IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 Crl.MC.No. 1943 of 2009() ------------------------- AGAINST ORDER IN CMP NO.1642/2009 IN CC.931/2004 DAED 8-6-2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA .................... PETITIONER(S): PETITIONER/DEFACTO COMPLAINANT: ---------------------------------------------- J.STEPHEN, S/O.JESADIMA, NISHA BHAVAN, THOTTATHUVILAKOM, R.C.STREET, BALARAMAPURAM, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.N.P.PRAJEESH RESPONDENT(S): --------------- 1. WILFRED RAJ @ BIJU, S/O.REYMAND, THOTTAVILAKATHU VEEDU, R.C.STREET, ANTHIYOOR DESOM, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. 2. SELVARAJ, S/O.DASAN, PALLIVILAKATHU VEEDU, R.C.STREET, PALLICHAL VILLAGE, PALLICHAL DESOM, THIRUVANANTHAPURAM DISTRICT. 3. ANIL @ DWARA, S/O.ANTONY, THOTTATHUVILAKOM VEEDU, ANTHIYOOR DESOM, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. 4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R4 BY PUBLIC PROSECUTOR SRI.AMJAD ALI. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dkr M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 1943 of 2009 ================== Dated this the 16th day of June, 2009. O R D E R Petitioner is the defacto complainant in C.C.No. 931/2004 on the file of Judicial First Class Magistrate Court- III, Neyyattinkara. Respondents 1 to 3 are the accused. Petitioner filed C.M.P.No.1642/2009 under Section 323 of Code of Criminal Procedure to commit case to the Sessions Court contending that S.C.No.871/2005 is the counter case of this case and hence both the cases are to be tried by the same court. Under Annexure III order, the Magistrate dismissed the petition recording the statement of the Counsel appearing for the accused that S.C.No.871/2005 is not the counter case of this case and also for the reason that offences involved in C.C.No.931/2004 are exclusively triable by the Magistrate. This petition is filed under Section 482 of Code of Criminal Procedure to quash that order. Crl.M.C.No.1943/2009 -2- 2. Learned Counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. In view of the order to be passed in this petition, it is not necessary to issue notice to respondents 1 to 3. 4. Annexure III order does not contain a finding that prosecution case in this case is not in respect of the same incident involved in S.C.No.871/2005. If S.C.No.871/2005 is the counter case and C.C.No.931/2004 is the main case, both the cases are to be tried by the same court though not jointly but one after the other. Even if C.C.No.931/2004 is the counter case of the main case, both the cases are to be tried by the same court. It is necessary to avoid conflicting decisions. Though the main case and the counter case cannot be tried, they are to be tried by the same court one after other and the judgment in both the cases are to be pronounced on the same day, though the evidence in one case cannot be looked into in the other. Annexure III order does not show that the Magistrate considered the question Crl.M.C.No.1943/2009 -3- whether S.C.No.871/2005 and C.C.No.931/2004 are the main case and counter case. 5. The finding of the Magistrate that the case pending before him is exclusively triable by the Magistrate and therefore cannot be committed is also not correct. Though the case cannot be committed as provided under Section 209 of Code of Criminal Procedure, as the offence is not exclusively triable by the sessions court, Section 323 of Code of Criminal Procedure enables the Magistrate to commit the case to the sessions court, if he finds that the case is to be tried by the Sessions Court, though the offences involved are not exclusively triable by the sessions court and it is to be tried by the same sessions court. Unfortunately, the Magistrate did not consider the provisions under Section 323 of Code of Criminal Procedure while disposing the application. 6. Petition is allowed. Annexure III order is quashed. CMP No.1642/2009 is remitted to Judicial First Crl.M.C.No.1943/2009 -4- Class Magistrate Court-III, Neyyattinkara to consider it afresh after hearing the parties. Magistrate to see whether the prosecution case in S.C.No.817/2005 and the case of the petitioner in C.C.No.931/2004 are the two different versions of the same incident and both the cases are to be tried by one court. The Magistrate to dispose the petitions in the light of the provisions of Section 323 of Code of Criminal Procedure. M.SASIDHARAN NAMBIAR JUDGE dkr