IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 CRL.REF.No. 7 of 2008() ----------------------- SC.13/1997 of ADDL. ASST. SESSIONS COURT, KOZHIKODE CC.756/1996 of J.M.F.C.-V,KOZHIKODE .................... LETTER NO.A4/4881/08 FROM THE SESSIONS JUDGE KOZHIKODE. OFFICE NOTE PLACED BEFORE THE HON'BLE MR. JUSTICE P.R.RAMAN WITH ORDER DATED 10/7/08. OFFICE NOTE PLACED BEFORE THE HON'BLE C.J. WITH ORDER DATED 15/7/08. THIS CRIMINAL REFERENCE HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- Crl.Ref. No. 7 of 2008 ------------------------------------------------- Dated this the 22nd day of September, 2008 ORDER This proceeding has been registered on the basis of a communication dated 13/6/08 received from the learned Sessions Judge, Kozhikode. The learned Sessions Judge in the said report has narrated the facts in detail. Final report was filed in Crime No.197/95 of the Feroke Police Station before the learned Judicial First Class Magistrate-V, Kozhikode, alleging offences punishable, inter alia, under Sec.307 read with Sec.34 IPC. Order of committal was passed. The Court of Sessions took cognizance of the same and made over to the II Additional Assistant Sessions Judge, Kozhikode, before whom the matter was pending as S.C.No.177/96 (later renumbered as S.C.No.13/97?). Crl.R.P.13/97 was filed before this Court by the de facto complainant. But the same was dismissed by Crl.Ref. No. 7 of 2008 -: 2 :- another Bench of this Court as per the order dated 19/1/07 in Crl.R.P.No.13/97. A counter case was pending before the learned Judicial First Class Magistrate-V as C.C.No.756/96 and an application was filed before the Court of Sessions, Kozhikode (Vacation Bench) under Sec.408 Cr.P.C. “to transfer C.C.NO.756/96 to the II Additional Assistant Sessions Judge, Kozhikode, before whom the Sessions Case was pending”, the case being in the nature of case and counter case. By the order dated 16/4/03, the same was allowed and a direction was issued that C.C.No.756/96 be transferred to the II Additional Assistant Sessions Court, Kozhikode, for trial along with the main case. 2. When the case was received on transfer, it was noted that an error had been committed by the Vacation Judge in directing transfer without passing an appropriate order under Sec.323 Cr.P.C. to commit the case to the Court of Session. In view of the order passed by the Sessions Court to transfer the case, the learned Magistrate had only transferred the case and had not passed a proper order of committal under Sec.323 Cr.P.C. It is on realising this inadequacy that the letter has Crl.Ref. No. 7 of 2008 -: 3 :- been sent by the learned Sessions Judge. As per the order of the learned Judge in administrative charge of the District, this Crl. Reference has been registered. 3. I have no hesitation to agree that the direction for transfer issued as per the order dated 16/4/03 in Crl.M.P.No.665/03 by the Vacation Judge in the Court of Session, Kozhikode, is incorrect. There could only have been a direction to commit the case under Sec.323 Cr.P.C. to the Court of Session on which order of committal alone the Sessions Court can be said to have jurisdiction to take cognizance as stipulated under Sec.193 Cr.P.C. The order passed by the learned Vacation Judge in Crl.M.P.No.665/03 on 16/4/03 and all further steps taken in pursuance of the same deserves to be set aside invoking the powers available to this Court. 4. In the result, this reference is answered. The order dated 16/4/03 in Crl.M.P.No.665/03 passed by the Vacation Judge in the Court of Session, Kozhikode, is modified and it is directed that the learned Judicial First Class Magistrate-V, Kozhikode, shall take necessary steps under Sec.323 Cr.P.C. to Crl.Ref. No. 7 of 2008 -: 4 :- commit C.C.No.756/96 to the Court of Session in accordance with law. The learned Sessions Judge shall forward the records forthwith to the learned Judicial First Class Magistrate-V, Kozhikode, who shall thereupon take necessary steps to pass an order of committal under Sec.323 Cr.P.C. in C.C.No.756/96 to the Court of Session, Kozhikode. The Court of Session shall thereupon take immediate steps to take cognizance of the Sessions Case and ensure that the same is tried along with the main case. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.Ref. No. 7 of 2008 -: 5 :-