Officer as meaning the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Ss.4 and 5 of the Act. 4. The relevant provisions of the Abkari Act may be referred to first. S.3(2) of the Act defines an Abkari Officer as meaning the Commissioner of Excise or any officer or other person lawfully appointed or invested with powers under Ss.4 and 5 of the Act. S.4 contemplates the issuance of a notification appointing the officers under the Act. S.4(d) contemplates appointment of officers to perform the acts and duties mentioned in Ss.40 to 53 of the Act. S.30 of the Act confers power on a Magistrate or the Commissioner of Excise, to issue a search warrant if he has reason to belive that an offence under the Act has been committed. S.31 of the Act confers power on certain Abkari and police officers to make searches without warrant. The power to enter and inspect and in case of resistance, to make entry by force are also provided. S.34 of the Act confers powers to arrest the offenders and to seize the contraband liquor and vehicles and other adjuncts used for manufacturing or transporting contraband liquor. Sub-s.2 of S.34 provides that the provisions of the Code of Criminal Procedure, 1973 shall apply in so far as they are not inconsistent with the provisions of the Act to all arrests, searches and seizures made under the Act. S.35 provides for arrest of a person refusing to give his name or for giving a false name. S.36 of the Act provides that all searches under the provisions of the Act shall be made in accordance with the provisions of the Code of Criminal Procedure, 1973. The proviso says that the persons called upon to attend and witness searches, shall include at least two persons neither of whom is an Abkari, Police or Village Officer. S.40 lays down the procedure to be followed by an officer on arrest and seizure. S.41 deals with the disposal of the persons arrested. S.41A provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under the Act shall be cognizable and that no person accused of an offence punishable for a term of mprisonment of three years or more under the Act, shall be released on bail or on his own bond unless the conditions specified therein are satisfied. Sub-section 2 provides that the limitations on granting bail specified in the Section are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting the bail. Section 44 of the Act confers power on the Abkari Officers to summon witnesses. It casts an obligation on the Inspector to reduce into writing the answers given by the witnesses and provides that the officer shall also sign the statements so taken. Section 47 gives power to the Abkari Officer to go to the residence of a particular person whom he wishes to examine, in case the conditions prescribed therein are satisfied. Section 48 confers power on the Abkari Inspector to summon persons suspected of offences against the Abkari laws. Section 49 provides that the law for the time being in force, as to summonses and compelling the attendance of persons summoned in Criminal Courts, shall, as far as may be, applied to any summons issued by an Abkari Inspector. Section 50 contemplates that the investigation by the Abkari Officer should be completed without unnecessary delay and as soon as investigation is completed, the forwarding by the Abkari Officer to a Magistrate empowered to take cognizance of the offence on a police report, a report in accordance with Section 173(2) of the Code of Criminal Procedure. Section 50A provides the procedure to be adopted by the Magistrate on receiving such a report. Section 51 confers powers on the Abkari Inspector to cause the attendance of witnesses before the Magistrate. 5. Sections 50 and 50A of the Act were substituted by the Amending Act, Act 16 of 1997 with effect from 3.6.1997. Prior to the substitution, Section 50 as it stood, read as follows: "50. Section 51 confers powers on the Abkari Inspector to cause the attendance of witnesses before the Magistrate. 5. Sections 50 and 50A of the Act were substituted by the Amending Act, Act 16 of 1997 with effect from 3.6.1997. Prior to the substitution, Section 50 as it stood, read as follows: "50. Report of Abkari Inspector gives jurisdiction to a competent Magistrate: When an Abkari Inspector forwards in custody any person accused of an offence under this Act to the Magistrate having jurisdiction to try the case or admits any such person to bail to appear before such Magistrate such officer shall also forward to such Magistrate a report setting forth the name of the accused person and the nature of the offence with which he is charged and the names of the persons who appear to be acquainted with the circumstances of the case, and shall send to such Magistrate any article which it may be necessary to produce before him. Upon receipt of such report the Magistrate shall inquire into such offence and try the person accused thereof in like manner as if complainthad been made before him as prescribed in the Code of Criminal Procedure, 1898." 6. It can be noted that upon a receipt of a report from the Abkari Officer, the Magistrate was required to enquire into the offence and try the person accused thereof in like manner as if a complaint had been made before him as prescribed in the Code of Criminal Procedure. Section 190 of the Code of Criminal Procedure enabled a Magistrate empowered in that behalf to take cognizance of any offence (a) upon receipt of a complaint of facts which constitute such offence (b) upon a police report of such facts and (c) upon information received from any person other than a police officer, or upon his own knowledge that such offence has been committed. Therefore, when Section 50 of the Act as it stood, provided that the offence shall be enquired into and tried in like manner as if a complaint had been made as prescribed in the Code of Criminal Procedure, it was a situation contemplated by Section 190(1)(a) of the Code of Criminal Procedure and consequently by Section 202 of the Code of Criminal Procedure. 7. 7. Before proceeding further, we may also notice that Sections 40 and 41 of the Act were also amended by Act 16 of 1997 with effect from 3.6.1997. That amendment also brought in, Section 41A of the Act which provided that notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under the Abkari Act shall be cognizable. What is to be noted is that before the amendment by Act 16 of 1997, there was no Section corresponding to Section 41A of the Act in the statute book. 8. Interpreting the provisions as they stood before the amendment by Act 16 of 1997, a Division Bench of this Court held in State of Kerala v. Balakrishnan (1991 (2) K.L.T. 323) that it was mandatory for the Magistrate to conduct an enquiry under the proviso to Section 202(2) of the Code of Criminal Procedure and that if the complaint filed under Section 50 of the Abkari Act disclosed an offence exclusively triable by the Court of Session, the Magistrate was bound to conduct a mandatory enquiry contemplated under the proviso to Section 202(2) of the Act by calling upon the complainant to produce all his witnesses and examining them on oath and only thereafter make a committal of the case to the Court of Session. Earlier, a Full Bench in Moideenkutly Haji v. Kunhikoya (1987(1) K.L.T. 635) had held that the enquiry contemplated by the proviso to Section 202(2) of the Code was mandatory, when an enquiry as provided in Section 202 of the Code was contemplated. Noticing the decision of the Full Bench and that of the Division Bench above referred to, a learned Single Judge of this court in Crl. M.C. 2020 of 1990 decided on 21.6.1996 took the view that an enquiry by the Magistrate under Section 202(2) of the Code of Criminal Procedure was mandatory in the case of a complaint received from an Abkari Officer in terms of Section 50 of the Act, as it stood. We may also notice that, without noticing the amendment brought about by Act 16 of 1977, another learned Single Judge in the decision in Balan v. State of Kerala (1999(1) K.L.T. 13) reiterated that an enquiry under Section 202(2) of the Code of Criminal Procedure is mandatory. 9. We may also notice that, without noticing the amendment brought about by Act 16 of 1977, another learned Single Judge in the decision in Balan v. State of Kerala (1999(1) K.L.T. 13) reiterated that an enquiry under Section 202(2) of the Code of Criminal Procedure is mandatory. 9. Section 202 of the Code of Criminal Procedure provides that on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him by the Chief Judicial Magistrate under Section 192 of the Code, the Magistrate may, if he thinks fit, postpone the issue of process against the accused and either enquire into the case himself or direct an investigation by the police officer for the purpose of deciding whether or not there is sufficient ground for proceeding. It is in that context that sub-section (2) of Section 202 provides that in an enquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath. Since under the Abkari Act as it stood prior to the Amendment by Act 16 of 1997, the report made by the Abkari Inspector had to be enquired into and tried in like manner as if a complaint had been received by the Magistrate as prescribed under the Code, it was possible to postulate that the enquiry had to be made under the proviso to Section 202(2) of the Code of Criminal Procedure. The procedure contemplated by Section 202 of the Code had to be followed on receipt of a complaint coming within the purview of Section 190(1)(a) of the Code. It is in that context that the Division Bench and the two learned judges of this court in the decisions referred to took the view that the enquiry by the Magistrate under the proviso to Section 202(2) of the Code was mandatory, on receipt of a report from the Abkari Inspector. If the complaint is not dismissed under Section 203 of the Code, the Magistrate had to follow the procedure contemplated by Section 204 of the Code and issue process and then proceed to try the case as contemplated by Code. But if the case was one triable by the Court of Session, the Magistrate had to follow the procedure prescribed by Sections 208 and 209 of the Code and commit the case to the Court of Session. But if the case was one triable by the Court of Session, the Magistrate had to follow the procedure prescribed by Sections 208 and 209 of the Code and commit the case to the Court of Session. But, in a case when the proceeding has been instituted on a police report, within the meaning of Section 190(1)(b) of the Code, the procedure which has to be followed by the Magistrate is the one contemplated under Section 207 of the Code and if the offence were one triable exclusively by the Court of Session, he has to follow the procedure contemplated by Section 209 of the Code. 10.The question for consideration is what if any is the change brought about by the amendment to the Abkari Act, by Act 16 of 1997. We have already noted the introduction of Section 41A in the Act. Section 50 of the Act was amended and in its place the amended Section 50 was incorporated and Section 50A was introduced. We think it profitable to set down the amended Sections hereunder. 50. Report of Abkari Officer gives jurisdiction to a competent Magistrate: (1) Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-section(2) of Section 173 of the Code of Criminal Procedure. 1973 (Central Act2 of 1974). 50 A. Procedure to be adopted on receipt of report: - Upon receipt of a final report from the Abkari Officer, the Magistrate shall inquire into such offence and commit to Court of Session if the offence is exclusively triable by Court of Session or try the person accused thereof in like manner as if a case is instituted upon a police report as provided in the Code of Criminal Procedure. 1973(Central Act 2 of 1974)." (emphasis supplied) 11. 1973(Central Act 2 of 1974)." (emphasis supplied) 11. It can straightaway be seen that Section 50(2) has specifically provided that the Abkari Officer shall forward to a Magistrate empowered to take cognizance of an offence on a police report, a report in accordance with sub-section (2) of Section 173 of the Code of Criminal Procedure and that the Magistrate upon receipt of the final report under Section 50A of the Act shall inquire into such offence and commit it to the Court of Session if the offence is exclusively triable by the Court of Session, or try the accused by himself in like manner as if a case is instituted upon a police report as provided in the Code of Criminal Procedure, 1973. We have already noted that the procedure to be followed in a case instituted upon a police report is the one contemplated by Section 207 of the Code read with Section 209 of the Code, if the offence were one triable exclusively by the Court of Session. The provision in Section 50(2) read with Section 50A of the Act in our view, leaves no room for doubt that the case has to be considered as one instituted on a police report as contemplated by Section 190(1)(b) of the Code. It is therefore clear that the intention behind the amendment was to exclude the application of Section 202 of the Code and to dispense with an enquiry under Section 202(2) of the Code of Criminal Procedure. This intention is manifest from the change regarding the manner in which a report made by the Abkari Officer has to he treated. Whereas under Section 50 of the Act as it stood before the amendment, it had to be inquired into in like manner as if a complaint had been made before the concerned Magistrate, after the amendment, it has to be proceeded with in like manner as if a case is instituted upon a police report. If we give effect to the intention of the Legislature in making the amendment and consider the mischief sought to be averted, it is clear that the earlier decisions insisting that there should be an enquiry under Section 202 of the Code, could not be applied, subsequent to the amendment brought about to the Abkari Act, by Act 16 of 1997 and amendment of Section 50 and the introduction of Section 50A. 12. 12. Section 50 of the Abkari Act was amended and Section 50A of the Act was introduced by Act 16 of 1997 with effect from 3.6.1997. Section 50A of the Act is dearly procedural on its terms. It only deals with the procedure to be adopted in terms of the Code of Criminal Procedure, which again, is generally, only procedural. The marginal heading of the Section also indicates that it deals with the procedure to be adopted on receipt of a report. Thus clearly, it is a procedural provision. An amendment to the law of procedure is generally held to be retrospective and affects pending actions also. As stated by the Supreme Court in Eapen Chacko v. Provident Investment Company (P) Ltd. ((1997) 1 SCC 593), if a statute deals mearly with procedure in an action; but does not affect the rights of parties, it will be held to apply to all actions, pending and future. There is no vested right involved in the procedure to be followed by a Magistrate on a complaint received under the Abkari Act. He can either try it himself or commit it to Court of Session, depending on the offence. Even otherwise the enquiry under Section 202 of the Code is only a procedure to be followed before issuing process to the accused and it is done in the absence of the accused. No substantive rights of the accused are affected. We believe that our view that it is only procedural, is supported by the decisions of the Supreme Court in Chandra Deo v. Prakash Chandra (AIR 1963 SC 1430), Rosy v. State of Kerala (2000(1)KLT 494(SC)) and in U.P. Pollution Control Board v. Mohan Meakins Ltd. ((2000) 3 SCC 745). So, when the statute says that the report of the Abkari Officer is to be treated as a police report in accordance with Section 173(2) of the Code, it has only altered the form of procedure to be followed; by the Magistrate under the Code of Criminal Procedure. As observed by Lord Denning in Blyth v. Blyth ((1966) AC 643 at 666). "The rule that an act of Parliament is not to be given retrospective effect only applies to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure, or the admissibility of evidence or the effect which. the courts give to evidence." 13. "The rule that an act of Parliament is not to be given retrospective effect only applies to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure, or the admissibility of evidence or the effect which. the courts give to evidence." 13. We thus hold that in view of the amendment of Section 50 and the introduction of Section 50A of the Abkari Act, it is not necessary in a case to be committed to Court of Session, for a Magistrate to hold an enquiry as contemplated by the proviso to Section 202(2) of the Code of Criminal Procedure. This will be the position in proceedings which are pending, even if the proceedings were initiated under the Abkari Act before the introduction of Section 50A of the Act. Hence in the present case, the Assistant Sessions Judge is in error in thinking that the committal was defective for want of an enquiry under the proviso to Section 202(2) of the Code of Criminal Procedure. The decision in Balan v. State of Kerala (1999(1) K.L.T.13) has to be overruled. The only enquiry contemplated by the Magistrate before committing the case to the Court of Session, is the enquiry contemplated by Section 50A of the Act. That enquiry is limited to finding out whether the offence is triable by him or it is triable only by a Court of Session. If he finds that the offence is triable by him, he has to comply with Section 207 of the Code and deal with it thereafter as provided for in the Code. If the offence is triable exclusively by the Court of Session, he has to act in terms of Section 209 of the Code. 14. It is true that in the decision in State of Kerala v. Gangadharan Nadar (2000(1) KLJ 774) this Court answered a reference by stating that a commitment prior to introduction of Section 50 and Section 50A of the Abkari Act without following the procedure as stipulated in sub section (2) of Section 202 of the Code was bad and directing that procedure to be followed. But the question whether the amendment was procedural and hence could not be considered to be retrospective was not considered. But the question whether the amendment was procedural and hence could not be considered to be retrospective was not considered. Also, in Rosy v. State of Kerala (2000(1) KLT 494 (SC)) the Supreme Court has held that the objection that no enquiry was made in terms of Section 202 of the Code of Criminal Procedure could not be raised at a later stage. The Supreme Court has also held that though as far as possible, the mandate of the proviso to Section 202 of the Code of Criminal Procedure should be complied with, the said mandate was not absolute. The court also held that if a party failed to raise such an objection at the earliest stage, he is precluded from raising such objection later. 15. In the case on hand, no objection was raised by the accused to the procedure followed by the Magistrate at any time. The Assistant Sessions Judge took it upon himself to discover such an objection when the case came to him on transfer from the Sessions Court. In the light of the decision of the Supreme Court above referred to, the references was unwarranted and the Assistant Sessions Judge could proceed to try the offence. Of course, in our view that the procedure applies retrospectively, even otherwise, no fresh committal after following the procedure under Section 202 of the Code of Criminal Procedure is necessary. The reference is answered as above. The Assistant Sessions Judge concerned is directed to try and dispose of S.C.24 of 1995 in accordance with law.