IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 Crl.MC.No. 1001 of 2011() ------------------------- CC.136/2010 of CHIEF JUDL.MAGISTRATE COURT, ERNAKULAM .................... PETITIONER(S): ACCUSED NO.4: -------------------------------------------------- MAHESH SELVAN, S/O. SELVAN, AGED 26 YEARS, MARAKKAR LINE, HOUSE NO.XXXVI-1468, KALOOR, ERNAKULAM. BY ADVS. SRI.E.C.POULOSE, SMT.BOBBY RAPHEAL.C RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KALAMASSERY POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1001 of 2011 ==================================== Dated this the 31st day of May, 2011 O R D E R Petitioner is accused in C.C. No.136 of 2010 of the court of learned Chief Judicial Magistrate, Ernakulam arising from Crime No.316 of 2002 of Kalamassery Police Station. That case was registered and charge sheeted for offences punishable under Sections 143, 147, 148, 452 and 427 read with Section 149 of the Indian Penal Code (for short, “the IPC”) and Section 27 of the Arms Act. It is submitted that case was committed for trial to the Sessions Court, Ernakulam by the learned Judicial First Class Magistrate, Aluva in C.P. No.104 of 2003. Before the learned Sessions Judge to whom case was made over for trial, it was numbered as S.C. No.95 of 2004. I am told that committal and filing of S.C. No.95 of 2004 was only regarding accused 1 to 3. Learned Public Prosecutor submitted that learned Sessions Judge invoking power under Section 228 of the Code of Criminal Procedure (for short, “the Code”) made over the case to the learned Chief Judicial Magistrate, Ernakulam for trial since according to the learned Sessions Judge no offence under Sec.308 CRL.M.C. No.1001 of 2011 -: 2 :- of the IPC was made out. Learned Chief Judicial Magistrate, Ernakulam took the case on file as C.C. No.115 of 2004 and made over the case to the learned Judicial First Class Magistrate-II, Aluva for trial where it was numbered as C.C. No.1041 of 2007. Learned Public Prosecutor submitted that learned Magistrate issued summons to the accused including petitioner and proceeded against them. In the meantime, case against petitioner and fifth accused in L.P. No.12 of 2008 of the Sessions Court was refiled as S.C. No.492 of 2009 and that case was also made over to the learned Chief Judicial Magistrate under Sec.228 of the Code for trial refusing to charge sheet them under Sec.308 of the IPC. Learned Chief Judicial Magistrate numbered the case as C.C. No.136 of 2010. 2. Learned counsel for petitioner contends that petitioner has to face trial in two cases arising out of the final report in Crime No.316 of 2002 of Kalamassery Police Station and that is prohibited under Sec.300 of the Code. 3. In view of the above submissions made by learned counsel and Public Prosecutor I called for report from learned Judicial First Class Magistrate-II, Aluva through Registrar (Judicial) as to the present stage of C.C. No.1041 of 2007. The Registrar CRL.M.C. No.1001 of 2011 -: 3 :- (Judicial) has reported after getting information from the learned Judicial First Class Magistrate-II, Aluva that in C.C. No.1041 of 2007 learned Magistrate has pronounced judgment this day acquitting all the accused (as per the submission of learned counsel, it included petitioner also). 4. In view of that report it is not necessary to pass any orders in this petition since petitioner can raise appropriate contention before learned Chief Judicial Magistrate in C.C. No.136 of 2010 in view of the acquittal (he claims to have earned from the learned Magistrate) in C.C. No.1041 of 2007. If any such contention is raised, learned Chief Judicial Magistrate shall consider that contention and pass appropriate orders. Learned counsel submitted that petitioner is facing a non-bailable warrant from the court of learned Chief Judicial Magistrate, Ernakulam in C.C. No.136 of 2010. Learned Public Prosecutor submitted that the case is posted on 15.11.2011. Having regard to the circumstances stated it is directed that non-bailable warrant issued to the petitioner in C.C. No.136 of 2011 will stand in abeyance for a period of two months from this day or till petitioner appears before the learned Chief Judicial Magistrate, Ernakulam, whichever is earlier. If any application for bail/recall of warrant is CRL.M.C. No.1001 of 2011 -: 4 :- preferred by the petitioner, learned Chief Judicial Magistrate shall consider the same and pass appropriate orders as early as possible. Criminal Miscellaneous Case is closed with the above directions and without prejudice to other rights of petitioner. THOMAS P. JOSEPH, JUDGE. vsv