IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 Crl.MC.No. 2612 of 2006() ------------------------- AGAINST THE ORDER DATED 08/05/2006 IN CMP 667/2006 IN CC.176/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... PETITIONER(S): RESPONDENTS/ACCUSED: ----------------------------------- 1. THOMAS, S/O.OOMMEN KOCHUMMEN, IDIKKANAM PARAMBIL, PRAYAR, PANDANAD VILLAGE, CHENGANNUR. 2. SONA, S/O. THOMAS, -DO- -DO-. BY ADV. SRI.P.HARIDAS RESPONDENT(S): STATE/COMPLAINANT: --------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, CHENGANNUR. 3. SMT.SARASAMMA, W/O.CHELLAPPAN, MELETH HOUSE, KOLADATHUSSERY, THIRUVANVANDOOR, CHENGANNUR. ADV. SRI.N.ASHOK KUMAR FOR R3 R1 & R2 BY P.P.SRI.C.M.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------- Crl.M.C.No.2612 of 2006 ----------------------------------- Dated this the 15th day of February, 2010 ORDER This petition is filed to quash Annexure-1 order. As per Annexure-1 order learned Magistrate found that the trial of C.C.176 of 2002 ought to be conducted by Sessions Court, since there is a case and counter case in respect of the same incident. Therefore, an order was passed committing the case to the Sessions Court along with the other case which was pending as C.P. 5/2003. 2. Learned counsel for the petitioner submitted that the case was instituted against petitioner as early as in 2002 alleging the offence under Sections 323, 324, 447, 506(II) read with Section 34 IPC and evidence was also closed. But at the fag end of trial a petition was filed by complainant stating that the case ought to be committed to Sessions Court, since there is another crime registered against complainant and her husband in respect of same incident. According to petitioner, there is no justification in committing the case at the belated stage. Learned counsel for the third respondent submitted that there is a case and counter case in respect of the same incident 2 and hence as per law, both cases have to be tried by the same court. Therefore, no interference is called for in the Annexure-1 order, it is submitted. 3. On hearing both sides and on going through Annexure-1 order, I find that there is no scope for interference. It is seen from the said order that a case and counter case registered in respect of the same occurrence. The main case is registered on the basis of a complaint made by first accused herein against defacto complainant and her husband alleging offence under Section 307 IPC. The complainant in this case filed a counter case stating that petitioners committed offences u/Ss. 323,324,447,506(ii) read with Sec.34 IPC against her and husband. There is no dispute that both cases are in the nature of a case and counter case. It is well settled that if a case and counter case are pending in respect of same incident, both the cases are to be tried and disposed of by the same court. 4. Therefore, there is no illegality in committing the present case along with the main case under Sec. 323 of Cr.P.C as the trial court found that the delay in committing the case may not be relevant. In fact, the committal will only be to the benefit of petitioners. Learned counsel for petitioners submitted 3 that the entire evidence is over and they may be allowed to recall witnesses and re-examine them before the Sessions Court, if necessary. 5. On hearing both sides, I find that if any request is made for recalling any witness or witnesses Sessions Judge shall consider such request and pass appropriate order, as he may deem fit and proper, in accordance with law. However, there is no ground to set aside Annexure A1 order. In the result this petition is dismissed. K.Hema, Judge cms