IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH OCTOBER 2010 / 4TH KARTHIKA 1932 Crl.MC.No. 1462 of 2007() ------------------------------ CP.78/2006 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEYYATTINKARA .................... PETITIONER(S): ACCUSED NOS.3 TO 17 ---------------------------------------------- 1. ANTO SIBI, S/O.LAVIN JOSEPH, PULLUVILA THILAK NIVAS, NEAR POST OFFICE, OPP.PULLUVILA CHURCH, KARUMKULAM VILLAGE, THIRUVANANTHAPURAM. 2. JERAMYAS, S/O.JACOB, AGED 67, JACOB VILLA, KARUMKULAM DESOM, THIRUVANANTHAPURAM. 3. LAWRANCE, S/O.THOMAS, AGED 70, PULLUVILA VADAKKETHOTTU HOUSE, KARUMKULAM DESOM, THIRUVANANTHAPURAM. 4. BENNET, S/O.LAWRANCE, PULLUVILA VADAKKETHOTTU HOUSE, KARUMKULAM DESOM, THIRUVANANTHAPURAM. 5. BRANTO, S/O.LAWRANCE, PULLUVILA VADAKKETHOTTU HOUSE, KARUMKULAM DESOM, THIRUVANANTHAPURAM. 6. BIST, S/O.JERAMIAS, JACOB VILLA, PULLUVILA VADAKKETHOTTU HOUSE, KARUMKULAM DESOM, THIRUVANANTHAPURAM. 7. EARNEST @ BABY, S/O.JERAMIAS, JACOB VILLA, PULLUVILA VADAKKETHOTTU HOUSE, KARUMKULAM DESOM, THIRUVANANTHAPURAM. 8. JOOSA, S/O.PILIPPAS, PULLUVILA IRAYIMMON THURA PURAYIDAM, KARUMKULAM DESOM, THIRUVANANTHAPURAM. ........2/-... ...2... 9. MERIDASAN, S/O.ALPHONSA, PULLUVILA IRAYIMMON THURA PURAYIDAM, KARUMKULAM DESOM, THIRUVANANTHAPURAM. 10. JOHN, S/O.ALPHONSA, OPP: PULLUVILA NO.XIII, HIGH SCHOOL, KARUMKULAM DESOM, THIRUVANANTHAPURAM. 11. KRISTHUDASAN, S/O.SILUVAYAN, PULLUVILA IRAYIMMANTHURA PURAYIDAM, LARUMKULAM DESOM, TRIVANDRUM. 12. JAYA, D/O.AGNES, PULLUVILA THOTTAM PURAYIDAM, KARUKULAM DESOM, TRIVANDRUM. 13. FELSITTA, D/O.BARBARA, OPP: PULLUVILA CHURCH, KARUKULAM DESOM, TRIVANDRUM. 14. MONICCA, D/O.BARBARA, AGED 62, OPP: PULLUVILA CHURCH, KARUKULAM DESOM, TRIVANDRUM. 15. LUKOSE, S/O.PETER, KADAVILAKOM PURAYIDAM, KARUKULAM DESOM, TRIVANDRUM. BY ADVS. SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.RAJU RADHAKRISHNAN SRI.ANIL K.MOHAMMED RESPONDENT(S): COMPLAINANT AND STATE ---------------------------------------------------- 1. PAULOSE, S/O.JOSEPH, PULLUVILA THOTTAM PURAYIDAM, KARUMKULAM DESOM, TRIVANDRUM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.G.SUDHEER R2 BY PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/10/2010, ALONG WITH CRMC NO. 2813 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS/ M.SASIDHARAN NAMBIAR, J. ------------------------- Crl.M.C Nos.1462 & 2813 of 2007 -------------------------- Dated this the 26th October, 2010 O R D E R Petitioners in Crl.M.C No.1462 of 2007 are accused 3 to 17 in C.P. No.78 of 2006 on the file of Judicial First Class Magistrate-III, Neyyattinkara taken cognizance for the offences under Sections 143, 147, 148, 452, 324, 323, 427and 307 r/w 149 of Indian Penal Code on Annexure -G complaint filed by the second respondent, and taken cognizance by Judicial First Class Magistrate-III, Neyyattinkara as C.M.P. No.6198/2002. The complaint is in respect of the incident that occurred on 10.8.2001 at about 11 p.m. on the night. Admittedly in respect of that incident, two crimes were registered in Kanjiramkulam Police Station. Crime No.155/2001 was registered based on the information furnished by the relative of the deceased for the offences under Sections 143, 147, 148, 341, 324, 307 and 302 r/w 149 of Indian Penal Code. Crime No.156/2001 was registered in respect of the injury sustained by the accused in Crime 155/2001. Annexure-A is the F.I.R in Crime No.155/2001. Annexure-C final report was submitted in Crime 155/2001 on 15.5.2002. Annexure-D final report Crl.M.C Nos.1462 & 2813 of 2007 2 was submitted on the same day in Crime No.156/2001 also. It was taken cognizance as C.P. 54/2002 and subsequently committed to Sessions Court, Thiruvananthapuram. It is now pending as SC 845/2004. Based on Annexure-D final report, C.C No 405/2002 was taken cognizance against the accused 1 to 3 in C.P. 78/2006. Annexure-E complaint was filed by the first respondent before Judicial First Class Magistrate-III Neyyattinkara, alleging that petitioners herein committed the offences. It was sent for investigation under Section 156 (3) of Cr.P.C. Accordingly, Crime No.202/2001 was registered by Kanjiramkulam Police . Thereafter, a report was submitted by the Sub Inspector of Police, Kanjiramkulam Police Station on 21.11.2001 to the effect that though Crime No.202/2001 was registered, as the said crime is being investigated in Crime No.156/2001, there is no necessity to continue the investigation of crime 202/2001 and the said crime is dropped. Annexure-D final report was only against three of the accused, Annexure -G complaint was filed by the second respondent alleging that all the accused committed the offence. It was taken cognizance by the learned Magistrate as C.P 78/2006 after conducting an enquiry under Section Crl.M.C Nos.1462 & 2813 of 2007 3 202 of Cr.P.C. Crl. M.C No. 1462/2007 is filed to quash the cognizance taken in C.P. 78/2006 contending that learned Magistrate should not have taken cognizance of the offences in the light of the final report submitted in Crime No.156/2001 and in any case no enquiry as provided under Section 202 of Cr.P.C was conducted. 2. First respondent, the defacto complainant filed Crl.M.C No.2813/2007 for a direction to Sessions Judge to call for C.P. No.78/2006 and to try the case along with SC 845/2004, which is the main case. 3. Learned counsel appearing for petitioners in Crl. M.C No.1462 of 2007 and first respondent therein, who is the petitioner in Crl. M.C No.2813/2007 were heard. 4. As it was disputed that learned Magistrate did not conduct an enquiry as provided under Section 202 of Cr.P.C, a report was called for from Judicial First Class Magistrate Court-III Neyyattinkara as to how the cognizance was taken and whether an enquiry as provided under Section 202 of Cr.P.C was conducted. Report of the learned Magistrate shows that learned Magistrate conducted enquiry under Section 202 of Cr.P.C and recorded the statement of the Crl.M.C Nos.1462 & 2813 of 2007 4 witnesses and thereafter took cognizance. The order taking cognizance is shown in the report submitted by the learned Magistrate as follows: "Heard. Taken cognizance for offences under Sections 143, 147, 148, 149, 452, 324, 323, 427 and 307 of I.P.C and filed as C.P. 78/2006. Issue summons to all accused" 5. The proviso to sub section (2) of Section 202 of Cr.P.C mandates that in an inquiry under sub section (1) of Section 202, the Magistrate may if he thinks fit take evidence of witness on oath. The proviso mandates that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. " 6. In view of the proviso, when the cognizance taken include an offence under Section 307 of Indian Penal Code, which is triable exclusively by the Court of Sessions, learned Magistrate is bound to record the statement of all the witnesses on oath, who are to be examined once the case is committed to the Sessions Court. The order does not show that the evidence of all the witnesses were recorded on oath Crl.M.C Nos.1462 & 2813 of 2007 5 as mandated under the proviso to sub section (2) of Section 202. As rightly pointed out by the learned counsel appearing for the petitioners, the order also does not show that learned Magistrate had taken due consideration of Annexure-D final report already submitted and the records produced in support of the final report. Even though on submission of the final report, learned Magistrate is competent to take cognizance of the offences on a complaint, termed as protest complaint, Magistrate is bound to consider the refer report also. As it is found that learned Magistrate has not applied his mind on these relevant aspects, it is necessary to direct the learned Magistrate to consider the question afresh and take cognizance of the offences thereafter. If Magistrate is to take cognizance of an offence which includes an offence under Section 307 of Indian Penal Code,he shall necessarily commit the case to the Sessions Court. 7. Even if C.P. 78/2006 was properly taken cognizance, a direction cannot be issued to the Sessions Judge as sought for by the defacto complainant in Crl. M.C No.2813/2007. Sessions Judge cannot call for a case pending before the Magistrate, even if it is a counter case, Crl.M.C Nos.1462 & 2813 of 2007 6 without committal and try the case along with sessions case pending before him. There should be a committal by the concerned Magistrate. Evidently, C.C No.405/2002 is the counter case of SC No.845/2004. Hence the counter case is also to be tried by the same court, where the main case is being tried. Though an offence under Section 324 of Cr.P.C is triable by the Magistrate and not exclusively triable by the Sessions Court, being a counter case of the main case, which is to be tried by the Sessions Court, learned Magistrate has to commit the case as provided under Section 323 of Cr.P.C. 8. Crl. M.C No.2813/2007 is therefore disposed granting liberty to the petitioner to move the learned Magistrate to commit CC 405/2002 to the Sessions Court. Once the case is committed, learned Sessions Judge to try the case as the counter case of SC 845/2004. 9. The cognizance taken in C.P. 78/2006 is quashed, C.M.P. No.6198/2002 is remitted to Judicial First Class Magistrate, Neyyattinkara to consider afresh. Before taking cognizance, learned Magistrate is to record the evidence of all the witnesses to be examined before the Sessions Court, Crl.M.C Nos.1462 & 2813 of 2007 7 on oath as provided under proviso to sub section (2) of Section 202 of Cr.P.C and thereafter consider the question whether cognizance for the offences is to be taken. The Magistrate shall necessarily consider the final report submitted in CC No.405/2002, while considering the said question. As the sessions case is pending before Sessions Court from 2005 onwards, learned Magistrate is directed to decide the question whether cognizance is to be taken in C.M.P No.6198/2002 or not afresh immediately, at any rate, within one month from the date of receipt of a copy of this order. If it is decided to take cognizance, it shall immediately be committed to the Sessions Court. Petitions are disposed. M.SASIDHARAN NAMBIAR JUDGE ma