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Judgment
M. Sasidharan Nambiar, J.—Petitioners are the accused in S.C. No. 230/2010 on the file of Sessions Court, Kottayam, taken cognizance for the offences under Sections 452, 341, 323, 324 and 308 read with Section 34 of Indian Penal Code.
Learned Counsel appearing for the Petitioners and learned Public Prosecutor were heard.
Based on Annexure-II final report submitted u/s 173(2) of Code of Criminal Procedure in Crime No. 430/2007, learned Judicial First Class Magistrate, Kanjirappally took cognizance of the offences under Sections 452, 341, 323, 324 and 308 read with Section 34 of Indian Penal Code. Contending that Investigating Officer did not properly investigate the case and an offence u/s 308 of Indian Penal Code is also involved, second respondent, the de facto complainant, filed Annexure-III complaint before Judicial First Class Magistrate''s Court, Kanjirappally. Learned Magistrate, after conducting an inquiry u/s 202 of Code of Criminal Procedure, by Annexure-IV order, took cognizance of the offences under Sections 452, 341, 323, 324 and 308 read with Section 34 of Indian Penal Code.
Learned Counsel appearing for the Petitioners submitted that subsequently, as the offence u/s 308 of Indian Penal Code is exclusively tribal by the Sessions Court, learned Magistrate committed the case to the Sessions Court and it is now pending as S.C. No. 230/2010. Though learned Counsel appearing for the Petitioners argued that learned Magistrate should not have taken cognizance of the offence u/s 308 of Indian Penal Code, on the materials, I cannot agree with the submission. Petitioners are entitled to raise all the contentions before the learned Sessions Judge and seek an order of discharge u/s 227 of Code of Criminal Procedure. If C.C. No. 763/2008, pending before Judicial First Class Magistrate''s Court, Kanjirappally, is in respect of the same incident, necessarily, that case also has to be committed to the Sessions Court as provided u/s 323 of Code of Criminal procedure. It is up to the Prosecutor or the Petitioners to point out this fact to the learned Magistrate so as to exercise the jurisdiction u/s 323 of Code of Criminal Procedure.
Petition is disposed granting liberty to the Petitioners to raise all the contentions raised herein and seek an order of discharge u/s 227 of Code of Criminal Procedure.