IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 CRL.REF.No. 7 of 2009() ----------------------- CP.6/2008 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOTTAYAM .................... SUO MOTU RESPONDENT(S): ---------------------------- 1. STATE OF KERALA. 2. PRADEEP, VAZHAVELIL HOUSE, KILIROOR KARA, THIRUVARPU VILLATE (A1). 3. PRAMOD, .......DO..... (A2) 4. GAFOOR @ ALIYARKUTTY, KILIROOR KARA, ARUPATHIL, THIRUVARPU VILLAGE (A3). 5. ABDUL LATHEEF, THURUTHUMALYIL, ...DO... (A4). 6. RAJAN, MOOLASSERIL HOUSE, KANJIRAM BHAGOM, VELOOR VILLAGE (A5). 7. BIJU, ....DO... (A6). 8. BINU, ....DO....(A7). 9. PRADEEP, IRAVUKERIL, VECHOOR VILLAGE (A8). 10. ABHILASH, THAIPARAMBIL, ...DO... (A9). 11. KOCHUMON @ SUBAIKUTTY, KILIROOR KARA, CHERUPANITHARA, THIRUVARPU VILLAGE (A10). 12. SANAL KUMAR @ KOCHUMON, KALATHIL HOUSE, ..DO...(A11) 13. SALIM, SALIM MANZIL, THIRUNAKKARA KARA, KOTTAYAM VILLAGE (A12). R1 BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL REFERENCE HAVING COME UP FOR ADMISSION ON 21/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ================================ CRL.REFERENCE No. 7 OF 2009 ================================ Dated this the 21st day of May,2009 ORDER As per order dated 28.7.2008 in C.P.6/2008 Judicial First Class Magistrate-III, Kottayam committed the case to the Sessions Court. The offence against the accused was under section 55B of Kerala Abkari Act. Learned Magistrate while committing the case did not consider the question whether an offence under section 55B of Kerala Abkari Act is exclusively triable by Sessions Court. When the mistake was found out by the Additional Sessions Judge, to whom the case was made over for trial, Sessions Judge pointed out the mistake. As the Sessions Court is not competent to interfere with the order of committal he addressed this court and the criminal reference case was registered. 2. Learned Public Prosecutor was heard. Crl..Ref..7/2009 2 3. True an offence under section 55B of Abkari Act is not exclusively triable by a Sessions Court. The question is whether for that reason the order of committal is to be quashed. 4. Section 228 of Code of Criminal Procedure provides the procedure to be adopted by Sessions Judge, if after consideration and hearing the Public Prosecutor and the defence he is of the opinion that there is ground for presuming that the accused has committed an offence not exclusively triable by a court of session. Under clause (a) of sub section (1) of Section 228, if after such consideration and hearing the Sessions Judge is of opinion that there is ground for presuming that the accused has committed an offence not exclusively triable by a court of Session, he may frame charge against the accused and by order transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate of the first class and direct the accused to appear before that court and Crl..Ref..7/2009 3 thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report. In the light of Section 228 eventhough the order of committal is not legal, I find it not necessary to quash the order of committal. The learned Sessions Judge is directed to proceed as provided under section 228(1)(a) of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006