IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 Crl.Rev.Pet.No. 1319 of 2009() ------------------------------ CP.8/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOLLAM .................... REVN. PETITIONER(S): ACCUSED ---------------------------- MURALEEDHARAN, S/O.SIVANANDAN, CHITTOOR HOUSE, PATTATHANAM, VADAKKEVILA VILLAGE, KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. REJI, D/O.SARASWATHY, VRINDAVANAM, PATTATHANAM NAGAR 93, VADAKKEVILA P.O., KOLLAM. BY PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1319 of 2009 -------------------------------------- Dated this the 23rd day of May, 2009. ORDER Public Prosecutor takes notice for respondent No.1. Notice to R2 dispensed with in view of the order I am proposing to make. 2. Heard counsel for petitioner and the Public Prosecutor. 3. Petitioner is challenging the proceedings in committal in C.P.No.8 of 2009 of Judicial First Class Magistrate-II, Kollam. His case is that on the basis of information given by the defacto complainant, police registered a case against him (FIR is Annexure-A1) and after investigation filed Annexure-A3, final report for offences punishable under Sections 447 and 326 of the Indian Penal Code (for short, “the Code”). While so, defacto complainant filed a private complaint in the same court alleging that petitioner committed offence punishable under Section 308 of the Code. Witnesses were examined on that complaint and learned magistrate took the view that offence under Section 308 of the Code is made out and initiated steps to commit the case to the Sessions Court. Learned counsel submitted that since in respect of the very same issue a final report is filed by the police and is pending trial, a subsequent complaint is not maintainable. He therefore requests that committal proceedings be set aside. Crl.R.P.No.1319/2009 2 4. It was perfectly legal for the magistrate not to have conducted enquiry on the complaint filed by the defacto complainant notwithstanding that police had filed final report in respect of offences other than Section 308 of the Code referred to in the private complaint. It is not disputed that in the final report there is no reference to the offence under Section 308 of the Code. I do not find anything illegal or irregular in the learned magistrate entertaining the private complaint. Necessarily the case has to be committed to the Sessions Court concerned for trial. 4. It is then pointed out by the learned counsel that the case initiated on police report will be pending for trial in the court of learned magistrate while case initiated on private complaint will go for trial to the Sessions Court. It is not as if there is no remedy available. Under Section 323 of the Code of Criminal Procedure it is open to the magistrate to commit to the Sessions Court the case pending before him and based on the police report in case it is found that the said case is to be tried along with the case which was initiated on the private complaint and committed to the Sessions Court. If no offence is made out under Section 308 of the Code, it is open to the petitioner to urge that plea before the Sessions Judge/Assistant Sessions Judge as the case may be when the issue regarding framing of charge arises. If no offence triable by a court of Session is made out, it is within the power of the Sessions Court to make over Crl.R.P.No.1319/2009 3 the case to the court of Chief Judicial Magistrate or any other magistrate for trial as provided under Section 228 of th Code of Criminal Procedure. There is no reason to interfere with the order under challenge. Revision petition fails. It is dismissed. Crl.M.A.No.3936 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks