IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 Crl.MC.No. 848 of 2008 ------------------------ AGAINST THE ORDER DATED 11/02/2008 IN CRMP.119/2008 IN SC.346/2004 of ADDL. SESSIONS COURT, VADAKARA .................... PETITIONER: ACCUSED ------------------- 1. RAVEENDRAN, S/O.GOPALAN, KOTTAPARAKKAL HOUSE, THIRUVALLUR. 2. SAJEEVAN, S/O.GOPALAN, KOTTAPARAKKAL HOUSE, THIRUVALLUR. 3. VINODAN, S/O.GOPALAN, DO. DO. 4. BABU @ ASOKAN, S/O.KUNHIRAMAN, PENAKKADAVATHU, THIRUVALLUR. 5. SURENDRAN, S/O.KUNHIRAMAN, PENAKKADAVATHU, THIRUVALLUR. BY ADV. SRI.R.PARTHASARATHY RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY SHO VATAKARA POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. PUZHAKKARA MUHAMMED THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C.No. 848 of 2008 = = = = = = = = = = = = = = Dated this the 28th day of February, 2008 ORDER Petitioners, who are the accused in S.C.No.346/2004 filed Crl.M.P.No.119/2008 before the Additional Sessions Judge, Vadakara for an order to treat the evidence tendered by the witnesses in the trial before the Judicial First Class Magistrate Court, Vdakara in C.C.No.447/2001 as previous statements for the purpose of contradiction under Section 145 of the Evidence Act. The said petition was dismissed by the Additional Sessions Judge as per Annexure A-2 order dated 11-2-2008. 2. To appreciate the factual background, it may be necessary to advert to some more facts. S.C.No. 346/2004 and S.C.No.429/2001 pending before the Additional Sessions Court, Vadakara constituted a case and counter case. S.C.No.346/2004 was originally pending before the Judicial First Class Magistrate Court, Vadakara as C.C.No.447/2001. The offences in CRMC 848/2008 -2- C.C.No.447/2001are not exclusively triable by a court of Sessions. But since this was the main case of which S.C.No.429/2001 pending before the Additional Sessions Court, Vadakara was a counter case, this Court was moved for a transfer of C.C.NO.447/2001 pending before the Judicial First Class Magistrate Court, Vadakara to the Additional Sessions Court, Vadakara to be tried in quick succession along with C.C.No.429/2001. Actually the request made for transfer of the case was misconceived. The proper remedy was either to move this Court for an order of committal under Section 407(1)(iii) Cr.P.C. or to seek a direction to the Magistrate to commit the case under Section 323 Cr.P.C. That does not appear to have been done. By that time, the trial in C.C.No.447/2001 before the Judicial First Class Magistrate Court, Vadakara was over and what remained was only pronouncing the judgment. It was at that stage that this Court ordered a transfer of C.C.case to the Additional Sessions Court, Vadakara. After the transfer of C.C.No. 447/2001, the case was re-registered as S.C.No.346/2004 before the Additional Sessions Court, Vadakara. The Additional Sessions Court on noticing that the trial in C.C.No.447/2001 was already CRMC 848/2008 -3- over before the Judicial First Class Magistrate Court, Vadakara sought a clarification from this Court as to whether a de novo trial is necessary or whether the trial already conducted before the JFCM, Vadakara was sufficient in S.C.No.346/2004. This Court as per Annexure-A1 order dated 18-9-2007 clarified that the learned Additional Sessions Judge will have to conduct a de novo trial and that the evidence adduced before the magistrate cannot be taken into consideration. It was thereafter that the petitioners who are the accused in S.C.No.346/2004 filed the present application before the Additional Sessions Court. 3. The reason stated by the Additional Sessions Judge for rejecting the application was that this Court while clarifying the position as per order dated 18-9-2007 had observed that the evidence adduced before the Magistrate court cannot be taken into consideration. That observation was made only for the purpose of clarifying that the Additional Sessions Judge will have to conduct a de novo trial and that trial before the Magistrate's court will not be sufficient. But that does not mean that the statements of witnesses examined in C.C.No.447/2001 before the J.F.C.M. Vadakara would get effaced. Those statements are previous CRMC 848/2008 -4- statements which can be taken full advantage of by the accused during the trial of S.C.No.346/2004 for the purpose of contradiction under Section 145 of the Evidence Act. Those statements can also be used for the purpose of corroboration under Section 157 of the Evidence Act. Hence, Annexure-A2 order is set aside and it is clarified that the petitioners can use the statements of the witnesses examined in C.C.No.447/2001 for the purpose of confronting those witnesses with their previous statements. This Crl.M.C.is disposed of accordingly. V. RAMKUMAR, JUDGE ks.