VIJAYAN R Vs. STATE OF KERALA

JUDGEMENT

(1.) Father of a child, aged four years, which succumbed to the injuries sustained in a road accident involving a vehicle driven by the 2nd respondent, in which the 3rd respondent, his wife, attended to children taken in that vehicle to different schools, has filed this revision, impeaching the propriety, legality and correctness of the order passed by the learned Additional Sessions Judge, (Fast Track-I), Thrissur, by which the case committed to Sessions Court for trial has been remitted to the magistrate, holding that no offence triable by Sessions Court is made out as imputed in the final report filed by the police. The unfortunate incident resulting in the death of the child, it is alleged, occurred when the vehicle was parked for dropping the child near its house. While the child crossed over the road on account of alleged recklessness and, perhaps, culpable criminal negligence on the part of the driver, and also the attendant of the vehicle, his wife, who too travelled in that vehicle, to facilitate the collection and dropping of the children taken to different schools, the vehicle ran over the child, who later, succumbed to the injuries sustained. The crime registered over the incident led to the indictment of the husband and wife, the accused, for offences under Sections 279,336and 304 of the Indian Penal Code. The magistrate, before whom the final report was laid, after complying with the formalities covered by Section 207 of the Code of Criminal Procedure {for short "the Code"}, noticing that the offences included those exclusively triable by a Sessions Court committed the case under Section 209 of the Code. On such committal, after appearance of the accused and hearing the public prosecutor and also the counsel for the accused and upon consideration of the materials tendered by the prosecution, as envisaged under Sections 227 and 228 of the Code, the learned Sessions Judge coming to the conclusion that no offence exclusively triable by the Sessions Court is made out, passed the impugned order transferring the case to the Judicial Magistrate of the First Class-III, Thrissur, for trial and disposal. That order is assailed in this revision as illegal and unsustainable by the revision petitioner/father of the victim in the case.

(2.) 1 heard the learned counsel for the petitioner and also the counsel who appeared for respondents 2 and 3/the accused in the case.

(3.) Adverting to the views expressed in the impugned order that no sessions offence is made out in the case, the learned counsel for the petitioner contended that it would preclude the magistrate, even after collecting evidence, to commit the case, if serious offences triable by the Sessions Court are disclosed by such evidence. Further more, it is contended that the materials tendered by the prosecution disclose that sessions offences are involved, and where it is so expressed by the investigating agency, after collection of the materials, the learned Sessions Judge had gone wrong in concluding that there was no intention of causing death and so much so, the offence of culpable homicide not amounting to murder falling under Section 304 of the Indian Penal Code would not lie.