Kerala High Court
Suo Motu vs Odamoola Anthru on 29 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
CRL.R.C NO. 1 OF 2021
AGAINST THE ORDER DATED 29.04.2008 STC 1451/2004 OF
JUDICIAL MAGISTRATE OF FIRST CLASS, MANANTHAVADY, WAYANAD
COURT ON ITS OWN MOTION:
SUO MOTU
PROCEEDINGS WITH REGARD TO ORDER DATED
29.04.2008 OF THE JFCM-I, MANANTHAVADY IN STC
1451/2004.
RESPONDENTS:
1 ODAMOOLA ANTHRU
S/O. MOIDEEN, ODAMOOLA, VALLIKULANGARA,
MAKKIYAD POST, MANANTHAVADY, WAYANAD - 670 731.
2 AMMOTTY
S/O. ANTHRU, VAZHAYIL HOUSE, 12TH MILE, P. O.
MAKKIYAD, MANANTHAVADY TALUK - 670 731.
3 STATE OF KERALA
BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA
R3 BY SRI.M.C.ASHI, PUBLIC PLEADER
THIS CRIMINAL REVISION CASE HAVING COME UP FOR
FINAL HEARING ON 29.10.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2
Crl.Rev.Case No. 1 of 2021
P.G. AJITHKUMAR, J.
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Criminal Revision Case No. 1 of 2021
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Dated this the 29th day of October, 2021
ORDER
This suo motu revision was initiated under Section 401
of the Code of Criminal Procedure, 1973 on the basis of a
letter of the Chief Judicial Magistrate, Kalpetta, who forwarded
a report of the Judicial First Class Magistrate-I, Mananthavady.
2. The report reveals that the 1st respondent, who
was prosecuted for an offence punishable under Section 138
of the Negotiable Instruments Act, stood convicted and
sentenced to undergo imprisonment till the rise of the court
and to pay compensation of Rs.22,000/- under Section 357(3)
of the Code of Criminal Procedure, 1973. In the appeal,
Criminal Appeal No.210 of 2005, preferred by the 1 st
respondent, the Additional Sessions Court(ADHOC)-I, Kalpetta
confirmed the conviction and sentence. The 1 st respondent
preferred Crl.R.P.No.4566 of 2006 before this Court, which
was also dismissed by order dated 15.07.2015.
Crl.Rev.Case No. 1 of 2021
3. The sentence was pending execution. While so, on
05.08.2017, taking note of the fact that a warrant for arrest
was pending against the accused, his counsel appeared and
submitted before the learned Magistrate that the case against
him was withdrawn by the complainant, and therefore, he was
acquitted by the Magistrate under Section 257 of Cr.P.C. as
per order dated 29.04.2008. While the conviction and
sentence of the 1st respondent were in force, such an
application happened to be entertained by the learned
Magistrate, resulting in his acquittal under Section 257 of the
Cr.P.C. Pointing out that infirmity, a report was submitted,
based on which, this suo motu revision was initiated.
4. On admitting the revision, notice was given to the
1st respondent and the learned Public Prosecutor. The 2 nd
respondent, who is the complaint in the case, is no more. The
matter being related to the legality of the proceedings in S.T.
Case No.1451 of 2004 on the files of the Judicial First Class
Magistrate Court-I, Mananthavady, where the conviction and
sentence of the accused has become final, the matter can be
Crl.Rev.Case No. 1 of 2021
decided without giving notice to the legal heirs of the 2 nd
respondent, who was the complainant.
5. Heard the learned Public Prosecutor Sri.M.C.Ashi. The
1st respondent remained absent.
6. The order dated 29.04.2008 was happened to be
passed, whereby the 1st respondent/accused was acquitted
under Section 257 of Cr.P.C., without noticing the judgment of
the Magistrate convicting and sentencing the 1 st respondent in
the case for an offence punishable under Section 138 of the
N.I.Act. The conviction and sentence were subsequently
confirmed by the Additional Sessions Court (Adhoc)-I,
Kalpetta by its judgment dated 14.11.2006 in Criminal Appeal
No.210 of 2005. Criminal Revision Petition No.4566 of 2006
filed before this Court by the 1 st respondent was disposed of
by order dated 15.07.2015 confirming the conviction and
sentence, but by granting three months time to make
payment of the compensation amount.
7. Criminal Revision Petition No. 4566 of 2016
challenging the conviction and sentence of the 1 st respondent
Crl.Rev.Case No. 1 of 2021
was filed before this Court in 2006. During its pendency, the
learned Magistrate entertained and allowed an application
filed by the complainant/2nd respondent under Section 257
Cr.P.C., resulting in an order of acquittal of the 1 st
respondent/accused.
8. In State of Punjab v. Davinder Pal Singh
Bhullar and Others, etc., AIR 2012 SC 364 the Apex Court
held that the criminal justice delivery system does not clothe
the court to add or delete any words, except to correct the
clerical or arithmetical error as specifically been provided
under the statute itself after pronouncement of the judgment
as the judge becomes functus officio. In the instant case, the
learned Magistrate allowed the application filed under Section
257 of Cr.P.C. much after his pronouncing the judgment of
conviction and sentence. Therefore, the judgment has the vice
of lack of jurisdiction.
9. It is to be noted that while Criminal Revision
Petition No.4566 of 2006 was pending before this Court, the
learned Magistrate allowed the application under Section 257
Crl.Rev.Case No. 1 of 2021
Cr.P.C. For that reason also the learned Magistrate lacked
jurisdiction for entertaining that application. Hence I hold that
the order of the Magistrate dated 29.04.2008 under Section
257 of Cr.P.C. is illegal and liable to be set aside.
The Criminal Revision Case is allowed and the order
dated 29.04.2008 under Section 257 of Cr.P.C. of the Judicial
First Class Magistrate-I, Mananthavady in Summary Trial case
No. 1452 of 2004 is set aside.
Sd/-
P.G. AJITHKUMAR, JUDGE
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