IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 Crl.MC.No. 739 of 2010(B) ------------------------------------- [SC.NOS. 1943/2006 & 870/2005 OF ASSISTANT SESSIONS COURT, NEYYATTINKARA] .................... PETITIONER/2ND ACCUSED: ----------------------------------------- ANIL KUMAR, S/O.MUTHUSWAMY NADAR KUNNATHUVILA PUTHENVEEDU UDIYANKULANGARA, KEEZHKOLLA DESOM CHENKAL VILLAGE, NEYYATTINKARA. BY ADV. MR.G.SUDHEER (KARAKONAM). RESPONDENT/ COMPLAINANT: ---------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.739 OF 2010 ------------------------------------------ Dated 23rd March 2010 O R D E R Petitioner is the second accused in crime No.302/2002 of Parassala police station. First accused is Sahadevan, his brother Sahadevan. Judicial First Class Magistrate-II, Neyyattinkara took cognizance of the offence under Section 308 read with Section 34 of Indian Penal Code against the two accused on Annexure-A final report as C.P.195/2002. As seen from committal order dated 4/11/2004, learned Magistrate has wrongly shown petitioner, who is actually second accused, as the first accused and Sahadevan who is the second accused as the first accused. As Sahadevan was absconding, case as against Crmc 739/10 2 him was split up and re-filed as C.P.239/2004. Case as against the petitioner was committed in C.P.195/2002 to Sessions court as per order dated 4/11/2004. Learned Sessions Judge took the case on file as S.C.870/2005 and made it over to Assistant Sessions court, Neyyattinkara for trial and disposal. It is pending before Assistant Sessions court, Neyyattinkara. When the accused in the re-filed case C.P.239/2004, who could only be Sahadevan the first accused appeared, as per order dated 31/7/2006 the case as against him was also committed to Sessions court. Learned Sessions Judge took cognizance of the case as against the original first accused as S.C.1943/2006. It was also made over to Assistant Sessions court, Neyyattinkara for trial and disposal. But while committing the case as against first accused as per order dated 31/7/2006, Judicial First Class Crmc 739/10 3 Magistrate, Neyyattinkara committed a mistake in showing the original second accused in the case, against whom the case has already been committed as per committal order in C.P.195/2002, as the accused in C.P.239/2004. As is clear from the order of committal in C.P.195/2002 it was the case as against Sahadevan, which was split up and re-filed as C.P.239/2004. Evidently, as the committal order in C.P.195/2002 shows that case against second accused is re-filed and as per final report second accused is the petitioner and not Sahadevan, the committal order in C.P.239/2004 wrongly showed petitioner as the accused, instead of Sahadevan. Consequently, learned Assistant Sessions Judge, when the original first accused appeared, the case was committed in C.P.239/2004. But as that accused did not appear, learned Assistant Sessions Judge issued Crmc 739/10 4 non bailable warrant in S.C.1943/2006. But as name of the accused was wrongly shown as Anilkumar (petitioner), instead of Sahadevan, proceedings under Sections 82 and 83 of Code of Criminal Procedure were initiated against the petitioner and not Sahadevan. In such circumstances, this petition is filed under Section 482 of Code of Criminal Procedure to quash the proceedings in S.C.1943/2006 on the file of Assistant Sessions court, Neyyattinkara as against the petitioner. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. A report was called for from the Assistant Sessions Judge, Neyyattinkara. Order of committal in C.P.195/2002 and C.P.239/2004 produced by the petitioner, along with report submitted by the Assistant Sessions Judge, Crmc 739/10 5 Neyyattinkara, establish that when the case as against the petitioner was committed in C.P.195/2002, case against Sahadevan the first accused was re-filed as C.P.239/2004. That case was later committed to the Sessions court as per order dated 31/7/2006 in C.P.239/2004 and taken cognizance by the Sessions court as S.C.1943/2006 and made it over to Assistant Sessions court, Neyyattinkara for trial and disposal. It is only due to the mistake occurred in the committal order the confusion arose. The accused shown in C.P.239/2004 is Anilkumar, the petitioner herein. It can only be Sahadevan, the first accused. It is due to that mistake proceedings were initiated by the learned Assistant Sessions Judge against the petitioner in S.C.1943/2006 though petitioner was even at that time facing trial in S.C.870/2005. Crmc 739/10 6 In such circumstances, petition is allowed. Assistant Sessions Judge, Neyyattinkara is directed to drop the proceedings against the petitioner Anilkumar in S.C.1943/2006. It is made clear that the said case committed as per order in C.P.239/2004 is against first accused Sahadevn and not the petitioner. Learned Assistant Sessions Judge is directed to issue summons to said Sahadevan for his appearance and proceed only with S.C.1943/2006 against Sahadevan. Case as against petitioner is to be proceeded in S.C.870/2005. As both accused are under one final report, learned Assistant Sessions Judge is directed to club both the cases together and proceed in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.