IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 23RD DECEMBER 2010 / 2ND POUSHA 1932 CRL.REF.No. 12 of 2010(S) ------------------------- SC.797/2000 of SUB COURT, KASARAGOD CP.189/1999 of J.M.F.C.,KASARAGOD .................... PETITIONER -------------------- SUO MOTU RESPONDENT(S): --------------- 1. B.V.CHANDRASEKHARA PAI, S/O.VARADARAJA PAI, PERLA, ENMAKAJE VILLAGE, KASARAGOD. 2. STATE OF KERALA. R2 BY SRI.I.V.PRAMOD THIS CRIMINAL REFERENCE HAVING BEEN FINALLY HEARD ON 23/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.Ref.12 OF 2010 --------------------------------------------- Dated 23rd December, 2010 O R D E R Crime No.12/1997 of Badiadka Police Station was registered for the offences under Sections 143, 147, 148, 324 and 436 read with Section 149 of Indian Penal Code in respect of the incident that occurred on 20/1/1997 at Enmakaje Village, based on the complaint filed by B.V.Chandrashekhara Pai, first respondent. Crime No.13/1997 was also registered in respect of the same incident against the first respondent and his brothers as the accused for the offences under Sections 447, 324, 354 and 307 read with Section 34 of Indian Penal Code. Circle Inspector of Police after completing investigation filed Crl.Ref.12/10 2 final reports in both the crimes. They were taken cognizance as C.P.47/1998 and C.P.82/1997 by Judicial First Class Magistrate, Kasargod. The respective cases were committed to the Sessions Court and taken on file as S.C.238/1999 and S.C.576/1999. While so, first respondent filed a complaint before Judicial First Class Magistrate, Kasargod alleging that the investigation in Crime No.13/1997 was partisan and three accused were dropped without valid reasons and alleging that the cognizance of the offences are to be taken against those accused also. Learned Magistrate, took cognizance for the offences under Sections 447, 324, 354 and 307 read with Section 34 of Indian Penal Code as C.P.189/1999. That case was thereafter, committed to the Sessions Court. It was taken Crl.Ref.12/10 3 on file as S.C.797/2000. When S.C.797/2000 was sent to Assistant Sessions Judge for trial, learned Assistant Sessions Judge found that S.C.797/2000 was committed to the Sessions Court, without complying with the provisions of Sections 200 and 202 of Code of Criminal Procedure and prima facie, the order of committal is illegal. Learned Assistant Sessions Judge, reported the matter to this Court through the Sessions Judge. This suo motu proceedings was thus initiated. Though notice was ordered to first respondent, the complainant in C.P.189/1999, he did not appear. 2. Learned Public Prosecutor was heard. 3. After completing the investigation in Crime No.12/1997 and Crime No.13/1997, final reports were submitted. Cognizance of the Crl.Ref.12/10 4 offences were taken and those cases were committed to the Sessions Court. They are now pending as S.C.238/1999 and S.C.576/1999. De facto complainant in S.C.238/1999 filed a complaint alleging that three more accused have also committed the offences and offences committed include 354 and 307 of Indian Penal Code also. It was taken cognizance by the learned Magistrate as C.P.189/1999. The report submitted by the Assistant Sessions Judge establishes that learned Magistrate without recording the statements of the complainant or the witnesses, in violation of the provisions of Sections 200 and 202 of Code of Criminal Procedure, committed the case to the Sessions Court. 4. Proviso to Sub Section 2 of Section 202 of Code of Criminal Procedure mandates that Crl.Ref.12/10 5 if it appears to the Magistrate in an enquiry under Section 202 of Code of Criminal Procedure that, the offences complained of is triable exclusively by a Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. When the learned Magistrate committed the case without complying with the mandatory conditions provided under Section 202, the order of committal can only be quashed. The order of committal passed by the Judicial First Class Magistrate, Kasargod in C.P.189/1999, taken cognizance by the Sessions Judge as S.C.797/2000 on the order of committal is quashed. C.P.189/1999 is remitted to the learned Magistrate for fresh disposal in accordance with law. Learned Magistrate shall comply with the provisions of Sections 200/202 Crl.Ref.12/10 6 of Code of Criminal Procedure. If the case is to be committed to the Sessions Court, Magistrate shall record statements of the witnesses to be examined before the Sessions Court as provided under proviso to Section 202(2) of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR, JUDGE. uj.