IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 Crl.MC.No. 4586 of 2010() ------------------------------------- C.C.763 OF 2008 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KANJIRAPPALLY. ......................... PETITIONERS/ACCUSED 1 TO 3 ---------------------------------------------- 1. THOMAS, S/O. JOSEPH, VARANATH HOUSE, NADUKANI, EDAKKUNNAM 2. CHACKO, S/O. JOSEPH, VARANATH HOUSE, NADUKANI, EDAKUNNAM. 3. THOMAS MATHEW, ALIAS JOSEKUTTY, S/O. JOSEPH, MUNDAPLACKAL, NADUKANI, EDAKUNNAM. BY ADV. SRI.V.C.JAMES, SRI.HARINDRAMOHAN NAIR. RESPONDENTS/STATE AND THE COMPLAINANT ------------------------------------------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P. RAJKUMAR, S/O. LATE PURUSHOTHAMAN THAMPI, PATTATHIL VEEDU, NADUKANI, EDAKKUNNAM. R1 BY PUBLIC PROSECUTOR MR.I.V. PRAMOD. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/11/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.4586 of 2010 -------------------------- ORDER Petitioners are the accused in S.C.No.230/2010 on the file of Sessions Court, Kottayam, taken cognizance for the offences under Sections 452, 341, 323, 324 and 308 read with Section 34 of Indian Penal Code. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Based on Annexure-II final report submitted under Section 173(2) of Code of Criminal Procedure in Crime No.430/2007, learned Judicial First Class Magistrate, Kanjirappally took cognizance of the offences under Sections 452, 341, 323, 324 and 308 read with Section 34 of Indian Penal Code. Contending that Investigating Officer did not properly investigate the case and an offence under Section 308 of Indian Penal Code is also involved, CRMC 4586/10 2 second respondent, the defacto complainant, filed Annexure-III complaint before Judicial First Class Magistrate's Court, Kanjirappally. Learned Magistrate, after conducting an inquiry under Section 202 of Code of Criminal Procedure, by Annexure-IV order, took cognizance of the offences under Sections 452, 341, 323, 324 and 308 read with Section 34 of Indian Penal Code. 4. Learned counsel appearing for the petitioners submitted that subsequently, as the offence under Section 308 of Indian Penal Code is exclusively triable by the Sessions Court, learned Magistrate committed the case to the Sessions Court and it is now pending as S.C.No.230/2010. Though learned counsel appearing for the petitioners argued that learned Magistrate should not have taken cognizance of the offence under Section 308 of Indian Penal Code, on the materials, I cannot agree with the submission. Petitioners are entitled to raise all the contentions before the learned CRMC 4586/10 3 Sessions Judge and seek an order of discharge under Section 227 of Code of Criminal Procedure. If C.C. No.763/2008, pending before Judicial First Class Magistrate's Court, Kanjirappally, is in respect of the same incident, necessarily, that case also has to be committed to the Sessions Court as provided under Section 323 of Code of Criminal procedure. It is up to the Prosecutor or the petitioners to point out this fact to the learned Magistrate so as to exercise the jurisdiction under Section 323 of Code of Criminal Procedure. Petition is disposed granting liberty to the petitioners to raise all the contentions raised herein and seek an order of discharge under Section 227 of Code of Criminal Procedure. 23rd November, 2010 (M.Sasidharan Nambiar, Judge) tkv