IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 Crl.Rev.Pet.No. 2589 of 2004() ------------------------------ CR.R.P.52/2002 of SESSIONS COURT, KOZHIKOE CC.127/1998 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... REVN. PETITIONER(S)/PETITIONER/RESPONDENT/ACCUSED: -------------------------------- MOHAMMEDKUTTY @ KUNHAN, S/O. KUNHALAVI HAJI, KUNIYIL THEKKETHODI HOUSE, VELIPROM AMSOM, DESOM, RAMANATTUKARA. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): ----------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. P.P. ABOOBACKER, S/O. KUTTIALI, PUTHENPEEDIAKAL HOUSE, VELIPRAM AMSOM AND DESOM, RAMANATTUKARA. ADV. SRI.DEVAPRASANTH.P.J. FOR R2 PUBLIC PROSECUTOR ADV. SRI. C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.R.P.NO. 2589/2004 ORDER ON CRL.M. APPLICATION NO. 12038/2004 IN CRL. R.P.NO. 2589/2004 DISMISSED. SD/- THOMAS P. JOSEPH, JUDGE. 16.10.2008 /TRUE COPY/ P.A. TO JUDGE. vkm THOMAS P. JOSEPH, J. ------------------------------ CRL. R. P. No. 2589 of 2004 --------------------------------------- Dated this the 16th day of October, 2008 O R D E R Revision petitioner faced trial in the court of learned Judicial First Class Magistrate-V, Kozhikode for the offence punishable under Section 324 of the Penal Code. The charge is that on 29/07/1997 at about 10.30 A.M. he voluntarily caused hurt to the second respondent with granite stone. Prosecution examined the second respondent as PW1. PWs 2 and 3 were examined to prove alleged incident. PW5 proved the injuries allegedly sustained by the second respondent. PW9 conducted investigation. Exhibit P3 is the mahazar for scene of occurrence. M.O.1, granite stone allegedly used by the revision petitioner to inflict injury on the second respondent and said to be produced by PW3 was seized as per Exhibit P2. Learned magistrate considered the evidence and observed that on the information given by revision petitioner, case was registered against PWs 1 to 3 as Crime No.112 of 1997, did not place reliance on the evidence of PWs 1 to 3 and acquitted the revision petitioner. That acquittal was challenged CRL. R. P.No. 2589 / 2004 2 before learned Session Judge, Kozhikode in revision under Section 397 of the Code of Criminal Procedure. Learned Sessions Judge found that the acquittal was not proper, set aside the acquittal and remanded the case to the learned magistrate for fresh disposal. Since it was pointed out that the case against PW1 and others is pending, learned Sessions Judge observed that the said case could be tried simultaneously with this case. The remand order is challenged by the revision petitioner. 2. Heard both sides. 3. Perused the records. 4. Learned counsel for revision petitioner contended that learned Sessions Judge has treated the matter as if it was an appeal re- appreciating the entire evidence. According to the learned counsel for second respondent, though it was not brought to the notice of learned Sessions Judge at the time of disposal of the revision, in the case registered on the information given the revision petitioner only the second respondent was charge sheeted and that case ended in acquittal of the second respondent as per judgment dated 6/12/2001. Learned CRL. R. P.No. 2589 / 2004 3 counsel contented that if so, PWs 2 and 3 could not be said to be interested in favour of the second respondent or enimical to the revision petitioner. 5. PWs 1 to 3 claimed that revision petitioner voluntarily caused hurt to PW1 with M.O.1. Going by judgment of the learned magistrate it would appear that acquittal of the revision petitioner was for the reason that PWs 1 to 3 were involved in Crime No.112 of 1997. PW9, who investigated Crime No.112 of 1997 also stated that the said case was registered for alleged assault of revision petitioner. In Pylan Vs. State of Kerala [1992(2) K.L.T. 661] non explanation of injuries sustained by accused and non production of F.I.R, wound certificate and another documents concerning the injury allegedly suffered by the accused was found to be fatal. But in this case, it is conceded by the revision petitioner that in Crime No. 112 of 1997, final report was submitted only against the second respondent. It is also not in dispute that revision petitioner did not challenge the action of the police not submitting final report against PWs 2 and 3 in Crime No. 112 of 1997. He has also not challenged the acquittal of the second respondent for CRL. R. P.No. 2589 / 2004 4 allegedly assaulting him. Therefore, mere registration of Crime No.112 of 1997 could not be a ground to interfere with the order passed by the learned Sessions Judge. 6. On the contention that learned Sessions Judge has treated the matter as an appeal, I find that learned Sessions Judge has not appreciated the evidence and instead only directed for fresh disposal of the case after consideration of the evidence. Sitting in revision, I do not find any illegality or irregularity in that stand of learned Sessions Judge in setting aside the acquittal. Therefore interference is not called for. Learned magistrate will consider the evidence untrammeled by any of the observations contained in the remand order passed by the learned Sessions Judge. It will be open to the revision petitioner to adduce evidence regarding the injuries if any suffered by him allegedly at the hands of PWs 1 to 3. It will also be open to him to request the learned magistrate to recall any of the prosecution witnesses already examined, for further cross examination. With the above observations, the revision petition is CRL. R. P.No. 2589 / 2004 5 dismissed. Parties shall appear in the trial court on 5/12/2008 . Criminal Miscellaneous Application No. 12038 of 2004 shall stand dismissed. THOMAS P. JOSEPH, JUDGE scm