VISWANATHAN Vs. AKTHETHARA PANCHAYAT
HIGH COURT OF KERALA
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(1.) The petitioner was convicted by the Honorary First Class Magistrate, Palghat in Summary Case No. 187 of 1966 for an offence under S.96 of the Kerala Panchayats Act, 1960 read with S.132 thereof and sentenced to pay a fine of Rs. 75/-and in default to suffer simple imprisonment for six weeks. The prosecution was for conducting a tea-shop without taking out a licence as required by the Act. He was also directed by the learned Magistrate to pay the licence fee of Rs. 11.25, which he was found liable to pay. The sentence is not appealable; and, therefore, the petitioner has come before this Court in revision.
(2.) The petitioner must succeed in this case, as the proceedings conducted before the learned Magistrate must be quashed on a very short ground, namely, the learned Magistrate who tried the case has no jurisdiction to entertain the complaint. R.3 of the Kerala Panchayats (Trial of Offences by Magistrates) Rules, 1964 provides as follows:
"All offences against the Act or the rules or bye laws framed thereunder shall be tried by a Magistrate of the Second Class."
The Supreme Court in State of U.P. v. Sabir Ali ( AIR 1964 SC 1673 ) had occasion to consider a similar question with regard to the provision contained in S.15(1) of the U. P. Private Forests Act, 1948. Their Lordships held that even though a First Class Magistrate has got the power of a Second Class Magistrate under the Crl. P. C.. the provision of the Section was clear and imperative, and the case was not entertainable by a First Class Magistrate. For the same reason, it must follow that the Honorary First Class Magistrate who entertained this complaint was not competent to try this case.
(3.) In the result, I set aside the judgment of the court below, acquit the petitioner of the offence charged against him, and direct that the fine, if any, recovered from him should be refunded to him.;
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