IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 CRL.REF.No. 9 of 2010() --------------------------------- - CP.239/2004 of JUDICIAL FIRST CLASS MAGISTRATE – II,NEYYATTINKARA SC. NO.1943/2006 OF ASSISTANT SESSIONS COURT, NEYYATTINKARA. .................... SUO MOTU RESPONDENT(S): ------------------------- 1. ANILKUMAR, S/O. MUTHUSWAMY NADAR, KUNNATHUVIAL PUTHEN VEEDU UDIYANKULANGARA, KEEZHKOLLA DESOM, CHENKAL VILLAGE, THIRUVANANTHAPURAM(A1) 2. SAHADEVAN, S/O. MUTHUSWAMY NADAR, DO. DO. 3. STATE OF KERALA. PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REFERENCE HAVING COME UP FOR ADMISSION ON 17/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.SASIDHARAN NAMBIAR,J. =========================== CRL.REFERENCE No. 9 OF 2010 =========================== Dated this the 17th day of September,2010 ORDER In Crime No.302/2002 of Parassala Police Station final report was filed by Additional Sub Inspector of Police, Parassala for the offence under sections 308 read with section 34 of Indian Penal Code against two accused Anilkumar and Sahadevan respectively. Judicial First Class Magistrate-II, Neyyattinkara took cognizance of the offences and numbered the case as C.P.195/2002. Second accused Sahadevan did not appear. Judicial First Class Magistrate-II, Neyyattinkara by order dated 4.11.2004, split up the case as against second accused and refiled it as C.P.239/2004. The case against the first accused Anilkumar was committed to Sessions Court on 4.11.2004. It was taken on file by Sessions Court, Crl.Ref.9//2010 2 Thiruvananthapuram as S.C.870/2005 and made it over for trial and disposal to Assistant Sessions Court, Neyyattinkara. Subsequently as per order dated 31.7.2006 Judicial First Class magistrate-II, Neyyattinkara committed C.P.239/2004 to the Sessions Court. It was taken on file by the learned Sessions Judge as S.C.1943/2006 and made it over to Assistant Sessions Court, Neyyattinkara. Learned Assistant Sessions Judge, Neyyattinkara found that, though the case against the first accused was committed in C.P.195/2002, the order of committal in C.P.239/2004 also shows that the same accused was committed. When the mistake was detected, the learned Assistant Sessions Judge sought the directions of the Sessions Judge. Learned Sessions Judge addressed this court and it was taken as a suo motu reference case. 2. As Judicial First Class Magistrate-II, Neyyattinkara by order dated 31.7.2006 committed the case against the very same first accused whose case was committed earlier by order dated 4.11.2004 in C.P.195/2002 and that case was taken Crl.Ref.9//2010 3 on file by Sessions Court made it over to the Assistant Sessions Court, Neyyattinkara for trial as S.C.870/2005, there is no necessity to issue notice to the first accused, in S.C.1943/2006 in this reference. 3. Learned Public Prosecutor was heard. 4. The order dated 31.7.2006 in C.P.239/2004 establishes that Judicial First Class Magistrate- II, Neyyattinkara by order dated 4.11.2004 in C.P.195/2002 committed the first accused Anilkumar to the Sessions Court. The report of the Assistant Sessions Judge, neyyattinkara and the learned Sessions Judge, Thiruvananthapuram establishes that the case committed in C.P.195/2002 was taken on file and is pending before Assistant Sessions Court, Neyyattinkara as S.C.870/2005. The case against the second accused was split up and refiled as C.P.239/2004. It is clear from the order dated 31.7.2006 in C.P.239/2004 that learned Judicial First Class Magistrate-II, Neyyattinkara, without going through the records wrongly committed the very same accused again by order dated 31.7.2006. Crl.Ref.9//2010 4 It could either be a mistake committed without reference to the records or a mistake committed in showing the name of the actual accused, whose case was committed. Hence the order in C.P.239/2004 can only be quashed. 5. The order committing the case against the first accused Anilkumar for the second time, in C.P.239/2004, is therefore quashed. Consequently S.C.1943/2006 on the file of Assistant Sessions Court taken on file as per the order of committal dated 31.7.2006 in C.P.239/2004 is also quashed. Judicial First Class Magistrate-II, Neyyattinkara is directed to commit the case against the second accused, after procuring his presence, in accordance with law. It is made clear that Assistant Sessions Court, Neyyattinkara can proceed with the trial in S.C.870/2005. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006