IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 CRL.REF.No. 10 of 2010() ------------------------ SC.173/2007 of ADDL.SESSIONS COURT (ADHOC)-I, THALASSERY .................... SUO - MOTU RESPONDENT(S): ----------------------------- 1. SIJU, S/O.GOVINDAN, AVIDATHU HOUSE, MANIPPARA COLONY, NULLIAD AMSOM. 2. RAVI, S/O.KORAN, MUNDAYADAN HOUSE, MANIPPARA COLONY, NUCHIAD AMSOM. 3. STATE OF KERALA R3 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD THIS CRIMINAL REFERENCE HAVING BEEN FINALLY HEARD ON 26/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ------------------------- Crl. Ref. No.10 of 2010 -------------------------- Dated this the 26th October, 2010 O R D E R As against two accused, Judicial First Class Magistrate, Mattannur had taken cogniznce for the offence under Section 55 (a) & (g) of Kerala Abkari Act in C.P.82/2006. The second accused Ravi was absconding. Learned Magistrate therefore split up the case against second accused, refiled it as C.P. 26/007 and committed the case against the first accused to Sessions Court, Thalassery. Learned Sessions Judge took the case on file as SC 173/2007. It was made over to Additional Sessions Court, Thalassery. Without taking note of the fact that the case against second accused was not committed, learned Sessions Judge inadvertently showed the name of the second accused also. Consequently when the first accused was tried, name of second accused was also shown as co- accused. By judgment dated 20.8.2007, learned Additional Sessions Judge after trial found the accused not-guilty and acquitted him. As the name of the second accused was also shown, learned Additional Sessions Judge without taking note of the fact that the case against the second accused Crl. Ref. No.10 of 2010 2 was not committed and he did not appear or defend the case stated in the judgment that both the accused are acquitted. The split up case C.P. 26/2007 is pending before Judicial First Class Magistrate Court, Mattannur . It was subsequently removed to the register of long pending cases. Finding that by the judgment in SC 173/2007 second accused was also acquitted, the fact was brought to the notice of the Sessions Judge. Learned Sessions Judge after getting a report from Additional Sessions Judge and Chief Judicial Magistrate addressed this Court to drop the proceedings against the second accused. Hence suo motu proceedings were initiated. 2. Though notice was served on the second accused he did no turn up. 3. Learned Public Prosecutor was heard. 4. Though the judgment in SC 173/2007 shows that both the accused were acquitted, when the case against second accused was not committed to the Sessions Court at all and the second accused did not appear before the Sessions Court, learned Sessions Judge has no jurisdiction Crl. Ref. No.10 of 2010 3 to take cognizance against the second accused or to try him or to acquit him. Therefore, the order of acquittal as against second accused in SC 173/2007 is clearly illegal and it can only be treated as nonest. When learned Magistrate committed the case as against the first accused in C.P. 82/2006 and as the case against the second accused was split up as CC 26/007, that case cannot be dropped as sought for based on the order of acquittal in SC 173/2007. The reference is answered holding that the order of acquittal of the second accused in SC 173/2007 is illegal and is to be treated as nonest. Judicial Magistrate of the First Class, Mattannur to commit the case against the second accused, as and when his presence is procured. It is for the learned Magistrate to take sufficient steps to procure the second accused and thereafter commit the case to the Sessions Court. M.SASIDHARAN NAMBIAR JUDGE ma