IN RE: STATE Vs. STATE

JUDGEMENT

(1.) The question that arises for determination in these criminal references is whether the trial Magistrate has the right to dispense with the Presence of a person and remove him from partv array if it is conclusively established that he is not an accused person charged with any offence in the case under enauirv or trial.

(2.) These references came before us on account of an order of a learned single iudge of this court under Section 3 of the Kerala High Court Act. 1958. The District Magistrate (Judl.) Tellicherrv referred these cases under Section 438 Criminal P. C. to this Court to pass an order in accordance with law setting aside the order of the Sub Magistrate, Cannanore passed on 30-11-1971 in C.C. 984/1971 and C C. 985/1971.

(3.) On the strength of a First Information statement of one Assanand Kundan two separate crimes were registered at the police station. Pavangadi on 25-5-1970. There were 7 accused persons in the first crime and 5 in the other in each of which the offences alleged to have been committed were under Sections 143. 147 and 323 read with Section 149 of the Penal Code. After investigation, a report under Section 170 Criminal P. C. and final report under Section 173 Criminal P. C-had been filed beforp the Sub Magistrate by the Sub Inspector. Pavangadi in each of these cases when the Magistrate took these cases to file in C.C. 984/71 and C. C 985/71 and took cognizance of the offences on sending summons to the accused persons in each of these cases. When thev appeared before the Magistrate on 30-10-1971 thev had been supplied with all the documents which the prosecution wanted to relv upon in the prosecution of the case against them- From 30-10-1971 to 30-11 1971 these cases underwent few adiourn-ments during which time the Magistrate, the accused persons, the rounsel who appeared for them and even the Sub Inspector who laid the charge against the accused persons realised that the 5th accused described as Narayanan, son of Raman Per-uvannan was not the real accused and that his name was wronglv entered in the police charge.