IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 Crl.MC.No. 3886 of 2009() ------------------------- CP.154/2009 of JUDL.FIRST CLASS MAGISTRATE'S COURT, KASARAGOD .................... PETITIONER(S): ACCUSED: -------------------------------------------- M.ACHUTHAN, AGED 37 YEARS, S/O.LATE P.NARAYANAN NAIR, ANINJHA, KOLIYADUKAM, KASARAGOD TALUK AND DISTRICT. BY ADV. MR.S.JIJI RESPONDENT(S): STATE, DEFACTO COMPLAINANT: ------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHYAMALA, AGED 29 YEARS, D/O.K.CHATHUKUTTY NAIR, CHERIPADY, MUNNAD VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. R1 BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ---------------------------------------- Crl.M.C.No.3886 of 2009 ---------------------------------------- Dated this the 16th day of December, 2009 ORDER Petitioner is the accused in C.P.154/2009 on the file of Judicial First Class Magistrate Court, Kasaragod as well as C.C.838/2007 pending before Chief Judicial Magistrate Court, Kasaragod. Second respondent is his wife and the complainant in C.P.154/2009 and the defacto complainant in C.C.838/2007. Crime 430/2007 was registered for the offence under Section 498A and 307 of Indian Penal Code and after investigation Sub Inspector of Police submitted Annexure-2 final report based on which the cognizance of the offence under Section 498A was taken by the learned Chief Judicial Magistrate in C.C.838/2007. Aggrieved by the failure of the police to submit a charge for the offence under Section 307 of I.P.C. second respondent filed Annexure-A3 complaint against the petitioner before the Judicial First Class Magistrate, Kasaragod. The learned Magistrate after conducting an inquiry under Section 202 of Criminal Procedure Code took cognizance of the offences under Section 498 A and 2 307 of Indian Penal Code as C.P.154/2009. This petition is filed under Section 482 Cr.P.C. to quash the cognizance taken in C.P.154/2009. 2. Learned counsel appearing for petitioner submitted that petitioner has to stand trial in two cases, one before the Chief Judicial Magistrate Court, Kasaragod for the offence under Section 498A and the other before the Judicial First Class Magistrate Court, Kasaragod and thereafter before the Sessions Court, for offence punishable under Sections 498A and 307 of IPC and in such circumstances cognizance taken on Annexure-A3 complaint is to be quashed. 3. The trial in C.C.838/2007 is before the Chief Judicial Magistrate Court, Kasaragod and it is for the offence under Section 498A of the Cr.P.C. Recording of the evidence is yet to start. True, petitioner is also to stand for trial, for the offence under Section 498A along with Section 307 IPC in C.P.154/2009 and after it committal before the Sessions Court. When the case is committed to Sessions Court, prosecution can only conducted by the Public Prosecutor. On committal, learned Sessions Judge necessarily has to try the Sessions case as well as the case now 3 pending before the Chief Judicial Magistrate Court as once the case is committed by the Magistrate it is for the Chief Judicial Magistrate to commit the case to Sessions Court though offence is not exclusively triable by the Sessions Court as it is a matter to be tried by learned Sessions Judge, under Section 323 of Code of Criminal Procedure. 4. With liberty to seek a committal of C.C.838/2007, petition is disposed. The Chief Judicial Magistrate, Kasaragod is directed not to proceed with recording evidence, in view of the committal warranted. M.SASIDHARAN NAMBIAR, JUDGE cms