IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 Crl.MC.No. 1898 of 2009(D) -------------------------------------- (S.C. NO. 110/2009 OF SESSIONS COURT, MANJERI, CC.758/2008 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR) .................... PETITIONERS/ ACCUSED NOS. 2 AND 3: --------------------------------------------------------- 1. SAIDALIKUTTY, S/O. ENI, PATTAMMARTHODI HOUSE, EDAYOOR, MALAPPURAM DISTRICT. 2. MANIKANDAN, S/O. MADHAVAN, MADAVANCHERIPADY HOUSE, EDAYOOR, MALAPPURAM DISTRICT. BY ADV. MR.BABU S. NAIR. RESPONDENTS/ STATE AND ACCUSED IN C.C. NO. 758/2008: --------------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, VALANCHERY POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI -31. 2. NOORUDHEEN, S/O. HYDRES, MUNDIKKAL HOUSE, ATHIPATTA, EDAYOOR, MALAPPURAM DISTRICT. 3. MANSOOR, S/O. UNNEENKUTTY MUSLIAR, VADAKKETHIL HOUSE, ATHIPATTA, EDAYOOR, MALAPPURAM DISTRICT. 4. MUHAMMED IQBAL, S/O. UNNEENKUTTY, PARAMBALACHERY HOUSE, VENGAD, MALAPPURAM DISTRICT. CRL.M.C. NO. 1898/2009-D: 5. MUSTAFA, S/O. HYDRES, CHOLAYIL HOUSE, ATHIPATTA, EDAYOOR, MALAPPURAM DISTRICT. BY PUBLIC PROSECUTOR MR. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. =================== Crl.M.C. No. 1898 of 2009-D =================== Dated this the 22nd day of June, 2009. O R D E R Petitioners are accused 2 and 3 in Crime No.525/2008 of Valanchery Police Station pending before the Sessions Court, Manjeri as S.C.No.110/2009. The offences alleged are under Sections 143, 147, 148, 341, 323, 324 and 398 read with Section 149 of Indian Penal Code. Petitioners are the injured in Crime No.526/2008, which is now pending for trial before Judicial First Class Magistrate Court, Tirur as C.C.No.758/2008 for offences under Sections 341, 323 and 324 read with Section 149 of Indian Penal Code. 2. Petitioners originally filed Annexure C application before the Magistrate under Section 323 of Code of Criminal Procedure to commit the case to the Sessions Court contending that it is to be tried by the Sessions Judge as the main case S.C.No.110/2009 is being tried by the said court. Petitioners later withdrew the application and this Crl.M.C.No.1898/2009-D -2- petition is filed under Section 482 of Code of Criminal Procedure contending that there should be a direction to the Magistrate to commit C.C.No.758/2008 to the Sessions Court, where S.C.No.110/2009 is being tried. 3. Learned Counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. Learned Counsel appearing for the petitioners submitted that though there is a slight difference in the time of the incident involved in Crime Nos.525 and 526 of 2008 as alleged by the prosecution, both are in respect of the same incident and therefore both are to be tried by the same court. Learned Counsel argued that though the offences in Crime No.526/2008 are not exclusively triable by the Sessions Court, as the counter case is also to be tried by the same court, it is to be committed under Section 323 of Code of Criminal Procedure. The learned Counsel also argued that in such circumstances the case is to be committed to the Sessions Court. Learned Counsel further Crl.M.C.No.1898/2009-D -3- argued that even if a strict view is to be taken because of the difference of time of the incidents and it is stated that Crime No.525/2008 is not the counter case of Crime No.526/2008, as the case of the petitioners is that both the incidents are the same, the learned Magistrate can committee the case under Section 323 of Code of Criminal Procedure. 5. Learned Public Prosecutor on instructions submitted that crime No.526/2008 is not the counter case of crime No.525/2006. Learned Public Prosecutor pointed out that the incident occurred at two different places and time and therefore the cases are not the main case and counter case and need not be tried by the same judge and so the petition is only to be dismissed. 6. Section 323 of Code of Criminal Procedure enables the Magistrate to commit a case being tried by him, even if the offences are not exclusively triable by the Sessions Court, if he is satisfied that it is a case to be tried Crl.M.C.No.1898/2009-D -4- by the Sessions Court. When the offences in the counter case are not exclusively triable by the Sessions Court, if it is to be tried by the same court where main case is being tried, Magistrate is bound to commit the case under Section 323 of Code of Criminal Procedure to the Sessions Court. But if the case pending before the court is not another version of the same incident, which is being tried by the Sessions Court, this Court cannot compel the Magistrate to commit the case invoking the power under Section 323 of Code of Criminal Procedure. In such circumstances, I do not find any reason to give a direction as sought for by the petitioners. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE dkr