IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 19TH AUGUST 2011 / 28TH SRAVANA 1933 Crl.Rev.Pet.No. 3072 of 2004(B) ------------------------------- SC.133/2003 of ADDL.SESSIONS COURT-II, KOZHIKODE .................... REVISION PETITIONER(S): DEFACTO COMPLAINANT: -------------------------------------------------------------------------------- ALI HAJI, ALOKATTIL VEEDU, ERAMANGALM, KOZHIKODE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT(S): ACCUSED & STATE: ---------------------------------------------------------- 1. SUDHAKARAN, S/O. GOVINDA KURUP, NJARACHALIL HOUSE, KOKKALLUR AMSOM DESOM, BALUSSERY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.SANTHARAM.P R2 BY PUBLIC PROSECUTOR SRI. ALEX M.THOMBRA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss N.K.BALAKRISHNAN, J. -------------------------------- Crl.R.P. No.3072 of 2004 --------------------------------- Dated this the 19th day of August 2011 O R D E R The father of the deceased Mohammed Koya who succumbed to the injuries in an incident in which a Tempo Trax bearing No.KL 11/B-6273 alleged to have been driven by the first respondent/accused hit the motor cycle stated to have been ridden by the deceased on 4.2.2001 at about 11 PM, is the revision petitioner. That crime was originally registered under Sec.304A IPC. The revision petitioner filed complaint to the Superior Officers. Accordingly, the investigation was handed over to CBCID. After investigation the charge sheet was laid against the accused alleging commission of offence under Sec.304 IPC. The case was thereafter committed by the learned Magistrate to the Sessions Court. The learned 2nd Addl. Sessions Judge after hearing the learned Prosecutor and counsel for the Crl.R.P. No.3072 of 2004 -: 2 :- accused found that the offence alleged against the accused would not fall under Sec.304 IPC but only under Sec.304A IPC. That order is challenged in this revision petition. It is submitted by the learned counsel appearing for both sides that after the impugned order was passed since this revision petition was filed, the matter was stayed and hence the case is still pending before the 2nd Addl. Sessions Judge, Kozhikode. 2. The learned counsel for the revision petitioner would submit that on going through the CD statements and other records it can be seen that there are materials to hold that the accused and the deceased were seen together at 10 PM and also prior to that on the same day in the house of CW24 where a house warming ceremony was going on. It is also submitted that the accused and the deceased were seen together near a bakery-shop also. According to the learned counsel there is also material to show that the accused was seen drunk at that time. Learned counsel Crl.R.P. No.3072 of 2004 -: 3 :- pointed out that the accused went to his house in a motor cycle and leaving that motor cycle in his house he went to the house of CW35 and from there he took the tempo trax and thereafter he was seen driving the tempo trax immediately after the deceased was seen riding towards Eramangalam. The motor cycle was hit from behind by the tempo trax. Therefore, according to the learned counsel these circumstances would show that the accused had driven the vehicle deliberately to cause the death of the deceased. 3. This submission has been resisted by the learned counsel for the accused pointing out that even in the memorandum of evidence the explanation for taking the tempo trax was stated. The learned counsel further submits that there are other circumstances also which would go against the case put forward by the revision petitioner. It is submitted that the learned Sessions Judge was not expected to embark upon a roving enquiry into the pros and cons of Crl.R.P. No.3072 of 2004 -: 4 :- the prosecution case at the time of framing charge under Sec.227 Cr.P.C. But at the same time, learned Sessions Judge can go through the records to find whether there are prima facie materials to frame charge under Sec.304 IPC. It would appear from the order passed by the learned Sessions Judge that he had gone through the records and then found that the materials which were placed before the court could only justify framing of charges under Secs.279 and 304A IPC etc. The learned counsel for the petitioner submits that the learned Sessions Judge could have proceeded with the trial and if at all after trial there was no evidence to attract Sec.304 IPC, the trial judge could have convicted the accused for the offences proved against him. Having gone through the records by the learned Sessions Judge and found that the charge would lie only under Secs.279, 304A IPC etc. I do not find any reason to upset that order. But it is made clear that if in the trial there appears any evidence against the accused which may Crl.R.P. No.3072 of 2004 -: 5 :- attract the offence exclusively triable by the court of sessions, it would be open to the learned Magistrate to commit the case to the court of sessions as provided under Sec.323 Cr.P.C. It is needless to say that the trial would be untrammelled by any of the observations made by the learned Sessions Judge or by this Court in this order. The learned II Addl. Sessions Judge, Kozhikode would take up the case on 19.9.2011 on which date the accused will appear before that court. N.K.BALAKRISHNAN, JUDGE. Jvt