IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 Crl.MC.No. 231 of 2010() ------------------------ CC.78/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY .................... PETITIONER(S): --------------- NABEESA, D/O.MUHAMMED @ VAPPU, CHARUVIL VEETTIL, PILAKKAD VILLAGE, NADUVATTOM DESOM. BY ADV. SRI.P.SANJAY SMT.A.PARVATHI MENON SRI.BIJU MEENATTOOR SMT.SHEEBA FAIZAL SRI.RAJAN KUDUMBATHIL SRI.GLEN ANTONY RESPONDENT(S): COMPLAINANT -------------------------- THE STATE OF KERALA, REPD. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.S. HRITHICK THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.M.C. No. 231 of 2010 * * * * * * * * * * * * * * * * * * Dated: 18th day of May, 2010 ORDER One Moideen and the petitioner Nabeesa were the accused in Crime No. 146 of 2000 of Erumappetty Police Station, Thrissur for offences punishable under Sections 313 and 318 read with Sec. 34 I.P.C. The grievance of the petitioner is that eventhough she was already tried and acquitted by the Addl. Sessions Court (Adhoc – II) , Thrissur on 21-6-2005 she has been again served with summons initially by the Chief Judicial Magistrate, Thrissur in C.C. No. 159 of 2003 as evidenced by Annexure A2 dated 15-12-2008 . 2. According to the petitioner, this amounts to double jeopardy interdicted by Article 20 (2) of the Constitution of India and Sec. 300 Cr.P.C. 3. This Court called for a report from the Sessions Judge, Thrissur. The report dated 9-2-2010 by the learned Sessions Judge, Thrissur reveals the following:- Crl.M.C. No. 231 of 2010 -:2:- “Crime No. 146 of 2000 was a case registered by the Erumappetty Police Station against one Moideen and and petitioner herein for offences punishable under Sections 313 and 318 read with Sec. 34 I.P.C. After the filing of the final report, the J.F.C.M. Kunnamkulam took the case on file as C.P. 34 of 2001 under Sec. 313 against Moideen and C.P. 73 of 2001 under Sec. 318 read with Sec. I.P.C. against Moideen and the petitioner herein. C.P. 34 of 2001 was committed by the Sessions Court, Thrissur on 22-6-2001 and taken on file as S.C. 518 of 2001. The learned Sessions Judge made over S.C. 518 of 2001 to the Principal Assistant Sessions Court, Thrissur for disposal. C.P. 73 of 2001 against Moideen and the petitioner herein for the offence punishable under Sections 318 read with Sec. 34 I.P.C. was committed to the Sessions Court and was taken on file as S.C. 324 of 2002. The learned Sessions Judge made over S.C. 324/2002 to the II Addl. Asst. Sessions Court, Thrissur for disposal. While so, S.C. No. 518 of 2001 was withdrawn from the Principal Asst. Sessions Court, Thrissur and made over to the Addl. Sessions Court, (Fast Track – II) by the Sessions Judge on 23- 12-2003 for trial and disposal. The II Addl. Asst. Sessions Court took up S.C. 324/2003 for trial and noticing that the offence disclosed was not one exclusively triable by a Court of Session, transferred the case to the Chief Judicial Magistrate, Thrissur by invoking the power under Section 228 (1) Cr.P.C. The learned Chief Judicial Magistrate took the case on file as C.C. No. 159 of 2003. In the meanwhile, the IV Addl. Sessions Judge (Adhoc-II) Thrissur before whom C.C. No. 518 of 2001 was pending addressed the Crl.M.C. No. 231 of 2010 -:3:- Chief Judicial Magistrate on 21-8-2004 and directed him to forward the records in S.C. No. 324 of 2002 for the purpose of disposal along with S.C. No. 518 of 2001. The learned Chief Judicial Magistrate forwarded the records directly to the IV Addl. Sessions Judge (Adhoc-II) on 6-10-2004. After receipt of the records from the Chief Judicial Magistrate in C.C. No. 159 of 2003 it was registered as S.C. 324 of 2002 and was tried along with S.C. 518 of 2001 . On 21-6-2005, the IV Addl. Sessions Judge (Ahoc-II), Thrissur acquitted both the accused in both the Sessions Cases. Thereafter the records in C.C. 159 of 2003 were returned to the Chief Judicial Magistrate on 15-10-2008. The Chief Judicial Magistrate without noticing that the accused were already acquitted by the Addl. Sessions Judge issued summons to the accused including the petitioner herein. That is how the petitioner happened to receive summons originally from the Chief Judicial Magistrate and thereafter from the J.F.C.M. Wadakkancherry. 4. The apprehension expressed by the petitioner is well- founded. She was already acquitted by the IV Addl.Sessions Court (Adhoc-II) in both the Sessions Cases which were presumably tried by that Court jointly. Eventhough it was illegal on the part of the IV Addl. Asst. Sessions Court (Adhoc-II) Thrissusr to call for the records in C.C. No. 159 of 2003 and try the same as a Sessions Case without a committal, the fact remains that the petitioner was acquitted by that court after Crl.M.C. No. 231 of 2010 -:4:- trial. Hence, the double jeopardy protection guaranteed under Article 20 (2) of the Constitution and Sec. 300 Cr.P.C. is available to the petitioner. C.C. No. 78 of 2009 on the file of the J.F.C.M. Wadakkancherry shall, therefore, stand quashed. Crl.M.C. is allowed as above. Dated this the 18th day of May, 2010. Sd/-V. RAMKUMAR, (JUDGE) ani. /true copy/ P.S. to Judge