High Court Kerala High Court

Suo Motu vs B.V.Chandrasekhara Pai on 23 December, 2010

Kerala High Court
Suo Motu vs B.V.Chandrasekhara Pai on 23 December, 2010
       

  

  

 
 
  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.

           ---------------------------------------------
                CRL.Ref.12 OF 2010
           ---------------------------------------------
           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

Crl.Ref.12/10
4

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

Crl.Ref.12/10
5

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

Crl.Ref.12/10
6

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.