IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1898 of 2009()
1. SAIDALIKUTTY, S/O. ENI,
... Petitioner
2. MANIKANDAN, S/O. MADHAVAN,
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. NOORUDHEEN, S/O. HYDRES,
3. MANSOOR, S/O. UNNEENKUTTY MUSLIAR,
4. MUHAMMED IQBAL, S/O. UNNEENKUTTY,
5. MUSTAFA, S/O. HYDRES, CHOLAYIL HOUSE,
For Petitioner :SRI.BABU S. NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :22/06/2009
O R D E R
M.SASIDHARAN NAMBIAR, J.
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Crl.M.C. No. 1898 of 2009-D
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Dated this the 22nd day of June, 2009.
O R D E R
Petitioners are accused 2 and 3 in Crime No.525/2008
of Valanchery Police Station pending before the Sessions
Court, Manjeri as S.C.No.110/2009. The offences alleged
are under Sections 143, 147, 148, 341, 323, 324 and 398
read with Section 149 of Indian Penal Code. Petitioners are
the injured in Crime No.526/2008, which is now pending for
trial before Judicial First Class Magistrate Court, Tirur as
C.C.No.758/2008 for offences under Sections 341, 323 and
324 read with Section 149 of Indian Penal Code.
2. Petitioners originally filed Annexure C application
before the Magistrate under Section 323 of Code of
Criminal Procedure to commit the case to the Sessions
Court contending that it is to be tried by the Sessions Judge
as the main case S.C.No.110/2009 is being tried by the said
court. Petitioners later withdrew the application and this
Crl.M.C.No.1898/2009-D
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petition is filed under Section 482 of Code of Criminal
Procedure contending that there should be a direction to
the Magistrate to commit C.C.No.758/2008 to the Sessions
Court, where S.C.No.110/2009 is being tried.
3. Learned Counsel appearing for the petitioners
and learned Public Prosecutor were heard.
4. Learned Counsel appearing for the petitioners
submitted that though there is a slight difference in the
time of the incident involved in Crime Nos.525 and 526 of
2008 as alleged by the prosecution, both are in respect of
the same incident and therefore both are to be tried by the
same court. Learned Counsel argued that though the
offences in Crime No.526/2008 are not exclusively triable by
the Sessions Court, as the counter case is also to be tried by
the same court, it is to be committed under Section 323 of
Code of Criminal Procedure. The learned Counsel also
argued that in such circumstances the case is to be
committed to the Sessions Court. Learned Counsel further
Crl.M.C.No.1898/2009-D
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argued that even if a strict view is to be taken because of
the difference of time of the incidents and it is stated that
Crime No.525/2008 is not the counter case of Crime
No.526/2008, as the case of the petitioners is that both the
incidents are the same, the learned Magistrate can
committee the case under Section 323 of Code of Criminal
Procedure.
5. Learned Public Prosecutor on instructions
submitted that crime No.526/2008 is not the counter case of
crime No.525/2006. Learned Public Prosecutor pointed out
that the incident occurred at two different places and time
and therefore the cases are not the main case and counter
case and need not be tried by the same judge and so the
petition is only to be dismissed.
6. Section 323 of Code of Criminal Procedure
enables the Magistrate to commit a case being tried by him,
even if the offences are not exclusively triable by the
Sessions Court, if he is satisfied that it is a case to be tried
Crl.M.C.No.1898/2009-D
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by the Sessions Court. When the offences in the counter
case are not exclusively triable by the Sessions Court, if it is
to be tried by the same court where main case is being
tried, Magistrate is bound to commit the case under Section
323 of Code of Criminal Procedure to the Sessions Court.
But if the case pending before the court is not another
version of the same incident, which is being tried by the
Sessions Court, this Court cannot compel the Magistrate to
commit the case invoking the power under Section 323 of
Code of Criminal Procedure. In such circumstances, I do
not find any reason to give a direction as sought for by the
petitioners. Petition is dismissed.
M.SASIDHARAN NAMBIAR
JUDGE
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