IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 Crl.MC.No. 710 of 2008 ------------------------ CP.74/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT - I, IDUKKI .................... PETITIONER: ACCUSED 2 & 4 ------------------------- 1. SIBY, AGED 39 YEARS, S/O.AUGASTIN PALAKKUNNEL HOUSE, CHELACHUVADU KARA KANJIKKUZHY VILLAGE. 2. TOMY @ XAVIER, AGED 37, S/O.MATHAI NELLIPPALLI HOUSE, CHELACHUVADU KARA KANJIKKUZHY. BY ADV. SRI.S.RAJEEV RESPONDENTS: STATE ------------------ STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. (CRIME NO.67 OF 2007 OF KANJIKUZHY POLICE STATION) BY PUBLIC PROSECUTOR MR. K.S. SIVAKUMAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 710 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of February, 2008 ORDER The petitioners, who are accused 2 and 4 in Crime No.67 of Kanjikuzhy police station which was originally registered for offences punishable under Sections 353, 225 read with Section 34 of the Indian Penal Code and subsequently also registered for offences under Sections 55(i) and 61 of the Abkari Act, filed C.M.P.Nos.313/08 & 333/08 in C.P.No.74/2007 before the Judicial First Class Magistrate-I, Idukki to limit the offences other than the offence under the Abkari Act. As per order dated 7-2-2008, the learned Magistrate dismissed the petition on the ground that he does not have the power to entertain such a petition. I fully agree with the learned Magistrate who, having taken cognizance of all the offences and having registered C.P.No.74/2007, could not have gone back to the pre-cognizance stage by accepting the contentions of accused 2 and 4. After having taken cognizance of the offences including the offences CRMC.710/2008 -2- exclusively triable by the court of Sessions, the Magistrate had no power under Section 209 Cr.P.C.to refuse to commit the case by deleting the offences triable by the Sessions Court. The only course now open to the petitioner is to plead for a discharge before the Sessions Court during the preliminary hearing under Section 227 Cr.P.C. Reserving the said right of the petitioners, this Crl.M.C. is dismissed. In case at the time of hearing under Section 227 Cr.P.C. the Sessions Judge concerned comes to the conclusion that the offences are not exclusively triable by a court of Session, he can then proceed under Section 228(1)(a) Cr.P.C. and transfer the case either to the Chief Judicial Magistrate or the Judicial First Class Magistrate. V. RAMKUMAR, JUDGE ks CRMC.710/2008 -3- The accused in C.C. / ST. No..................on the file of the J.F.C.M, for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, challenges the conviction entered and the sentence passed against him concurrently by the courts below. 2. Pending this revision, the parties have settled the matter. Crl.M.A.No. of 2007 has been filed under Section 147 of the Negotiable Instruments Act, 1881 seeking permission to record the composition entered into between the revision petitioner and the complainant. The said petition has been signed by both the revision petitioner as well as the complainant and their respective counsels. In the light of this development, the aforementioned composition is recorded and it will have the effect of an acquittal of the revision petitioner within the meaning of Sec. 320 (8) Cr.P.C. This Crl. R.P. is disposed of as above. V. RAMKUMAR, JUDGE CRMC.710/2008 -4- sj