IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.REF.No. 12 of 2010(S)
1. SUO MOTU
... Petitioner
Vs
1. B.V.CHANDRASEKHARA PAI
... Respondent
For Petitioner :..
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/12/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.Ref.12 OF 2010
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Dated 23rd December, 2010
O R D E R
Crime No.12/1997 of Badiadka
Police Station was registered for the
offences under Sections 143, 147, 148, 324
and 436 read with Section 149 of Indian
Penal Code in respect of the incident that
occurred on 20/1/1997 at Enmakaje Village,
based on the complaint filed by
B.V.Chandrashekhara Pai, first respondent.
Crime No.13/1997 was also registered in
respect of the same incident against the
first respondent and his brothers as the
accused for the offences under Sections
447, 324, 354 and 307 read with Section 34
of Indian Penal Code. Circle Inspector of
Police after completing investigation filed
Crl.Ref.12/10
2
final reports in both the crimes. They were
taken cognizance as C.P.47/1998 and
C.P.82/1997 by Judicial First Class
Magistrate, Kasargod. The respective cases were
committed to the Sessions Court and taken on
file as S.C.238/1999 and S.C.576/1999. While
so, first respondent filed a complaint before
Judicial First Class Magistrate, Kasargod
alleging that the investigation in Crime
No.13/1997 was partisan and three accused
were dropped without valid reasons and
alleging that the cognizance of the offences
are to be taken against those accused also.
Learned Magistrate, took cognizance for the
offences under Sections 447, 324, 354 and 307
read with Section 34 of Indian Penal Code as
C.P.189/1999. That case was thereafter,
committed to the Sessions Court. It was taken
Crl.Ref.12/10
3
on file as S.C.797/2000. When S.C.797/2000 was
sent to Assistant Sessions Judge for trial,
learned Assistant Sessions Judge found that
S.C.797/2000 was committed to the Sessions
Court, without complying with the provisions
of Sections 200 and 202 of Code of Criminal
Procedure and prima facie, the order of
committal is illegal. Learned Assistant
Sessions Judge, reported the matter to this
Court through the Sessions Judge. This suo motu
proceedings was thus initiated. Though notice
was ordered to first respondent, the
complainant in C.P.189/1999, he did not appear.
2. Learned Public Prosecutor was
heard.
3. After completing the investigation
in Crime No.12/1997 and Crime No.13/1997, final
reports were submitted. Cognizance of the
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offences were taken and those cases were
committed to the Sessions Court. They are now
pending as S.C.238/1999 and S.C.576/1999. De
facto complainant in S.C.238/1999 filed a
complaint alleging that three more accused have
also committed the offences and offences
committed include 354 and 307 of Indian Penal
Code also. It was taken cognizance by the
learned Magistrate as C.P.189/1999. The report
submitted by the Assistant Sessions Judge
establishes that learned Magistrate without
recording the statements of the complainant or
the witnesses, in violation of the provisions
of Sections 200 and 202 of Code of Criminal
Procedure, committed the case to the Sessions
Court.
4. Proviso to Sub Section 2 of Section
202 of Code of Criminal Procedure mandates that
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if it appears to the Magistrate in an enquiry
under Section 202 of Code of Criminal Procedure
that, the offences complained of is triable
exclusively by a Court of Sessions, he shall
call upon the complainant to produce all his
witnesses and examine them on oath. When the
learned Magistrate committed the case without
complying with the mandatory conditions
provided under Section 202, the order of
committal can only be quashed.
The order of committal passed by the
Judicial First Class Magistrate, Kasargod in
C.P.189/1999, taken cognizance by the Sessions
Judge as S.C.797/2000 on the order of committal
is quashed. C.P.189/1999 is remitted to the
learned Magistrate for fresh disposal in
accordance with law. Learned Magistrate shall
comply with the provisions of Sections 200/202
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of Code of Criminal Procedure. If the case is
to be committed to the Sessions Court,
Magistrate shall record statements of the
witnesses to be examined before the Sessions
Court as provided under proviso to Section
202(2) of Code of Criminal Procedure.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.