IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3211 of 2008()
1. SANTO,AGED 38,KOZHIPURAM HOUSE,
... Petitioner
Vs
1. STATE OF KERALA REP.BY PUBLIC PROSECUTOR
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :06/10/2008
O R D E R
R.BASANT, J.
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Crl.M.C.No.3211 of 2008
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Dated this the 6th day of October 2008
O R D E R
The short grievance of the petitioner, who along with the co-
accused faces indictment in a prosecution for offences punishable
inter alia Section 8 of the Kerala Abkari Act and under Section 307
read with 34 I.P.C, is that a counter case filed by him has not been
committed to the court of Session yet. But still the learned
Sessions Judge is making steps to expeditiously list the sessions
case that is S.C.No.50/07 for trial. At the time when this Crl.M.C
was filed, cognizance has not been taken in the counter case filed
by the complainant. Directions were issued to the learned J.F.C.M,
Mannarkkad. Report of the learned Magistrate now shows that
cognizance has already been taken now as C.C.No.248/08. The
matter stands posted for appearance of the accused to 31/12/2008,
it is submitted.
2. I am at a loss to understand why the learned Magistrate,
even after being appraised of the fact that the allegations are in
the nature of a case and counter case and that S.C.No.50/07, the
main case, is about to be listed for trial, posted the case to a distant
date, that is 31/12/2008. The learned Magistrate must have shown
a sense of urgency and must have attempted to expeditiously
Crl.M.C.No.3211/08 2
complete the proceedings in C.C.No.248/08. If, as a matter of fact,
C.C.No.248/08 and S.C.No.50/07 are in the nature of allegations
and counter allegations, the learned Magistrate must expeditiously
take steps to commit S.C.No.248/08 under Section 323 I.P.C. It will
be a traversity of justice, if the Sessions case were taken up for trial
and disposed of before the counter case, if that be a counter case, is
committed to the court of Session. The petitioner can apprise the
learned Magistrate of the need for expeditious action in
C.C.No.248/08. The learned Magistrate must advance the case, if
necessary and pass appropriate orders and consider the request to
commit the case as C.C.No.323 on merits. The petitioner can
request the learned Sessions Judge not to list S.C.No.50/07 for trial
on the ground that the same and C.C.No.248/08 are in the nature of
an allegation and counter allegation. The learned Sessions Judge
must also consider such request and take appropriate decision
before S.C.No.50/07 is listed for trial.
3. With the above observations, after considering the report
dated 29/9/2008 submitted by the learned Magistrate, this Crl.M.C
is dismissed.
Hand over copy of this order to the learned counsel for the
petitioner.
(R.BASANT, JUDGE)
jsr
Crl.M.C.No.3211/08 3
The petitioner is the first accused and he faces indictment in a
prosecution for offences punishable inter alia under Section 307
read with 34 I.P.C and Section 8 of the Kerala Abkari Act. The crux
of the allegations is that when the police officials came to the
premises of the petitioner he and his wife, the co-accused allegedly
indulged in culpable overt acts against the detecting police officials.
Investigation is complete. Final report has already been filed.
Cognizance has been taken. The case has been committed to the
court of Session. The case against the petitioner is pending as
S.C.No.50/07. The petitioner, in the meantime, has filed
C.M.P.No.5911/2003 alleging commission of offences punishable
inter alia under Sections 324, 354 and 506 (ii) read with 149 I.P.C.
The accused in that complaint are police officials who were
allegedly present in the party which detected the crime under the
Kerala Abkari Act. In that complaint,C.M.P.No.5911/2003, orders
under Section 203/204 Cr.P.C have not been passed so far. The
matter is dragging on. In these circumstances, the petitioner
apprehends that the trial in S.C.No.50/07 may be taken up even
before an order under Section 203/204 Cr.P.C is passed in the
private complaint filed by him. If cognizance is taken, it will be
necessary that the two cases are heard and disposed of by the same
court reckoning the allegations to be in the nature of allegations
and counter allegations.
Crl.M.C.No.3211/08 4
2. I am satisfied, in these circumstances, that there can be a
direction that the trial (examination of witnesses) in S.C.No.50/07
pending before the Additional Sessions Judge (Adhod-I), Palakkad
should not commence until further orders. The learned Judicial First
Class Magistrate Court, Mannarkkad shall be called upon to furnish
a report about the stage of the proceedings in C.M.P.No.5911/2003.
I need only mention that I expect the learned Magistrate to
complete the enquiry under Section 202 Cr.P.C as expeditiously as
possible and take appropriate decision under Section 203/204
Cr.P.C. In the report to be submitted, the learned Magistrate shall
inform the court the probable time that will be required to take
such decision under Section 203/204 Cr.P.C.
3. Await report of the learned Magistrate. Call on
15/9/2008.
(R.BASANT, JUDGE)
jsr
Crl.M.C.No.3211/08 5
Crl.M.C.No.3211/08 6
R.BASANT, J.
CRL.M.C.No. of 2008
ORDER
09/07/2008