IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 Crl.MC.No. 2235 of 2009() ----------------------------------- CRRP.51/2005 of ADDL. DISTRICT COURT, MANJERI .................... PETITIONER/RESPONDENT/ACCUSED -------------------------------------------------------- ABDUL NAZAR.K., S/O.AHMED KUTTY, KADUVANNI HOUSE, PALAPPURAM, KOTTAKKAL. BY ADV. MR.K.SHIBILI NAHA SMT.A.LOWSY RESPONDENT/STATE & DEFACTO COMPLAINANT ------------------------------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. A.YAHIYA, S/O.KUNCHUMOHAMMED, ATTEERITHODI VEEDU, CHANKUVETTY, P.O.KOTTAKKAL, MALAPPURAM DISTRICT. R1 BY PUBLIC PROSECUTOR MR.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2235 of 2009 -------------------------- ORDER Petitioner is the accused in C.C.No.46/2002 on the file of Judicial First Class Magistrate's Court, Malappuram. Prosecution case is that on 5.12.2001 at about 8.45 p.m. petitioner voluntarily caused hurt to the second respondent, Yahia, who was examined as PW1 before the learned Magistrate, while he was sitting at his shop and thereby committed offences under Sections 448 and 323 of Indian Penal Code. Petitioner pleaded not guilty. Under Annexure-A judgment learned Magistrate acquitted him under Section 255(1) of Code of Criminal Procedure. Defacto complainant challenged the order of acquittal before Sessions Court, Manjeri in Crl.R.P.No.51/2005. Learned Sessions Judge, under Annexure-B judgment, set aside the order of acquittal and remanded the case back to the trial court. This petition is filed under CRMC 2235/09 2 Section 482 of Code of Criminal Procedure to quash Annexure-B order of the Sessions Judge. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner vehemently argued that learned Sessions Judge was not justified in interfering with the order of acquittal. It is argued that learned Sessions Judge re-appreciated the evidence of PW1 and thereafter remanded the case back to the Magistrate finding that it requires re-consideration and there is no case that findings were without appreciation of evidence or perverse and therefore, the order of remand is not sustainable. Learned counsel submitted that in the light of the evidence adduced, petitioner can only be acquitted and therefore, learned Sessions Judge should not have interfered with the order of acquittal. 4. On going through Annexure-A judgment, it is absolutely clear that learned Magistrate failed to CRMC 2235/09 3 appreciate the evidence properly. In fact, appreciation of evidence is perverse. Learned Magistrate summarised the evidence of PWs 1 to 8 in paragraphs 5 to 13. The reasons for acquittal of the petitioner is shown in paragraphs 14 and 15. The reason stated by the Magistrate is not that evidence of PW1 is not believable, but that evidence of the Investigating Officer shows that PW1 was not beaten on his face with his hand and he stated that such a statement was not given by PW1 when his statement was recorded under Section 161 of Code of Criminal Procedure. At the same time, judgment shows that PW8 asserted that statement of the injured was that he was hit with a soda bottle on his chest. That exactly was the case spoken to by PW1. Therefore, learned Magistrate was not justified in disbelieving the prosecution case or the evidence of PW1 for the reason that he had not disclosed to the Investigating Officer that he was beaten on his face with hand. When he has no such CRMC 2235/09 4 case, in the light of perverse appreciation of evidence, learned Sessions Judge was justified in setting aside the order of acquittal and remanding the case back to the trial court. In such circumstances, I find no reason to interfere with Annexure-B order. Learned counsel appearing for the petitioner then submitted that the case is now posted to 13.7.2009 and petitioner may be granted further time to appear. Learned Magistrate is directed to adjourn the trial by two weeks. Magistrate is also directed to dispose the case on the evidence untrammeled by the observations in Annexure-B order or in this order. 9th July, 2009 (M.Sasidharan Nambiar, Judge) tkv