MADAMPATHU BALAKRISHNAN Vs. PULIYANKODE NANU AND THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR

JUDGEMENT

(1.) THIS criminal revision petition has come up from proceedings initiated by the present petitioner before the Sub Divisional Magistrate's Court, Tirur under Section 133 Cr.P.C. Initially, the complaint was allowed by the learned Sub Divisional Magistrate and the same was challenged by the first respondent before the Sessions Court, Manjeri. The revision was allowed and the matter was remanded back to the Sub Divisional Magistrate. After remand, a Commission was taken out and an Advocate Commissioner was appointed, who filed a report after local inspection. Even though the first respondent herein had filed detailed objections to the Advocate Commissioner's report, without examining the Advocate Commissioner, the learned Sub Divisional Magistrate again allowed the complaint by relying on the Advocate Commissioner's report. Challenging the said order, criminal revision petition No. 48/2002 was preferred by the first respondent herein before the Sessions Court, Manjeri. The learned Sessions Judge, vide order dated 07.02.2003, allowed the revision and remanded the matter back to the Sub Divisional Magistrate's Court, Tirur, thereby giving an opportunity to the petitioner herein as well as the first respondent to examine the Advocate Commissioner and to bring the matter in evidence. The said remand order is under challenge by the original complainant. The learned counsel for the first respondent has invited my attention to paragraph 10 of the impugned order, whereby the matter has been discussed in detail by the learned Sessions Judge for arriving at the conclusion that the examination of the Advocate Commissioner is a legal requirement for enabling the learned Sub Divisional Magistrate to consider the report. Unlike, in the case of Order XXVI Rule 10(2) of the Code of Civil Procedure, where the Advocate Commissioner's report will become part of the records, in a proceedings before the Sub Divisional Magistrate as the one in this case, the learned Sub Divisional Magistrate may look into the report as evidence. In such case, especially when the first respondent had filed detailed objections as against the Advocate Commissioner's report, the learned Sub Divisional Magistrate ought to have ordered the examination of the Advocate Commissioner in order to enable the learned Sub Divisional Magistrate to look into the Commissioner's report.

(2.) ON hearing either side and on perusing the order passed by the court below, I do not find any illegality, irregularity or impropriety in the impugned order. This Crl.R.P. is devoid of merits and is only to be dismissed and I do so.