IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 Crl.MC.No. 2095 of 2010() -------------------- SC.156/2008 OF IIND ADDITIONAL SESSIONS SPECIAL COURT (NDPS ACT CASES), THODUPUZHA CRIME NO. 367/04 OF KATTAPPANA POLICE STATION, IDUKKI ...................................................................... PETITIONER / DEFACTO COMPLAINANT : ------------------------------------------------------- SOMAN NAIR, AGED 55 YEARS, S/O. KUTTAPPAN NAIR, USHUS, NEAR MARUTHI JUNCTION, KUTHATTUKULAM VILLAGE, MUVATTUPUZHA, ERNAKULAM. BY ADV. SRI.S.RAJEEV RESPONDENTS / ACCUSED : --------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO. 367/2004 OF KATTAPPANA POLICE STATION, IDUKKI DISTRICT) 2. RAJI, AGED 26 YEARS, S/O. VARGHESE, VENGAPPALLIL HOUE, VELLAYAMKUDY, KATTAPPANA VILLAGE. 3. BIJU, AGED 30 YEARS, S/O. VASU, KONNOMPURATH HOUSE, VELLAYAMKUDY, KATTAPPANA VILLAGE. 4. MOHANAN, AGED 32 YEARS, S/O. KUMARAN, VETTIKOMBIL HOUSE, VELLAYAMKUDY, KATTAPPANA VILLAGE. 5. JAMES, AGED 56 YEARS, S/O. JOSEPH, KOODAPPUZHA HOUSE, VELLAYAMKUDY, KATTAPPANA VILLAGE. R1 BY PUBLIC PROSECUTOR SRI. P.A. SALIM R2 TO R4 BY ADV.SRI.GRASHIOUS KURIAKOSE THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 2095 OF 2010 =========================== Dated this the 14th day of September,2010 ORDER The de facto complainant in S.C.156/2008 on the file of II Additional Sessions Court, Thodupuzha filed this petition under section 482 of the Code of Criminal Procedure to quash Annexure 8 order passed by the learned Sessions Judge under section 228 of the Code of Criminal Procedure. Based on the first information furnished by petitioner, the injured, Crime 367/2004 of Kattappana Police Station was registered against three accused under section 332 read with section 34 of Indian Penal Code. After completing the investigation, Annexure 2 final report was submitted against one accused alleging that he committed the offence under section 332 of Indian Penal Code. Petitioner then filed a private complaint alleging that Crl.M.C.2095/2010 2 all the accused committed the offence under section 333 read with section 34 of Indian Penal Code. Learned Magistrate sent Annexure 3 complaint for investigation under section 156(3) of the Code of Criminal Procedure. On receiving the private complaint for investigation, the Investigating Officer sought permission of the learned Magistrate for investigation of Crime 367/2004 further as provided under section 173(8) of Code of Criminal Procedure. After completing the investigation, Annexure 5 final report was submitted in Crime 367/2004 alleging that all the four accused committed the offences under sections 333 and 294 (b) read with section 34 of Indian Penal Code. In view of the final report, a report was submitted in Annexure 4 F.I.R dropping the case. Learned Magistrate committed the case to the Sessions Court in C.P.5/2008. On receipt of the records and appearance of the accused, learned Sessions Judge heard the Public Prosecutor and the defence counsel as provided under section 227 of the Code of Criminal Procedure. By Annexure 8 order, learned Crl.M.C.2095/2010 3 Sessions Judge deleted the offence under section 333 of Indian Penal Code finding that the materials produced along with the final report did not establish grievous hurt as provided under section 320 of Indian Penal code and therefore transferred th case for trial to Judicial First Class Magistrate's Court, Kattappana for framing proper charge and for disposal. The order is challenged contending that Annexure 8 order is illegal. 2. Learned counsel appearing for the petitioner, respondents 2 to 4 and learned Public Prosecutor were heard. 3.Section 227 of the Code of Criminal Procedure provides for discharge and Section 228 of Code of Criminal Procedure for framing charge. Under sub section (1) of Section 228 if, after consideration of the matters as provided under section 227 of Code of Criminal procedure, Sessions Judge is of the opinion that there is ground for presuming that the accused has committed an offence which is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by Crl.M.C.2095/2010 4 order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the First Class and direct the accused to appear before that court on such date, as he deems fit and thereupon the Magistrate has to try the accused for the offence in accordance with the procedure for trial of warrant cases instituted on a police report. Learned Sessions Judge heard the prosecutor and the defence counsel as provided under section 227 of Code of Criminal Procedure. On such hearing, the learned Sessions Judge found that though there are grounds to presume that all the accused committed the offence, the offence committed is not exclusively triable by the Sessions Court and therefore transferred the case to the Sessions Court. Even if the learned Sessions Judge finds that the offence committed is not exclusively triable by the court of sessions and therefore the case is to be transferred for trial to the Chief Judicial Magistrate or Magistrate of the First Class, the Sessions Judge has to frame a charge, though the charge is not to Crl.M.C.2095/2010 5 be read over to the accused and his plea recorded. By Annexure 8 order though the learned Sessions Judge found that an offence exclusively triable by the Sessions Court was not committed and therefore decided to transfer the case, learned Sessions Judge has not framed the charge for the offence for which the accused is to be tried. To that extent, Annexure 8 order is improper. 4. The argument of the learned counsel appearing for the petitioner is that learned Sessions Judge was not justified in finding that an offence under section 333 of Indian Penal Code is not attracted and only an offence under section 332 of Indian Penal Code is attracted. Section 333 of Indian Penal Code provides that whoever voluntarily causes grievous hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty as such Crl.M.C.2095/2010 6 public servant, shall be punished as provided thereunder. Therefore in order to frame a charge for an offence under section 333 of Indian Penal Code, the prosecution must prima facie show that the accused voluntarily caused grievous hurt to petitioner, the injured de facto complainant and he was a public servant discharging his duty at the time when the incident occurred. Learned Sessions Judge on the materials found that though hurt was caused and petitioner was a public servant, no grievous hurt was caused and therefore Section 333 of Indian Penal Code is not attracted. 5. Grievous hurt is defined under section 320 of Indian Penal Code. Under clause thirdly, permanent privation of the hearing of either ear is a grievous hurt. An offence under section 333 IPC is alleged on the basis that by the act of the accused, permanent privation of the hearing of the left ear of the petitioner was caused. Learned Sessions Judge on going through the Case Diary and the final report the materials placed, found that the treatment certificate was obtained for the Crl.M.C.2095/2010 7 purpose of producing it before the Department for getting light duty to the petitioner and it shows that hearing loss was minimal and therefore an offence under section 320 of Indian Penal Code is not attracted. Annxure 6 is the wound certificate issued by the Assistant Surgeon on 24.10.2004, the date of the incident. It shows that petitioner when examined by the doctor had reported pain on the left ear and also loss of hearing. The other medical record produced is Annexure 7 treatment certificate issued by the doctor Mathew Joseph. The treatment certificate shows that petitioner was treated consecutively and he got perforation of Tympanic membrane and contusion of left cheek and pain over the temporal mandible joint. Annexure A5 final report shows that the statement of Dr. joseph was recorded under section 161 of Code of Criminal Procedure and in the statement so recorded the doctor has stated that the hole in the Tympanic membrane could be caused by the alleged cause of injury stated by the petitioner. The statement also shows that a hole in the Tympanic membrane may Crl.M.C.2095/2010 8 cause loss of hearing. The argument of the learned counsel appearing for the petitioner is that perforation of Tympanic membrane certified in Annexure 7 will result in permanent impairing of the left ear as provided under clause Thirdly of Section 320 of Indian Penal Code and hence finding of the learned Sessions Judge that an offence under section 333 of Indian Penal code is not attracted is not legal. 6. The argument of the learned counsel appearing for respondents 2 to 4 is that except the statement in Annexure 7 treatment certificate that petitioner has got a perforation of tympanic membrane, there is no material to prove that there was any permanent privation of hearing of the left ear as provided under clause thirdly of Section 320 of Indian Penal Code and therefore the learned Sessions Judge was justified in holding that an offence under section 333 of Indian Penal Code is not attracted. 7. The records produced by the prosecution along with the final report, includes the treatment Crl.M.C.2095/2010 9 certificate issued by Dr.Mathew Joseph who treated the petitioner. The treatment certificate prima facie shows that there is perforation of tympanic membrane. Though the statement recorded under section 161 of Code of Criminal Procedure by the doctor does not specifically reveal that perforation of Tympanic membrane stated in Annexure 7 had resulted in permanent privation of the left ear of the petitioner, I do not agree with the submission that for that reason at the stage of hearing the Public Prosecutor and the defence counsel under section 227 of Code of Criminal Procedure, learned Sessions Judge is justified in holding that an offence under section 333 of Indian Penal Code is not attracted. The effect of the perforation of Tympanic membrane and whether it would result in permanent privation of the ear is a matter to be considered by the learned Sessions Judge only after recording the evidence. Therefore at the stage of hearing under section 227 or 228 of Code of Criminal Procedure learned Sessions Judge is not justified in concluding that it does Crl.M.C.2095/2010 10 not attract an offence under section 333 of Indian Penal Code. In such circumstances, Annexure 8 order passed by the learned Sessions Judge can only be quashed. 8. Learned Additional Sessions Judge, Thodupuzha is directed to frame a charge for the offences under section 333 of Indian Penal Code also. The question whether an offence under section 333 of Indian Penal Code is attracted or not is to be decided on the evidence to be recorded. Petition is allowed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006