- Bookmark
- Share
- CaseIQ
State Of Kerala v. Balakrishnan
Structured Summary of the Opinion (Balakrishnan, J.)
Factual and Procedural Background
Two criminal references were placed before a Division Bench because it was felt that the decision in State v. Moidu (1990 (2) KLT 275 : 1990 (2) KLJ 202) conflicted with the Full Bench decision in Moideenkutty Haji v. Kunhikoya (1987 (1) KLT 635).
Criminal Reference No. 5/90 raised the question whether, in a complaint filed under the Narcotic Drugs and Psychotropic Substances Act, 1985 (the "Act"), a Magistrate must conduct the enquiry contemplated under section 202(2) of the Code of Criminal Procedure (the "Code") and commit the case to the Sessions Court, or whether the Sessions Court empowered under section 36D of the Act can take cognizance of the offence as if it were a court of original jurisdiction (i.e., without committal proceedings).
Criminal Reference No. 3/90 arose under the Abkari Act. The factual nucleus given in the opinion is that the Circle Inspector of Excise, Kannur filed a report before the Judicial II Class Magistrate, Kannur alleging that the accused committed an offence punishable under section 57 (and section 57A as newly inserted) of the Abkari Act. Because the offence disclosed was exclusively triable by a Court of Session, the Magistrate committed the case to the Sessions Court without conducting the enquiry contemplated by section 202(2) of the Code. The Sessions Judge referred the matter to the High Court to decide the legality and propriety of the Magistrate's order committing the case without conducting the S.202(2) enquiry.
Legal Issues Presented
- In respect of offences under the N.D.P.S. Act (Criminal Reference No. 5/90): whether a Magistrate must conduct the enquiry contemplated by section 202(2) Cr.P.C. before committing the case to the Sessions Court, or whether the Sessions Court under section 36D of the Act may take cognizance and try such offences without committal proceedings (i.e., as if a court of original jurisdiction).
- In respect of the Abkari Act matter (Criminal Reference No. 3/90): whether the Magistrate properly committed a complaint/report (filed under section 50 of the Abkari Act) relating to an offence exclusively triable by the Sessions Court without conducting the mandatory enquiry under the proviso to section 202(2) Cr.P.C.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State v. Moidu (1990 (2) KLT 275 : 1990 (2) KLJ 202) | Held that in a prosecution for offences punishable under the N.D.P.S. Act the Magistrate need not conduct an enquiry under S.202(2) Cr.P.C. before committing the case to the Sessions Court. | The Court treated this decision as correctly decided in the context of the N.D.P.S. Act but held that its observations as to complaints filed by public servants under S.200(a) Cr.P.C. are not binding so far as matters arising under the Abkari Act (S.50) are concerned; the opinion confines the Moidu holding to the N.D.P.S. context where the special statutory machinery applies. |
| Moideenkutty Haji v. Kunhikoya (1987 (1) KLT 635) | Full Bench held that where a complaint discloses an offence exclusively triable by a Court of Session the Magistrate must conduct the mandatory enquiry under the proviso to S.202(2) Cr.P.C. (call complainant to produce all witnesses and examine them on oath) before committing the case. | The Court followed and applied this Full Bench principle to the Abkari Act context: if the S.50 report under the Abkari Act discloses an offence exclusively triable by the Sessions Court, the Magistrate must conduct the mandatory S.202(2) enquiry and then commit. |
| Rajkumar Karwal v. Union of India (1990 (2) SCC 409) | Held that an officer invested under a special law with powers analogous to those of a police officer investigating a cognizable offence does not thereby become a "police officer" under S.25 of the Evidence Act; important attribute of police power is also the power to prosecute by filing a report/charge-sheet under S.173 Cr.P.C., and nothing in the special Act showed intention to vest such power in the officers under S.53 of the Act. | The Court used this principle to distinguish the nature of NDPS prosecutions (where prosecution proceeds by complaint by the investigating agency rather than by a S.173 report) and to note limits on the powers of officers under the special Act. |
| A.R. Antulay v. R.S. Nayak (AIR 1954 S.C. 718) | Held that a Court of a Special Judge is a court of original criminal jurisdiction and, except for powers specifically conferred or denied by the statute, will have the powers of a court of original criminal jurisdiction under the Criminal P.C. | The Court relied on this reasoning to support the proposition that a special court (and by parity the Sessions Court acting under transitional S.36D) can be treated as a court of original criminal jurisdiction that may take cognizance under the special statute's provisions. |
| Ajith Kumar v. State (AIR 1961 Cal. 560) | Held that provisions of the Criminal Procedure Code dealing with taking cognizance of offences are not applicable to Special Courts under the implicated special statute; special courts are not confined to methods prescribed by S.190(1) Cr.P.C. and can assume cognizance independently. | The Court cited this decision to support the conclusion that a special court (or a Sessions Court under S.36D) can assume cognizance independently of the usual S.190/S.193 procedures of the Code. |
| Ajith Kumar v. State of W.B. (AIR 1963 S.C. 765) | Explained the general meaning of "cognizance" — the term means to become aware of or to take notice of judicially; taking cognizance does not require any formal action and occurs when a Magistrate applies his mind to the suspected commission of an offence, subject to statutory constraints on materials. | The Court used this ruling to elucidate the meaning of "cognizance" in the context of special courts and to show that statutory provisions can shape when and how judicial mind must operate before cognizance is said to be taken. |
| Chart v. State of U.P. (AIR 1951 S.C. 207) | Authoritatively addressed "cognizance": for S.190(1)(a) a Magistrate must apply his mind to the petition for the purpose of proceeding under the subsequent provisions of the chapter (proceeding under S.200, S.202); applying mind for other purposes (e.g., investigation under S.156(3)) is not taking cognizance for S.190(1)(a). | The Court cited this to distinguish types and modes of taking cognizance and to support the view that the procedure under S.190 and S.193 Cr.P.C. is not necessarily applicable where the special statute vests taking of cognizance in another manner (as under S.36A of the N.D.P.S. Act). |
Court's Reasoning and Analysis
The Division Bench proceeded by identifying two distinct statutory contexts and applied legislative text, prior decisions and the function of special procedural provisions to each.
For the N.D.P.S. Act issue (Crl. Ref. 5/90):
- The Court examined the special statutory scheme of the N.D.P.S. Act: section 36 provides for special courts; section 36D is a transitional provision mandating that, until a special court is constituted, any offence under the Act shall be tried by a Court of Session "notwithstanding anything contained in the Code"; section 37 declares every offence under the Act to be cognizable; and section 36A(i)(d) provides that a special court may take cognizance of the offence upon perusal of the police report or upon a complaint made by an authorised officer without the accused being committed to it for trial.
- The Court referred to the Supreme Court decision in Rajkumar Karwal to explain the prosecutorial and investigatory differences between officers under a special statute and regular police, noting that prosecutions under the N.D.P.S. Act proceed by complaint of the investigating agency rather than a S.173 report under the Code.
- The Court relied on authorities concerning "special courts" (A.R. Antulay and Ajith Kumar) and on the judicial exposition of "cognizance" (Ajith Kumar and Chart) to conclude that where a statute creates or designates a special forum and expressly empowers it to take cognizance, that forum operates as a court of original criminal jurisdiction for the purposes granted by statute, and is not strictly bound by the procedural modes of S.190 and S.193 Cr.P.C.
- The Court further observed that section 4(2) Cr.P.C. subjects procedure to any enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with offences under special enactments and emphasized the N.D.P.S. Act's objective of speedy trial as a policy reason for enabling special courts to take cognizance without committal.
- Conclusion on this point: a Court of Session empowered under S.36D is to be treated as a special court for the transitional period and therefore is competent to exercise the powers under clauses (c) and (d) of sub-section (1) of S.36A, including taking cognizance of offences without committal; procedures under S.190 and S.193 Cr.P.C. are not applicable to such Sessions Courts trying offences under S.36D.
For the Abkari Act issue (Crl. Ref. 3/90):
- The Court noted the content of S.50 of the Abkari Act: an Abkari Inspector is required to forward to the Magistrate a report setting forth the name of the accused, the nature of the offence and the names of persons acquainted with the circumstances, and to send any article necessary to produce; upon receipt the Magistrate "shall enquire into such offence and try the person accused thereof in like manner, as if the complaint had been filed before him as prescribed in the Code of Criminal Procedure, 1898."
- Because the Abkari Act does not create special courts or a procedure equivalent to the N.D.P.S. Act's special-court machinery, the Code's procedure for enquiry and trial applies. The Full Bench decision in Moideenkutty Haji was examined and its holding—that when a complaint discloses a sessions triable offence the Magistrate must conduct the mandatory enquiry under the proviso to S.202(2)—was treated as applicable in the Abkari context.
- The Court distinguished the learned Single Judge's observations in State v. Moidu to the extent that Moidu's remarks concerning complaints by public servants under S.200(a) were not strictly relevant to the specific issue decided in Moidu and therefore were not binding authority for Abkari Act matters governed by S.50.
- Conclusion on this point: where a report under S.50 Abkari Act discloses an offence exclusively triable by the Sessions Court, the Magistrate must conduct the mandatory enquiry under the proviso to S.202(2)—calling upon the complainant to produce all witnesses and examining them on oath—and only thereafter commit the case to the Sessions Court. The Court directed the Sessions Judge to remit the matter to the Magistrate to conduct the mandated enquiry and commit the case in accordance with law.
Holding and Implications
Holding (N.D.P.S. matter — Criminal Reference No. 5/90): The Court held that a Court of Session empowered under section 36D of the N.D.P.S. Act is competent to exercise the powers under clauses (c) and (d) of sub-section (1) of section 36A of the Act — i.e., it shall be treated as a special court during the transitional period and may take cognizance of offences without committal proceedings; the procedure of taking cognizance under sections 190 and 193 Cr.P.C. is not applicable to such Sessions Courts.
Holding (Abkari Act matter — Criminal Reference No. 3/90): The Court held that where a report under section 50 of the Abkari Act discloses an offence exclusively triable by the Sessions Court, the Magistrate must conduct the mandatory enquiry contemplated by the proviso to section 202(2) Cr.P.C. (call the complainant to produce all witnesses and examine them on oath) before committing the case to the Sessions Court; the Magistrate's earlier committal without such enquiry was not proper and must be corrected.
Implications
- Direct effect on parties in Criminal Reference No. 5/90: the Sessions Court (under S.36D) was affirmed as competent to take cognizance and proceed without committal; the ordinary S.190/S.193 modes of taking cognizance under the Code do not bind that Court in the N.D.P.S. transitional context.
- Direct effect on parties in Criminal Reference No. 3/90: the Sessions Judge was directed to transmit the case back to the Magistrate so that the mandatory proviso enquiry under S.202(2) Cr.P.C. is conducted and the case thereafter committed in accordance with the procedure described in Moideenkutty Haji v. Kunhikoya.
- The opinion confines the applicability of State v. Moidu: while Moidu's holding about NDPS procedure stands in the NDPS statutory context, its broader observations about complaints by public servants under S.200(a) Cr.P.C. were not treated as binding in the Abkari Act context governed by S.50; the Court therefore limited the reach of that Single Judge decision.
- The opinion does not purport to lay down a broader new rule beyond the direct statutory contexts addressed; it applied existing authorities and statutory text to resolve the two specific references and disposed of the criminal references as indicated.
Result: The criminal references were disposed of in accordance with the rulings summarized above.
Balakrishnan, J.:— These two criminal references have been referred to the Division Bench, as it was felt that the decision in State v. Moidu, (1990 (2) KLT 275 : 1990 (2) KLJ 202) is in conflict with the decision of the Full Bench reported in Moideenkutty Haji v. Kunhikoya (1987 (1) KLT 635).
2. In criminal reference No. 5/90 the question that arises for consideration is whether in a complaint filed under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) the Magistrate should conduct’ enquiry contemplated under S. 202(2) of the Code of Criminal Procedure (for short the Code) and commit the case to Sessions Court or whether the Sessions Court empowered under S. 36D to try cases under the N.D.P.S Act itself is competent to take cognizance of the offence as if it is a court of original jurisdiction. The learned Single Judge in State v. Moidu (1990 (2) KLT 275 : 1990 (2) KLJ 202) held that in a prosecution for offences punishable under the N.D.P.S Act the Magistrate need not conduct an enquiry under S. 202(2) of the Code before committing the case to the Sessions Court. In Rajkumar Karwal v. Union of India (1990 (2) SCC 409) the Supreme Court held that even if an officer is invested under any special law with powers analogous to those exercised by apolice officer-in-charge of a policestation investigating acognizable offence, hedoes not thereby become a police officer under S. 25 of the Evidence Act. The Court further held:
“The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge-sheet under S. 173 of the Code. There is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under S. 53 of the Act, all the powers of Chapter XII, including the power to submit a report under S. 173 of the Code.”
3. So, in the matter of offence punishable under the Act it is not the report under S. 173 of the Code that is filed, but a complaint by the investigating agency. However, it is to be noted that in the trial of offences under the Act S. 36 of the Act says that there shall be special courts for the trial of the offence under the Act. S. 36D says that until a special court is constituted under S. 36, any offence committed under this Act or after the commencement of the N.D.P.S (Amendment) Act, 1988 shall notwithstanding anything contained in the Code be tried by a Court of Sessions. So, the Court of Session shall exercise the powers of a special court until special court under S. 36 of the Act is constituted. Under S. 37 of the Act it is stated that every offence punishable under the Act shall be cognizable. S. 36A(i)(d) furthers ays that a special court may take cognizance of that offence without the accused being committed to it for trial.
4. Regarding the power of the special court to take cognizance the Supreme Court had occasion to consider the same in A.R Antulay v. R.S Nayak (AIR 1954 S.C 718). The Court held:
“The Court of a Special Judge is a court of original criminal jurisdiction. As a court of original criminal jurisdiction in order to make it functionally oriented some powers were conferred by the statute setting up the Court. Except those specifically conferred and specifically denied, it has to function as a Court of original criminal jurisdiction not being hide bound by the terminological statuts description of Magistrate or a Court of Session. Underthe Code it will enjoy all powers which a court of original jurisdiction enjoys save and except the ones specifically denied.
The Court of a Special Judge, once created by an independent statute, has been brought as a Court of original criminal jurisdiction under the High Court because S. 9 confers on the High Court all the powers conferred by Chapters XXXI and XXXIII of the Criminal P.C 1898 on a High Court as if the Court of Special Judge were a Court of Session trying cases without a jury within the Iocal limits of the jurisdiction of the High Court. Therefore, there is no gainsaying the feet that a new Criminal Court with a name, designation and qualification of the officer eligible to preside over it with powers specified and the particular procedure which it must follow has been set up under the 1952 Act. The Court has to to treated as a Court of original criminal jurisdiction and shall have all the powers as any Court of original Criminal jurisdiction has under the Criminal P.C except those specifically excluded.”
5. In an earlier decision of the Calcutta High Court in Ajith Kumar v. State (AIR 1961 Cal. 560) while considering the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act (2 of 1949) it was held that the provisions of the Criminal Procedure Code taking cognizance of the offences are not applicable to the Special Courts under the Act. The Special Court is therefore not confined to the statutory methods recognised and prescribed under S. 190(1) of the Code. Thespccial court can therefore assume cognizance independently of these sections of the Code.
6. The word ‘cognizance’ has not been defined in the Code. Taking cognizance is a well-known but undefined conception in criminal jurisprudence. Judicial decisions have indicated the character and nature of cognizance in criminal jurispru dence. In Ajith Kumar v. State of W.B (AIR 1963 S.C 765) the Supreme Court observed that:
“The word “cognizance” has no esoteric or mystic significance in criminal law or procedure. It merely means become aware of and when used with reference to a Court or Judge, to take notice of judicially. Taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence. Where the statute prescribes the materials on which alone the judicial mind shall operatebefore any step is taken obviously the statutory requirement must be fulfilled. But-statutory provision apart, there is no set material which must exist before the judicial mind can operate.”
7. In an earlier decision in Chart v. State of U.P (AIR 1951 S.C 207) at page 210 the Supreme Court made an authoritative pronouncement on the term ‘cognizance’. It reads:
“What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under S. 190(1)(a) of the Criminal Procedure Code, he must not only apply his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this chapter-proceeding under S. 200 and thereafter sending it for enquiry and report under S. 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this chapter, but for taking action of some other kind, e.g ordering an investigation under S. 156(3), or issuing a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of the offence.”
8. As regards the power of the special court to take cognizance of an offence the Supreme Courj while considering the provisions of the West Bengal Criminal Law Amendment (Special Courts) Act (21 of 1949)in Ajith Kumar's case held that the special court constituted under the West Bengal Criminal Law Amendment (Special Courts) Act has power to take cognizance of an offence without there being a committal proceedings. That decision is applicable on all force since similar provision is contained in the Act. In S. 36A(i)(d) it is specifically provided that a special court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. So, there cannot be any doubt that the special court is empowered to take cognizance of the offence under the Act without there being a committal proceedings.
9. The central question that arises for consideration is whether the Sessions Judge who is empowered under S. 36D of the Act is entitled to take cognizance of the offence without there being a committal proceedings. S. 36D is a transitional provision and it mandates that until a special court is constituted under S. 36 any offence committed under the Act shall be tried by a Court of Session. Power under S. 36D has been given notwithstanding anything contained in the Code. It may also be noticed that S. 4(2) of the Code specifically states that all offences under any law other than Indian Penal Code shall beinvestigated, enquired into, tried and otherwise dealt with according to the same provisions, 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 it is important to note that the purpose and object of the enactment of the Act is to have a speedy trial of all offences. That is why the special courts are allowed to take cognizance of the offence, without there being a committal proceedings. So, the Court of Session empowered to try the case during the transitional period shall be deemed to be a special court having power under S. 36A(i)(d) of the Act to take cognizance of the police report or upon a complaint made by an officer of the Central or State government authorised in this behalf. S. 193 of the Code has no application as the entire trial is conducted in accordance with the provisions of the Act.
10. So, in Crl. Ref. 5/90 in answer to the reference made by the District Judge we hold that the Court of Session by virtue of the provisions contained in S. 36D of the Act is competent to exercise the power under clauses (c) and (d) of sub-section (1) of S. 36A of the Act, as if itis aspecial court constituted under S. 36 of the Act, and on the 2nd point we hold that the Court of Session empowered under S. 36D of the Act can take cognizance of the offence without there being a committal proceeding and the method of taking cognizance in the manner laid down in Ss. 190 and 193 of the Code is not applicable to the Sessions Court trying offences under S. 36D of the Act.
11. In Criminal Reference No. 3/90 the matter arises under the Abkari Act. A short narration of facts is necessary to understand the case. The Circle Inspector of Excise, Kannur filed a report before the Judicial II Class Magistrate, Kannur alleging that accused committed offence punishable under S. 57 of the Abkari Act. S. 57A is a newly added provisionin the Abkari Act by amendment Act 21/85. It relates to the adulteration of liquor or intoxicating drug with noxious substance. The offence punishable under S. 57A is an offence exclusively triable by a Court of Session. As the offence disclosed in the report was exclusively triable by a Court of Session, the Magistrate committed the case to the Sessions Court without conducting an enquiry as contemplated under S. 202(2) of the Code. The Sessions Judge has referred the matter to this Court to decide whether the order of the Magistrate in committing the case instituted upon a complaint in respect of an offence exclusively triable by a court of Session, without conducting an enquiry under S. 202(2) of the Code, is legal and proper.
12. In Moideenkutty Haji v. Kunhikoya (1987 (1) KLT 635) the Full Bench held that a Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under S. 192 Cr.P.C has to conduct an enquiry where it appears to the Magistrate that the offence complained of is exclusively triable by a Court of Session. It was held that it is mandatory under the proviso to sub-section (2) of S. 202 that the Magistrate shall call upon the complaint to produce all his witnesses and examine them on oath. The Full Bench elaborately considered the question and held:
“It is evident that the legislature intended two different type:, of enquiries, a discretionary enquiry in ordinary complaint cases and a mandatory enquiry in complaint cases under S. 202. In the discretionary enquiry the Magistrate can either enquire into the case himself or direct an investigation to be made by a police officer or such other person as he thinks fit. But in a mandatory enquiry in a complaint case that discretion is taken away by proviso (a) to S. 202(1). The Magistrate will have to conduct the enquiry himself and he cannot order investigation. It is true that said discretion is absent in another category of cases coming under proviso. (b) to S. 202(1) also. But we are not concerned with such cases here. In a discretionary enquiry inordinary complaint cases S. 202(2)-gives the option to the Magistrate to take evidence of witnesses on oath or not as he thinks fit. That means he can even record a summary of the statements of witnesses. But ina mandatory enquiry in a complaint case that discretion is not there and the proviso to sub-s. (2) says that he shall call upon the complainant to produce all his witnesses and examine them on oath.”
13. Distinguishing the above decision the learned single Judge in State v. Moidu (1990 (2) KLT 275 : 1990 (2) KLJ 202) held that the procedure prescribed under S. 202 of the Code must be confirmed to private complaints disclosing sessions offence and not complaints filed by a public servant acting or purporting to act in discharge of his official duties coming under clause (a) of S. 200 of the Code. The learned Single Judgewas of the view that in the case of complaint filed by Superintendent of Central Excise Special Preventive Unit or officers like that there would be an investigation and enquiry into the alleged offence and the contraband at articles, if any, would be seized under mahazar duly attested by person and all other procedural formalities such as, questioning of the accused, examining the article by the chemical examiner etc. would be done during the investigation stage and therefore the accused cannot complain that he is prejudiced due to dearth of material for a fair and adequate defence and the learned Single Judge on these premises in paragraph 15 at page 210 held:
“In my view, the Full Bench decision does not apply to a complaint laid by an authorised officer under the Act on the basis of materials which were collected during investigation/enquiryinto the offence. The Full Bench decision must be understood in the context in which it was rendered and held applicable only to private complaint cases and not to complaint cases filed by a public servant acting under S. 190(1), where there had been an enquiry prior to the complaint and materials had been collected for prosecution.”
14. But it may be noticed that under the Abkari Act for filing a report under S. 50 it is not necessary that there shall be an investigation an ‘nquiry regarding the offence. S. 50 only says that the Abkari Inspector shall forward to the Magistrate a report setting forth the name of such person and the nature of the offence with which he is charged and the name of the person who appear to be acquainted with the circumstances of the case and shall send to the said Magistrate any article which it may be necessary to produce before him. S. 50 further says that upon receipt of such report the Magistrate shall enquire into such offence and try the person accused thereof in like manner, as if the complaint had been filed before him as prescribed inthe Code of Criminal Procedure, 1898. Unlike the N.D.P.S Act, no provisions have been made in the Abkari Act for enquiry and trial of offence under Abkari Act. From S. 50 of the Abkari Act it is clear that the Abkari Inspector need only file a report as indicated therein disclosing the necessary details regarding the nature of the offence and the names of the persons who appeared to be acquainted with the circumstances of the case. Itis for the Magistrate to enquire into such offence and try the same in accordance with the provisions of the Code. The procedure to be adopted for the enquiry and trial of the case is as contemplated under the provisions of the Code of Criminal Procedure. Going by the decision of the Full Bench reported in Moideenkutty's case it is mandatory that the Magistrate shall conduct an enquiry under the proviso to S. 202(2) Cr.P.C and the Magistrate shall call upon the complainant to produce all his witnesses and shall examine them on oath and only after complying with this mandatory enquiry the Magistrate can commit the case to the Sessions Court. No specific procedure for enquiry or trial is prescribed under the Abkari Act.
15. In fact in the decision reported in State v. Moidu (1990 (2) KLT 275 : 1990 (2) KLJ 202) the question that came up for consideration was whether there shall be an enquiry contemplated under the proviso to S. 202(2) of the Code in a case triable by the Sessions Court under S. 36D of the N.D.P.S Act. So, whatever stated by the learned Judge so far as it relate to the questionof complaints filed by other public servants before the Magistrate under S. 200(a) Cr.P.C were not precisely relevant to the issues in that case, and made only as part of the general reasoning.
16. So, we hold that the decision of the learned Single Judge reported in State v. Moidu (1990 (2) KLT 275 : 1990 (2) KLJ 202) is not a binding authority so far as it relater to the complaint report made by the public servant under S. 200(a) of the Code of Criminal Procedure as per the provisions of the Abkari Act. We hold that if the complaint/report filed under S. 50 of the Abkari Act discloses an offence exclusively triable by the Sessions Court, the Magistrate shall conduct the mandatory enquiry contemplated under proviso to S. 202(2) of the Code by calling upon the complainant to produce all the witnesses and examine them on oath. Thereafter the case shall be committed to the Sessions Court. The procedure of committal as explained in Moideenkutty Haji v. Kunhikoya (1987 (1) KLT 635) is to be followed in such cases. Therefore, we direct the Sessions Judge to transmit the case to the Magistrate concerned to conduct enquiry under S. 202(2) Cr.P.C and commit the case to the Sessions Court, in accordance with law. The criminal references are disposed of as slated above.
Alert