Nalinan vs State of Kerala and Others

Thomas P. Joseph, J.—Notice to Respondent No. 3 is returned with the endorsement that he expired. Other Respondents among Respondent Nos.2 to 6 are served of whom the second Respondent has appeared through counsel. Learned Public Prosecutor has take notice for the State.

This petition is filed u/s 407(1)(C) of the Code of Criminal Procedure (for short, "the Code") to issue a direction to the learned Judicial First Class Magistrate-I, Kollam to commit C.C. No. 151 of 2007 along with connected records to the Sessions Court, Kollam for trial. C.C. No. 151 of 2007 arose from the final report in Crime No. 62 of 2003 of the Kollam East Police Station for offence punishable u/s 498A of the Indian Penal Code (for short, "the IPC"). That case was registered on the complaint preferred by Aswathy (hereinafter referred as the deceased), wife of the second Respondent alleging that Respondents 2 to 6 subjected her to cruelty demanding more ornaments and money. Police submitted final report in that case on 28.03.2003. On 31.03.2003 the said Aswathy committed suicide. In regard to that incident, the Kollam East police registered Crime No. 277 of 2003 against Respondents 2 to 6 for offences punishable under Sections 306 and 304B r/w Section 34 of the IPC. Annexure-2 is the final report filed in that case against Respondents 2 to 6. That case was committed to the Court of Sessions and it is pending in the Court of learned Third Additional Sessions Judge, Kollam as S.C. No. 470 of 2006. While so Petitioner filed Crl. Tr. No. 2380 of 2010 before learned Sessions Judge requesting to transfer C.C. No. 151 of 2007 to the Court of learned Third Additional Sessions Judge. That petition was dismissed by Annexure-3, order dated October 01, 2010 for the reason that Respondents 2 to 6 who are affected by the transfer are not made parties to the said petition. In this proceeding, Petitioner requests for a direction to the learned Third Additional Sessions Judge to commit C.C. No. 151 of 2007 to the Court of Session. I have heard learned Counsel for Petitioner, second Respondent and the learned Public Prosecutor.

Apart from the power of the Magistrate to direct committal u/s 323 of the Code in situation of this nature where it is shown that the connected case is pending trial in the Court of Sessions, it is within the power of the High Court to issue such direction for committal in view of Section 407(1)(C)(iii) of the Code. By virtue of that power it is open to the High Court to direct that any particular case be committed for trial to the Court of Sessions. This position has been clarified by the Division Bench of this Court in Abdul Salam v. Sameera 2007 (1) KLT 592. The Division Bench has said that aggrieved party can apply to the High Court u/s 407(1)(iii) of the Code to direct the Magistrate to commit a case for trial to the Court of Sessions along with the connected cases.

Now the question is whether on the facts of the case such an order is required. Charge in both the cases concerned the (alleged) physical/mental cruelty to the deceased. In Crime No. 277 of 2003 the allegation is that cruelty has resulted in death of the deceased within seven years of her marriage with the second Respondent. Thus, allegation regarding cruelty in both the cases appeared to be the same. In that situation it is appropriate that the same Court tried and disposed of the cases. But, I am not issuing any direction as to whether the cases are clubbed together or, be tried and disposed of simultaneously. That is a matter which the learned Third Additional Sessions Judge has to decide having regard to the facts of the case and after hearing the parties as well.

Resultantly this criminal miscellaneous case is allowed. Learned Judicial First Class Magistrate-I, Kollam is directed to commit C.C. No. 151 of 2010 for trial to the Court of Sessions, Kollam who shall make over the case for trial to the Court of learned Third Additional Sessions Judge, Kollam where S.C. No. 470 of 2006 is pending. It is open to the parties to request the third Additional Sessions Judge for early disposal of the cases.