IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 Crl.MC.No. 1872 of 2009(B) -------------------------------------- (IN CONNECTION WITH CRIME NO. 173/2004 OF BINANIPURAM POLICE STATION NOW PENDING AS S.C.341/2005 OF ADDL. DISTRICT & SESSIONS COURT (ADHOC-II), ERNAKULAM). .................... PETITIONER/ 1 ST ACCUSED: ------------------------------------------ RAJESH, S/O. CHANDRASEKHARAN, EZHUVACHIRA HOUSE,THIRUMALOOR, ALANGAD. BY ADV. MR.P.K.SAJEEV. RESPONDENT/ COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, BINANIPURAM POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR MR. GIKKU JACOB. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09/06/2009, ALONG WITH W.P.(C). NO. 15723/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR, J. ==================== Crl.M.C. No. 1872 of 2009-B & W.P.(C) No.15723 of 2009-Q ==================== Dated this the 9th day of June, 2009. O R D E R Petitioner in Crl.M.C.No.1872/2009 is the first accused in Crime No.173/2004 of Binanipuram Police Station, now pending for trial before Additional District and Sessions Court (Adhoc-II), Ernakulam as S.C.No.341/2005. Prosecution case in Crime No.173/2004 is that on 28-8-2004 at 2.25 PM the two accused in furtherance of their common intention committed offence under Sections 447, 326 and 308 read with Section 34 of Indian Penal Code as well as Section 27 of Arms Act alleging that accused inflicted injuries on second charge witness, Mathai, S/o Kuriakose. Based on F.I.Statement of Girish, S/o Damodaran, Crime No.178/2004 was registered by the Sub Inspector of Police, Binanipuram in respect of the incident that had taken place at the same day and place. The injured in the other case is Crl.M.C.No.1872/2009-B & W.P.(C) No.15723/2009-Q -2- one of the accused in that case. S.C.No.341/2005 is now posted for trial and summons was issued for examination of prosecution witnesses. Petitioner filed Crl.M.C.No. 1872/2009 under Section 482 of Code of Criminal Procedure for a direction to the Sessions Judge to keep further proceedings in abeyance till Crime No.178/2004 is committed for trial contending that as one case is the main case and other the counter case, both the cases are to be tried one after the other by the same court. It is contended that final report in Crime No.178/2004 is yet to be submitted. W.P.(C) No.15723/2009 is filed under Article 226 of the Constitution of India by the same petitioner for a writ or direction to the investigating officer in Crime No.178/2004 of Binanipuram Police Station, to submit final report and also to the Judicial First Class Magistrate Court, North Paravur to commit the case to the Sessions Court. 2. Learned Counsel appearing for the petitioner and learned Public Prosecutor were heard. Crl.M.C.No.1872/2009-B & W.P.(C) No.15723/2009-Q -3- 3. The grievances of petitioner is that when the final report in Crime No.178/2004 of Binanipuram Police Station is yet to be submitted in Court, if petitioner is to be tried in Crime No.173/2004 before the committal of the other case it would cause prejudice as both the main case and counter case are to be tried by the same court one after other. Learned Public Prosecutor on instructions submitted that final report was prepared as early as on 21-12-2004 and submitted before Judicial First Class Magistrate Court, North Paravur on 5-1-2005. The Registry was therefore directed to contact Judicial First Class Magistrate Court, North Paravur to find out the fate of the final report. It is now reported that the said case was taken on file as C.C.No.663/2009 and is posted to 7-7-2009 after issuing summons for appearance of the petitioner to that day. Learned Public Prosecutor submitted that though the crime was investigated for an offence under Section 308 of Indian Penal Code also, investigation report was filed after Crl.M.C.No.1872/2009-B & W.P.(C) No.15723/2009-Q -4- deleting the said offence and charge was submitted only for offences under Sections 324 and 326 of Indian Penal Code. 4. It cannot be disputed that when there is a main case and a counter case, in respect of the same transactions, both the cases are to be tried by the same judge, one after the other, though the evidence in one cannot be looked in the other case. That course is adopted to avoid contradictory findings by two different courts. Crime No.173/2004, where petitioner is one of the accused, it is posted for recording the evidence of prosecution witnesses in S.C.No.341/2005. In respect of the counter case final report was filed and learned Magistrate has taken cognizance of the offences under Sections 324 and 326 of Indian Penal Code. As the offences under Sections 324 and 326 are not exclusively triable by the Sessions Court, the Magistrate took the case on file as C.C.No.663/2009. But the fact that offences alleged in the counter case are offences not exclusively triable by the Sessions Court will Crl.M.C.No.1872/2009-B & W.P.(C) No.15723/2009-Q -5- not prohibit the Magistrate from committing the case, as provided under Section 323 of Code of Criminal Procedure. Section 323 enables the Magistrate to commit a case even if the offences are not exclusively triable by the Sessions Court and thereby Section 209 of Code of Criminal Procedure is not a bar if the Magistrate is of the opinion that the case is to be tried by the court of Sessions. When the main case and counter case are to be tried by the same court to avoid conflicting of decisions, even if the offences in the counter case are not exclusively triable by the Sessions Court invoking the power provided under Section 323 of Code of Criminal Procedure, the Magistrate is competent to commit the case to Sessions Court, after complying with the provisions contained in Chapter XVIII of Code of Criminal Procedure. Petitioner is directed to appear before the Magistrate along with second accused immediately and seek an order for committal of the cases. The Magistrate is directed to consider whether Crl.M.C.No.1872/2009-B & W.P.(C) No.15723/2009-Q -6- C.C.No.663/2009 is to be tried along with the main case S.C.No.341/2005 and if so whether it is to be committed to the Sessions Court as provided in Section 323 of Code of Criminal Procedure and pass appropriate order in accordance with law. If the counter case is committed to the Sessions Court, the Sessions Judge is directed to make over the case to the same court where S.C.No.341/2005 is pending. If that be so, the Additional Sessions Court is to try the said case immediately after recording the evidence in S.C.No.341/2005. Learned Additional Sessions Judge (Adhoc-II), Ernakulam is directed to postpone the trial of S.C.No.341/2005 till then. M.SASIDHARAN NAMBIAR JUDGE dkr