Balakrishnan Nair, J.

1. The writ petitioner is the appellant. The point that arises for decision in this appeal is concerning the construction to be placed on clause (i) of sub-rule (3) of Rule 5 of the Kerala Abkari Shops Disposal Rules, 2002 (hereinafter referred to as "the Rules").

2. The brief facts of the case are the following: The appellant was the licensee of T.S.No.22/2007-08 of Idukki Excise Range. It was renewed for the years 2008-09 and 2009- 10 also. In the meantime, a crime was registered against him as Crime No.7/2008 by the Excise Officials, alleging offences under Sections 55(a) and 55(i) of the Kerala Abkari Act. The final report in that case has been filed before the Judicial First Class Magistrate's Court, Idukki. The learned Magistrate took cognizance of the offence and issued summons to the appellant. The appellant appeared and after hearing him, the case has been committed, as per C.P.No.35/2009 to the Sessions Court, Thodupuzha for trial. In view of the above developments, the appellant apprehended that he may be disqualified from participating in the auction, invoking the provisions under Rule 5 (3) of the Rules and therefore, the Writ Petition was filed, seeking the following reliefs:

"(i) declare that the petitioner is entitled to participate in the auction for conduct of toddy shop included in the Group in which Toddy Shop No.22/2009-2010 (Cheruthony) of the Idukki Excise Range even though CR No.7/08 of the Idukki Excise Range has been registered.

(ii) issue a writ in the nature of mandamus or any other writ, direction or orders commanding the respondents to permit the petitioner to participate in the auction and to extend the privilege to the petitioner for the conduct of the Toddy Shops included in the Group consisting of the Toddy Shop No.22/2009-10 (Cheruthony) of the Idukki Excise Range for the year 2010-11.

"It was contended before the learned Single Judge that in view of Rule 5(3)(i) of the Rules, the appellant/writ petitioner can be made ineligible to participate in the auction, if only the Sessions Court has framed charge against him and the trial has commenced. Only on commencement of the trial after the framing of the charge, it can be said that he is charged with an offence and prosecution proceedings are pending against him. But, the learned Single Judge, relying on the decision of this Court in Yesudas v. S.I. of Police [2008(1) KLT 245], took the view that after the lodging of the F.I.R before the court and during the period of investigation by the police, it can be held that prosecution is pending against the appellant. In that view of the matter, the Writ Petition was dismissed in limine. Hence this appeal.

3. We heard the learned counsel for the appellant and also the learned senior Government Pleader for the respondents. In view of the proceedings pending before the learned Sessions Judge, the appellant is not claiming preference under Section 5 (1)(a) of the Rules. But, he claims, he is eligible to participate in the auction, if a proper construction is placed on clause (i) of sub-rule (3) of Rule 5 of the Rules. According to him, he can be said to be charged with an offence only when the Sessions Court frames charge against him after preliminary hearing. The possibility of discharge of the accused by the learned Sessions Judge cannot be ruled out. In this case, the charge is yet to be framed. Only after framing the charge, it can be said that prosecution proceedings are pending against him. In view of the abovelegal position, the appellant submits, the disqualification under sub-rule (3) of Rule 5 of the Rules is not attracted in this case. The appellant relied on the decision of a learned Single Judge of this Court in Vijayan v. Excise Commissioner [2002(3)KLT 646], in support of his submissions.

4. The learned senior Government Pleader, on the other hand, submitted that the

decision of this Court in Yesudas (supra) lays down the correct legal position. Further