Unnikrishnan @ Aniyan vs State of Kerala

Thomas P. Joseph, J.—This Criminal Miscellaneous Case is filed challenging order dated 27.05.2011 in S.C. No. 373 of 2011 of learned Sessions Judge, Kottayam framing charge against Petitioner under Sections 120B, 447, 341, 302 and 201 read with Section 34 of the Indian Penal Code.

It is pointed out by learned Public Prosecutor that the petition itself is not maintainable since a party seeking discharge has to file a revision against the order framing charge.

Challenge to the order framing charge in this case if accepted, would terminate the proceeding in favour of Petitioner. If that be so, the order framing charge is a final order revisable under Sections 397(1) and 401 of the Code of Criminal procedure (for short, "the Code"). If, on the other hand even if the challenge is accepted, proceeding would not terminate in favour of Petitioner but he will be charged for a different offence it cannot be said that the order framing charge is a final order so that it is revisable (See Prabhakaran v. Excise C.I. 1992 (2) KLT 860). In such case remedy is to challenge the order u/s 482 of the Code. In this case the contention is that charge ought not have been framed against Petitioner. If that contention is accepted Petitioner is to be discharged. Hence in my view the order is revisable u/s 397(1) and 401 of the Code.

At the time of hearing learned Counsel has not addressed argument about correctness of the order framing charge and hence it is not necessary to go into that question.

Counsel submitted that the case is scheduled for trial from 08.07.2011 till 27.07.2011. It is submitted that there are three accused including Petitioner and each of the accused are represented by separate counsel of whom, one belongs to Ernakulam. It is submitted that there is some inconvenience for the counsel at Ernakulam to take part in the trial of the case scheduled from 08.07.2011. Learned Counsel submits that it would be convenient if the case is scheduled for trial from the first week of August, 2011. I have heard learned Public Prosecutor also.

Essentially that is a matter which learned Sessions Judge has to decide. At the same time inconvenience of the counsel also has to be looked into. I make it clear that it is open to the Petitioner to move appropriate application before learned Sessions Judge in advance (at any rate within one week from this day) explaining the difficulties and requesting to reschedule the trial. If any such application is filed learned Sessions Judge shall, after hearing the Public Prosecutor also pass appropriate orders taking note of the difficulties expressed by the counsel for Petitioner and in the light of observations made above.

Criminal Miscellaneous Case is disposed of as above.