Shanavas vs Kerala State

Thomas P. Joseph, J.—Third accused in C.P. No. 45 of 2010 of the court of learned Judicial First Class Magistrate-I, Aluva is the Petitioner in this proceeding, seeking to quash Annexure-C, order dated 29.11.2010 converting the case as C.P. No. 45 of 2010 u/s 323 of the Code of Criminal Procedure (for short, "the Code").

Petitioner, along with others was charge sheeted by the Thrikkakara Police in Crime No. 220 of 2004 for offences punishable under Sections 379 and 413 read with Section 34 of the Indian Penal Code (for short, "the IPC"). Accused 1 and 2 did not appear and hence the case against them was split up. Petitioner/third accused appeared and the case against him was taken on file as C.C. No. 1537 of 2004. Witnesses for the prosecution were examined and Petitioner was questioned u/s 313 of the Code. Case was taken for judgment. At that time learned Magistrate noticed that offence u/s 413 of the IPC is exclusively triable by the court of Session and thereon, by the impugned order converted the proceeding into C.P. No. 45 of 2010 obviously for the purpose of committing the case to the court of Session for trial. Learned Counsel submitted that it is after the trial was over that learned Magistrate has passed the impugned order and that at any rate, apart from (mis)quoting Section 413 of the IPC there is nothing to show that Petitioner is a habitual offender so that the case is to be committed to the court of Session for trial. Learned Public Prosecutor would contend that there is no reason to interfere with the impugned order.

u/s 323 of the Code if in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the court of Session he shall commit it to the court of Session under the provisions contained in the Code. Section 413 of the IPC is an offence which is triable by a court of Session. The mere fact that witnesses for prosecution were examined does not take away the power and duty of learned Magistrate u/s 323 of the Code.

Then the question is whether as contended by learned Counsel there is only misquoting of Section 413 of the IPC in the final report. It is stated in the final report that accused 2 and 3 are involved in a few other cases also(details are given) which are under investigation and that offence u/s 413 of the IPC is also involved. I find that the court charge also mentions offence u/s 413 read with Section 34 of the IPC. Apparently, no objection was raised by Petitioner at the time learned Magistrate framed charge u/s 413 of the IPC. Now the contention is that materials on record do not warrant a charge u/s 413 of the IPC. That is a matter which the Sessions Court can consider while framing charge u/s 228 of the Code. u/s 323 of the Code what the learned Magistrate has to consider is only whether it appears to the learned Magistrate that the case is one which ought to be tried by the court of Session. Since Petitioner has an opportunity to contend before the Sessions Court that no offence u/s 413 of the IPC is involved while he is heard on framing charge u/s 228 of the Code, there is no reason why this Court should interfere with the impugned order.

Resultantly without prejudice to the right if any of Petitioner to contend before the Sessions Court that no offence u/s 413 of the IPC is involved and no charge could be framed for the said offence, this Criminal Miscellaneous Case is dismissed.