Kerala High Court
Kuthiralamuttam Saji vs State Of Kerala on 16 October, 2023
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
CRL.MC NO. 4045 OF 2021
AGAINST THE ORDER/JUDGMENT CP 14/2020 OF JUDICIAL
MAGISTRATE OF FIRST CLASS, PAYYANNUR
PETITIONER/S:
1 KUTHIRALAMUTTAM SAJI, AGED 39 YEARS
S/O PRABHAKARAN, KALATHUVAY,P.O. PRAPOYIL,
KANNUR DISTRICT-670511.
2 MANOJ M.T., AGED 31 YEARS
S/O KUNHAPPAN NAIR, KALATHUVAY,
P.O.PRAPOYI, KANNUR DISTRICT-670511.
3 PRASANTH NADATHIPARAMBIL, AGED 35 YEARS
S/O MADAHAVAN, PERUNTHADAM, PRAPOYIL P.O,
KANNUR DISTRICT-670511.
4 SHIJU UTHIRALAMATTAM
S/O LATE VASU, KAKKOD, PRAPOYIL P.O,
KANNUR DISTRICT-670511.
5 ASOKAN KARAKKATT
S/O MOHAN KARAKKATT, PERUNTHADAM,
P.O.PRAPOYIL, KANNUR DISTRICT-670511.
6 SANTHOSH VILAYIL
EYYAMKALLY ROAD, P.O PRAPOYIL,
KANNUIR DISTRICT-670511.
7 K.V.PIRUSHOTHOMAN,
S/O VASU, PERUNTHADAM, P.O PRAPPOYIL,
KANNUR DISTRICT-670511.
8 NITHEESH KUMAR P.V.
S/O GOVINDHAN, PRAPOYIL P.O,
KANNUR DISTRICT-670511.
BY ADV C.P.PEETHAMBARAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
2 SUBAIDHA MOOPANTAKATH, AGED 47 YEARS
D/O ASSAINAR, PRAPOYIL P.O,
KANNUR DISTRICT-670511.
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Crl.M.C No. 4045 of 2021
OTHER PRESENT:
SREEJA. V PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 16.10.2023, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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Crl.M.C No. 4045 of 2021
CR
P.V.KUNHIKRISHNAN, J.
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Crl.M.C No. 4045 of 2021
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Dated this the 16th day of October, 2023
ORDER
The petitioners are accused Nos.1 to 8 in C.P.No.14 of 2020 on
the file of the Chief Judicial Magistrate Court, Payyannur, which is
now pending as S.C. No.165 of 2020 on the file of the Sessions Court,
Thalassery.
2. The prosecution case is that on 05.03.2013, one Mammu,
hurled an explosive towards the SNDP office at Prappoyil, Kannur
District, within the then Peringome Police Station limit and one
K.R.Santhosh informed this fact to the police. Infuriated by this, the
said Mammu assaulted the said Santhosh and attempted to commit
murder and thereby committed offences under sections 324, 506 (i)
(ii) and Section 308 IPC and the police registered the case as Crime
No.128 of 2013 of Peringome Police Station. As a counter blast, it is
submitted that the 2nd respondent herein, the wife of said Mammu filed
a private complaint before the Judicial First Class Magistrate Court
Payyannur as evident by Annexure A1. After Section 202 Cr.P.C
enquiry, the case was numbered as C.C. No.417 of 2014 and the
Magistrate issued summons to the petitioners and they entered
Crl.M.C No. 4045 of 2021
appearance. The case was proceeded as a warrant case. The evidence
under Section 244 Cr.P.C was permitted to be adduced and four
witnesses were examined on the side of prosecution. Thereafter, a
charge was framed under Sections 141, 142, 146, 148, 354, 294(b)
324, 423, 341, 447 and 506(ii) read with Section 149 IPC. Even
though an offence under Section 391 IPC was alleged in Annexure A1
complaint, learned Magistrate has not taken cognizance is the
submission. It is also submitted that the order not taking cognizance
under Section 391 IPC was not challenged by the 2 nd respondent
complainant, is the further submission. After framing charge, the 2 nd
respondent was cross examined and Annexure A3 is the certified copy
of the deposition. Thereafter, the remaining available witnesses were
also cross examined and the prosecution evidence was closed and the
case was posted for the examination of the accused under Section 313
Cr.P.C. The accused were questioned under Section 313 Cr.P.C. and
posted the case for defence evidence. Thereafter, the matter was heard
on 07.02.2020. But on 18.02.2020, the learned Magistrate, as per
Annexure A4, the B Diary proceedings, recorded that the offence
under Section 391 IPC is also made out. Hence, the learned
Magistrate decided to invoke Section 323 Cr.P.C. Annexure A5 is the
order passed by the learned Magistrate by which the powers under
Crl.M.C No. 4045 of 2021
Section 323 Cr.P.C was invoked. Aggrieved by the same, this Crl.M.C
is filed.
3. Heard counsel for the petitioner and the Public Prosecutor.
4. The short point to be decided in this case is whether the
order passed by the learned Magistrate invoking the powers under
Section 323 Cr.P.C is correct or not. Section 323 Cr.P.C reads as
follows:
"323. Procedure when, after commencement of inquiry
or trial, Magistrate finds case should be committed.- 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 that Court under the provisions hereinbefore
contained and thereupon the provisions of Chapter XVIII
shall apply to the commitment so made."
5. As per Section 323 Cr.P.C, if it appears to the Magistrate
at any stage of the inquiry into an offence or a trial before signing the
judgment that the case ought to be tried by the court of session, he
shall commit it to that court. Annexure A5 is the order passed by the
learned Magistrate. It will be better to extract the relevant portion of
Annexure A5 order:
Crl.M.C No. 4045 of 2021
"3. Originally this case was taken in to file CC-417/14
even though there is an offence U/s 391 IPC. Moreover
that the matter was proceed as if it is warrant trial case
otherwise than on police case. At the time of arguments, it
is noticed that this matter ought to have been taken as CP
instead of CC. Hence I am of the view that section 323 of
CrPC can be invoked. Hence the above CC.No.417/14
converted into CP-14/2020."
6. It is the case of the petitioner that Section 391 IPC was
excluded at the time of taking cognizance and that part of the order is
not challenged by the complainant and that became final. Thereafter,
the learned Magistrate, invoking the powers under Section 323 Cr.P.C,
committed the case observing that the matter ought to have been taken
as committal proceedings instead of calendar case. I am of the
opinion that the learned Magistrate has not complied with the
condition precedent before committing the case invoking the powers
under Section 323 Cr.P.C. To invoke Section 323 Cr.P.C, it should
appear to the Magistrate that the case ought to be tried by the Sessions
Court. Since the words "it appears to him at any stage .............."
is used in Section 323 Cr.P.C, it is clear that when a Magistrate
invokes the powers under Section 323 Cr.P.C, the reason for the same
should be recorded. In other words, the Magistrate is required to give
reason for thinking that the case ought to be tried by the Sessions
Court, while invoking Section 323 Cr.P.C. Therefore, according to
Crl.M.C No. 4045 of 2021
me, a speaking order is necessary before invoking the powers under
Section 323 Cr.P.C. A perusal of Annexure A5 order would show that
the order passed by the learned Magistrate is not a speaking order
stating the reason for thinking that the case ought to be tried by the
Sessions Court. Therefore, I am of the considered opinion that
Annexure A5 order is to be set aside and the learned Magistrate is to
be directed to reconsider the matter as to whether Section 323 Cr.P.C
should be invoked or not.
Therefore, this Crl.M.C is disposed of in the following manner:
1. Annexure A5 order dated 20.02.2020 of the Judicial First
Class Magistrate Court, Payyannur in C.P. No.14 of 2020 is
set aside including the order committing the case to the
Sessions Court.
2. The Judicial First Class Magistrate Court, Payyannur is
directed to reconsider whether Section 323 Cr.P.C is to be
invoked in the light of the observations in this order.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
das
Crl.M.C No. 4045 of 2021
APPENDIX OF CRL.MC 4045/2021
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE COMPLAINT IN CMP
NO.25/2014 ALONG WITH THE SWORN
STATEMENT OF WITNESSES ON THE FILE OF
JUDICIAL FIRST CLASS MAGISTRATE COURT,
PAYYANNUR.
Annexure A2 CERTIFIED COPY OF THE SECTION 244
CRL.P.C. EVIENCE OF CW-2 IN C C
NO.417/2014 JUDICIAL FIRST CLASS
MAGISTRATE COURT, PAYYANNUR.
Annexure A2(A) CERTIFIED COPY OF THE SECTION 244
CRL.P.C. EVIENCE OF CW-3 IN C C
NO.417/2014 JUDICIAL FIRST CLASS
MAGISTRATE COURT, PAYYANNUR.
Annexure A2(B) CERTIFIED COPY OF THE SECTION 244
CRL.P.C. EVIENCE OF CW-4 IN C C
NO.417/2014 JUDICIAL FIRST CLASS
MAGISTRATE COURT, PAYYANNUR.
Annexure A3 CERTIFIED COPY OF DEPOSITION OF THE 2ND
RESPONDENT IN CHIEF AS WELL AS IN CROSS
EXAMINATION IN C.C.NO.417/2014 OF
JUDICIAL FIRST CLASS MAGISTRATE COURT.
Annexure A4 TRUE COPY OF THE B DIARY PROCEEDINGS IN
C C NO.417/2014 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT, PAYYANNUR.
Annexure A5 CERTIFIED COPY OF THE ORDER IN C.P NO.
14/2020 DATED 20.02.2020 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT,
PAYYANNUR.
